e-issn 2549-0680 vol. 5, no. 2, july 2021, pp. 172-184 doi: https://doi.org/10.24843/ujlc.2021.v05.i02.p05 this is an open access article, distributed under the terms of the creative commons attribution licence (http://creativecommons.org/licenses/by/4.0/), 172 distribution and revenue sharing of natural resources in indonesia: autonomous region and legal pluralism perspective putu gede arya sumerta yasa* faculty of law, universitas udayana, bali, indonesia abstract the distribution and revenue sharing of natural resources in indonesia is considered a very important issue. the exploitation of natural resources of a particular region can be implemented by referring to the concept of regional autonomy. in practice, not all regional governments can take advantage of the natural resources situated in the region. the research aims to review and analyze the arrangement of revenue sharing and natural resources based on the principle of decentralization in the balance of national and regional finances in indonesia and analyze the autonomous region in indonesia from a legal pluralism perspective. this study is normative legal research using statutory, conceptual, and analytical approaches. the results suggested that the arrangement of the division of funds for revenue based on decentralization in indonesia has not fully reflected the principle of proportionality, as it is perceived not providing just and proper share for some regions. in achieving public welfare and social justice at the lowest level of governance, the existence of customary villages in bali may serve as a solution in addressing the issue of regional management on natural resources along with its potential benefits. parallel to this concern, the customary village can also play an indirect role in achieving justice, equity, and harmony in the regions. therefore, the synergy between the national and regional governments, including customary villages undoubtedly reflects legal pluralism. keywords: local government; natural resources; autonomous region; revenue sharing; customary village. 1. introduction the dynamics of fiscal decentralization in the last three decades put the distribution and revenue sharing of natural resources in indonesia becoming a very important issue.1 it is one of the financial problems in the administration of government, both at the national government and local government, due to their interests to raise sources of funds through the authority given by the legislation. natural resources can be conceived as everything that comes from nature and is utilized to meet the needs of people's lives, which includes fisheries, forestry, water, and non-renewable sources.2 the components of ** email/corresponding author: arya_sumerthayasa@unud.ac.id 1 roy bahl and bayar tumennasan. “how should revenues from natural resources be shared in indonesia?.” in reforming intergovernmental fiscal relations and the rebuilding of indonesia: the'big bang'program and its economic consequences, ed. james alm, jorge martinez-vazquez, sri mulyani indrawati, (united kingdom: edward elgar, 2004), 222. 2 quentin grafton, et.al, the economics of the environment and natural resources. (new york: john wiley & sons, 2008), 125. mailto:arya_sumerthayasa@unud.ac.id distribution and revenue sharing of natural resources in indonesia: autonomous region and legal pluralism perspective putu gede arya sumerta yasa 173 natural resources are not only in the form of animals, plants , or other biotic components. in practice, abiotic components may also be classified as natural resources such as natural gas, petroleum, water, soil , and various metals that are used to meet the needs of the life of human beings. exploitation shall be done appropriately and wisely by paying attention to natural conditions and carried out for the benefit of the community. ideally, the exploitation of natural resources in an area shall be aimed at meeting the needs as well as increasing the prosperity of the people around the area.3 from a sharing of authority perspective, natural resource exploitation may be exercised by a region under a regional autonomy framework that allows the region to regulate its households, managing natural resources in the area, and allocating funds as a result of its utilization.4 in practice, facts showed that not all regions can take advantage of the natural resources in their area. as an example, there is a case where areas with plentiful resources in a region are not classified as natural resources, entailing that local government has no authority to exploit them. there are also areas known for abundant natural resources but its people still live in poor and alarming conditions. in addition, some regions in the same province fight for a just and equal share of funds resulted from natural resources utilization. the demands for improvement in financial management in the regions are then motivated by the spirit of regional autonomy as stipulated in law no. 32 of 2004 concerning regional government and law no. 33 of 2004 concerning national and regional financial balance. this research aims to analyze, observe , and elaborate the arrangement of revenue -sharing for natural resources based on the principle of decentralization under the framework of the financial balance of national and regional governments in indonesia. 5 this study also examines the application of regional autonomy in accordance with the concept of legal pluralism. first, it examines the division of regional autonomous-based natural resources in indonesia. second, it analyzes the regional autonomy in indonesia from the perspective of legal pluralism, by using bali as an example. previous research, for example , conducted by ledyawati in 20176 and johan erwin isharyanto in 20187 studied the authority of local governments 3 cheikh mbow, et. al, “land resources opportunities for a growing prosperity in the sahel.” current opinion in environmental sustainability 48 (2021): 88. 4 jesse c. ribot, et. al, “recentralizing while decentralizing: how national governments reappropriate forest resources.” world development 34, no.11 (2006): 1865. 5 some basic ideas were presented in a paper written by the author in a discussion organized by lembaga administrasi negara (institute of public administration), at faculty of law udayana university, denpasar, 12-13 june 2013. 6 ledyawati, “kewenangan pemerintah daerah dalam pengelolaan sumber daya alam pertambangan minerba di era otonomi daerah,” jurnal agregasi: aksi reformasi government dalam demokrasi 5, no. 1 (2017): 39. udayana journal of law and culture vol. 5 no. 2, jul y 2021 174 within the framework of regional autonomy. even the present article reflects the same topic, it has a different focus, that is to examine the regulation or arrangement of revenue -sharing funds and natural resources based on the principle of decentralization in the balance of national and regional finance in indonesia and regional autonomy in accordance with the concept of legal pluralism. this article is normative legal research that uses statutory, conceptual, and analytical approaches. the statutory approach is used to describe laws and regulations at both national and regional levels that have relevance to the topic discussed. the conceptual and analytical approaches are applied to explain as well as provide an advance d understanding of the legal concept of re gional autonomy, source of revenue, and authority of local government. 2. result and analysis 2.1. division of natural resources based on autonomous regions in indonesia the 1945 constitution of the republic of indonesia (hereinafter, indonesian constitution, is the fundamental rule that regulates the relationship between the national government and the regions. in the context of territorial division, indonesia is divided into provinces, and the provinces are further divided into regencies and cities. 8 the authority relations between those levels of governments are regulated by having regard to the particularities and diversity of each region.9 in addition, the relations between the national government and the regions concerning finances, public services, and the use of natural and other resources are regulated and implemented with justice and equity.10 in implementing decentralization to those divided areas, the national governments and the regions should manage a harmonious relationship.11 cheema and rondinelli conceive three forms of decentralization, namely “the act as a way for transferring authority, responsibility, and resources; through deconcentration, delegation or devolution; from the center to lower levels of administration”.12 this concept is in line with the basic principle of 7 johan erwin isharyanto, “pengelolaan sumberdaya perikanan dalam kerangka undang-undang otonomi daerah.” jurnal ilmiah hukum dan dinamika masyarakat 15, no. 1 (2018): 34. 8 the 1945 constitution of the republic of indonesia, art. 18 (1). 9 ibid., art. 18a (1). 10 ibid., art 18a (2). 11 abdul rauf alauddin said, “pembagian kewenangan pemerintah pusatpemerintah daerah dalam otonomi seluas-luasnya menurut uud 1945.” fiat justisia: jurnal ilmu hukum 9, no. 4 (2015): 593. 12 rachmat hidayat, “political devolution: lessons from a decentralized mode of government in indonesia.” sage open 7, no. 1 (2017): 1. distribution and revenue sharing of natural resources in indonesia: autonomous region and legal pluralism perspective putu gede arya sumerta yasa 175 decentralization in indonesia that allows regional governments to manage their own budget.13 the improvement of local government laws and regulations and the balance of national and regional finances are expected to enable the flexibility of the regions to fulfill the needs of the people in the regions. it reflects the state’s purpose to foster public welfare and social justice as stipulated in the indonesian constitution. law no. 17 of 2003 on state finances stipulates that the financial administration of the state have principles related to the rules of good state administration: 1. result-oriented accountability (money follows function); 2. professionalism; 3. proportionality; 4. openness in management; and 5. financial audit by an independent audit body. these principles are related to the rules of good state administration, especially with regards to the relationship between the national and regional governments that refers to the granting of authority to the regions as stipulated in law no. 23 of 2014 concerning regional government (hereinafter regional government law).14 improvements in the financial sector in the relationship between the national and local governments include the legal framework for the distribution of national resources.15 it gives great hope for changes towards a more democratic, transparent, and accountable state administration as well as the realization of good governance. as regional governance is carried out with the principle of autonomy,16 regions are allowed to take initiative in formulating regional policies, adopt implementation tools, regulate and explore sources of finance in the form of regional taxes and retributions. therefore, regions are entitled for managing regional assets, collecting regional taxes and levies, and obtaining other legitimate sources of income. law no. 28 of 2009 concerning regional taxes and levies. under this law, the distribution of revenue -sharing funds, the land, and building taxes, as 13 ehtisham ahmad and ali mansoor, “indonesia: managing decentralization.” in managing fiscal decentralisation ed. ethisham ahmad and vito tanzi (london and new york: routledge, 2002): 2. 14 see fatkhul muin, “otonomi daerah dalam perspektif pembagian urusan pemerintah-pemerintah daerah dan keuangan daerah.” fiat justisia 8, no. 1 (2014): 75. 15 see: the decree of the people's consultative assembly n o: i/mpr/2003 concerning the review of the material and legal status of the decree of the people's consultative assembly of the republic of indonesia 1960 to 2002 in article 4 point 3 of the decree of the people's consultative assembly of the republic of indonesia n o. xv/mpr /1998 on the implementation of regional autonomy; settings; division; and equitable utilization of national resources; and central and regional financial balance in the framework of the unitary state of the republic of indonesia 16 listijowati. “tinjauan yuridis kedudukan dan hubungan antara dprd dan pemerintah daerah menurut uu. 32 tahun 2004 tentang pemerintah daerah.” justice pro: jurnal ilmu hukum 2, no. 1 (2018): 54. udayana journal of law and culture vol. 5 no. 2, jul y 2021 176 well as land and building rights acquisition fees, have been handed over to regencies or municipalities, except for land or areas used for plantation, forestry, and mining activities. this type of tax is not entirely profitable for the regions because there are areas where land/buildings do not have a high value, especially in dry or poor areas. thus, the type of tax that produces the most income in the region that is submitted or made the object of profit-sharing tax is related to the geographical conditions of the region. article 285 regional government law determines that sources of regional income consist of: 1. local revenue, 2. levies and; 3. the results of the management of regional assets set aside; and 4. other areas of legitimate revenue (income transfer and other regions legitimate income) the balancing fund as a source of regional financial revenue consists of revenue-sharing funds, general allocation funds, and special allocation funds”.17 the arrangement of financial distribution between the national government and the regions is regulated in law no. 33 of 2004 concerning the financial balance between the national government and regional governments. the arrangement of revenue -sharing funds between the national and local governments consists of the tax and natural resources sectors. thus, the legislation in natural resources should be treated better than other fields, given the urgency for the public interest, which involves revenue sharing.18 the natural resource sector that is used as the object of profit -sharing funds are: a. forestry; b. general mining; c. fishery; d. petroleum mining; e. natural gas mining; and f. geothermal mining. the concept of financial balance between the government and local governments is a fair, proportional, democratic, transparent , and efficient distribution system in the framework of funding the i mplementation of decentralization. this takes into consideration the potential, conditions, and needs of the region as well as the amount of funding for the implementation of deconcentration and co-administration tasks.19 it is a general practice 17 irfan ferdiansyah, et. al. “pengaruh pendapatan asli daerah, dana alokasi umum, dana alokasi khusus, dan dana perimbangan terhadap belanja daerah.” inovasi 14, no. 1 (2018): 45. 18 herdiansyah hamzah, “legal policy of legislation in the field of natural resources in indonesia.” hasanuddin law review 1, no. 1 (2016): 110. 19 anggit sulistiawan, et. al., “bentuk dan mekanisme perencanaan keuangan daerah yang partisipatif guna mewujudkan akuntabilitas publik.” jurnal pembangunan hukum indonesia 1, no. 2 (2019): 147. distribution and revenue sharing of natural resources in indonesia: autonomous region and legal pluralism perspective putu gede arya sumerta yasa 177 that both national and regional governments conducted revenue sharing in distributing natural resource revenues.20 table 1. percentage of revenue sharing fund on natural sources21 natural sources national regional forestry 20% 80% general mining 20% 80% fishery 20% 80% petroleum (oil) mining 84,5% 15% natural gas mining 69,5% 30 % geothermal mining 20% 80% according to table 1, the revenue sharing fund is from forestry, general mining, fishery, petroleum mining, natural gas mining, and geothermal mining. 22 however, there are differences in revenue -sharing funds on natural sources. table 1 shows that the regional government received more revenue sharing than the national government for the same category of natural resources. for instance, the regional government shall receive 80% of the revenue sharing in the general mining sector, while the national government only received 20%. this percentage of revenue sharing also applies in the fishery sector, forestry sector, and geothermal mining sector. however, in petroleum mining and natural gas mining, the national government shall receive more revenue sharing than the regional government. it indicates a form of state control and that the state should, if able, directly manage natural resources. 23 hence, the concept of decentralization seemed to change the fiscal relationship between the national and the regional government, a relationship in which natural resource revenue -sharing plays a significant role.24 in 2011, there was a judicial review before the constitutional court of the republic of indonesia (the indonesian constitutional court) to law no. 33 of 2004 about the percentage of revenue sharing on oil and gas mining that is increasingly demanded by the regions. in decision no.71/puu 20 see anna louise strachan. “oil and gas revenue sharing.” vol. 1123. gsdrc helpdesk research report, 201. 1. http://www.gsdrc.org/docs/open/hdq1123.pdf 21 david manley, rani febrianti and hari subhash, “tangled web: the role of oil, gas and mining in funding regional government in indonesia,” natural resource governance institute, january 2020, 37. each oil and natural gas remain 0,5 % is allocated for educational expenditures. 22 yohanes maria vianey mudayen and herry maridjo. “the impacts of fiscal decentralization, institutional transformation, and regional revenue on income disparities between provinces in indonesia.” journal of economics, business, & accountancy ventura 20, no. 3 (2018): 250. 23 simon butt and fritz edward siregar. “state control over natural resources in indonesia: implications of the oil and natural gas law case of 2012.” journal of energy & natural resources law 31, no. 2 (2013): 116. 24 armida s. alisjahbana, “7. does indonesia have the balance right in natural resource revenue sharing?.” in the politics and economics of indonesia's natural resources, ed. budy p. resosudarmo (singapore: iseas publishing, 2005), 109. udayana journal of law and culture vol. 5 no. 2, jul y 2021 178 ix/2011, the indonesian constitutional court decided that the regulation provided in that law is not incompatible with the indonesian constitution, and therefore did not grant the claim.25 bali, a province that consists of 8 regencies and 1 city, is an example of a peculiar case regarding the sharing revenue . for decades, bali relies on tourism as a source of finance. one of the most potential incomes is visa on arrival (voa) along with levies in airport and ports are not part of regional revenue for bali, but lies to the national government. case on oil and gas as well as tourism sector represents that the balance of national and regional finance cannot fulfill the sense of justice , especially for regions that rely upon their income from those sectors. 2.2. autonomous regions in indonesia in the perspective of legal pluralism article 18b paragraph (2) of the indonesian constitution recognized the existence of customary law and customary community along with their traditional rights as long as it still exists and in accordance with the development of society and the prevailing law and principles in indonesia.26 an example of customary practices in indonesia can refer to bali province. masyarakat ad at (customary community) in bali, as well as in other areas in indonesia, has the authority to manage natural resources based on genealogical rights, inherited from their ancestors even before the existence of the republic of indonesia. therefore the natural resources cannot be separated from the ir existence. desa ad at (customary village) is a customary-based institution in bali that organizes the life of its community members in a specific territory in bali based on customary law. the customary village has autonomy in 3 (three) aspects, namely: 1) to establish its own customary law (e.g awig-awig, pararem, and other customary village decisions); 2) to implement the governance based on customary law; and 3) to apply customary law in resolving customary problems and cases that occur in customary villages.27 referring to article 18b paragraph (2) of the indonesia constitution, the government of bali issued several regulations to maintain the harmony of bali. as an example, the bali governor regulation no. 26 of 2020 concerning integrated environmental security system based on customary village (hereinafter governor regulation no. 26/2020) aims to embody the integrated environmental security system through the customary village in 25 justices of the consitutional court in the conlusion of the decision no.71/puuix/2011 found that the provisions of article 14 letter e and letter f of the financial balance between the national government and local government does not contradict with the indonesian constitution, 209. 26 putri triari dwijayanthi, et. al., “indigenous people, economic development and sustainable tourism: a comparative analysis between bali, indonesia and australia.” udayana journal of law and culture 1, no. 1 (2017): 20. 27 anak agung istri ari atu dewi , “eksistensi otonomi desa pakraman dalam perspektif pluralisme hukum.” jurnal magister hukum udayana 3, no. 3 (2014). 522. distribution and revenue sharing of natural resources in indonesia: autonomous region and legal pluralism perspective putu gede arya sumerta yasa 179 order to purify and maintain the sustainability of natural resources in bali, which is known as wana kerthi (forestry) and segara kerthi (fisheries).28 the existence of customary villages is regulated through the bali provincial regulation no. 4 of 2019 concerning customary villages (hereinafter the customary village regulation).29 this regulation recognizes that natural resources are a part of padruwen desa ad at, which means that it is considered to be material assets of the customary village for the sake of community prosperity.30 as an instance, the local government works jointly with the selat customary village in buleleng regency, called village-owned enterprises (bum des) to protect the forest and its surrounding as a part of natural resources.31 a similar concept is also implemented in pemuteran village, buleleng regency by establishing pecalang segara (seashore security) to maintain their fisheries ecosystem that is part of essential natural resources for the livelihood of the community.32 the synergy between the government and customary villages can be seen from the perspective of legal pluralism. legal pluralism is understood as a condition in which the validity of the law is more than one legal system. an understanding of the applicability of legal pluralism in indonesia is visible because of the recognition of the applicability of people ’s law and state law that is harmonized with state law.33 legal pluralism provides an overview of synergy between one legal system and another legal system together in a certain activity and relationship.34 synergy in legal pluralism is reflected in indonesia through the recognition of the existence of various types of laws, including customary law. this is also well reflected in bali due to the application of customary law in the daily life of the people . 28 dinas pemajuan masyarakat adat pemerintah bali, “visi dan misi,” https://dpma.baliprov.go.id/visi -dan-misi/ 29 see: bali provincial regulation no. 4 of 2019 concerning customary villages, art. 1 point (8) which stipulates that: customary villages are understood as a unit of customary law community in bali which has territory, position, original structure, traditional rights, own assets, traditions, manners of community life from generation to generation in the bonds of sacred places (kahyangan tiga or kahyangan desa), duties and authorities as well as the right to regulate and manage their own household.” 30 bali provincial regulation no. 4 of 2019 concerning customary villages 31 i wayan rideng, et. al. "model pengelolaan hutan desa berbasis desa adat di desa selat, kabupaten buleleng." community service journal (csj) 1, no. 1 (2018): 13. 32 anantatiwikrama tungga atmadja, nengah bawa atmadja, and tuti maryati. "pecalang segara: satuan tugas keamanan tradisional penjaga kelestarian lingkungan pantai dan laut: studi kasus di desa pakraman pemuteran, grokgak, buleleng, bali." jurnal bumi lestari 13, no. 1 (2013): 178. 33 see i nyoman nurjaya, “perkembangan pemikiran konsep pluralisme hukum.” paper presented in konferensi internasional tentang penguasaan tanah dan kekayaan alam di indonesia yang sedang berubah: “mempertanyakan kembali berbagai , jakarta.(2004): 117. 34 baktu bakti. “pluralisme hukum dalam mekanisme penyelesaian sengketa sumber daya alam di aceh.” kanun jurnal ilmu hukum 17, no. 1 (2015): 135. https://dpma.baliprov.go.id/visi-dan-misi/ udayana journal of law and culture vol. 5 no. 2, jul y 2021 180 john griffiths distinguished two kinds of legal pluralism, namely weak legal pluralism and strong legal pluralism.35 the concept of “weak legal pluralism” is also understood as state legal pluralism, which is another form of legal centralism that places state law in a superior position while other laws are in a hierarchy under state law.36 meanwhile, the concept of “strong legal pluralism” gives place to all legal systems in the same position so that it creates interaction and there is no domination between one legal system and another. 37 within the framework of legal pluralism, it provides an understanding that state law recognizes legal pluralism. it can be understood that customary law is seen as an integral part of the state legal system.38 in line with griffiths’ idea, werner menski reiterates 3 (three) main elements in the concept of legal pluralism namely society, the state, and values and ethics that interact and influence each other. 39 by virtue of making a breakthrough in the legal framework of the balance between national and regional finances, the existence of customary villages may serve as an option for a solution. the customary villages, as implemented in bali, may assist both national and regional governments to run the management in areas of natural resources. therefore, customary village indirectly plays a role in achieving justice, equity, and harmony in the regions. therefore, the synergy between the national government, regional governments, and customary villages, undoubtedly reflects legal pluralism. 3. conclusion efforts to improve the relationship between the national and local governments in the context of the finance sector include the legal framework for the distribution of resources. the arrangement for the distribution of profit-sharing funds based on decentralization in indonesia does not reflect the principle of proportionality. there remains an issue of injustice following the distribution scheme, e.g. oil and gas as well as tourism sectors, that give smaller portions of revenue to regions that having natural resources compare to what lies to the national government. the existence of a customary community, customary law, and its traditional rights are guaranteed by the indonesian constitution. bali may be used as an example of how customary village s may play a role to manage 35 von benda-beckmann, franz. “who’s afraid of legal pluralism?.” the journal of legal pluralism and unofficial law 34, no. 47 (2002): 47. 36 dewi, loc. cit. 37 wahyu nugroho. “konsep integrasi kebijakan pengelolaan pertambangan perspektif pluralisme hukum di indonesia.” masalah-masalah hukum 48, no. 4 (2019): 405. 38 anak agung istri ari atu dewi, i gede pasek pramana, and putu edgar tanaya. “hukum adat dan hukum nasional: elaborasi dalam penyelenggaraan pemerintah daerah mewujudkan kesejahteraan masyarakat.” www.mpr.go.id: 126. 39 i putu sastra wibawa. “perlindungan dan pelestarian bendega sebagai organisasi tradisional nelayan di bali.” dharmasmrti: jurnal ilmu agama dan kebudayaan 20, no. 1 (2020): 73. http://www.mpr.go.id/ distribution and revenue sharing of natural resources in indonesia: autonomous region and legal pluralism perspective putu gede arya sumerta yasa 181 the natural resources that parallel with the effort in achieving wealth in the region. some regional regulations have strengthened the position of the customary village to maintain the sustainability of natural resources in bali, which is known as wana kerthi (forestry) and segara kerthi (fisheries). the synergy between national and regional governments as well as customary villages indeed indicates implementation of the legal pluralism. bibliography book ahmad, ehtisham, and ali mansoor. 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https://doi.org/10.1016/j.worlddev.2005.11.020 https://doi.org/10.24843/ujlc.2017.v01.i01.p02 http://dx.doi.org/10.29264/jinv.v14i1.3546 http://dx.doi.org/10.20956/halrev.v1i1.218 https://doi.org/10.1177/2158244016686812 http://dx.doi.org/10.36356/hdm.v15i1.638 https://doi.org/10.53027/jp.v2i1.230 https://doi.org/10.1016/j.cosust.2020.11.005 http://dx.doi.org/10.14414/jebav.v20i2.878 https://doi.org/10.25041/fiatjustisia.v8no1.288 https://doi.org/10.14710/mmh.48.4.2019.402-410 https://doi.org/10.1016/j.worlddev.2005.11.020 distribution and revenue sharing of natural resources in indonesia: autonomous region and legal pluralism perspective putu gede arya sumerta yasa 183 rideng, i. w., astara, i. w. w., & nahak, s. model pengelolaan hutan des a berbasis desa adat di desa selat, kabupaten buleleng. community service journal 1, no. 1 (2018). 8-14 said, abdul rauf alauddin. “pembagian kewenangan pemerintah pusat pemerintah daerah dalam otonomi seluas-luasnya menurut uud 1945.” fiat justisia: jurnal ilmu hukum 9, no. 4 (2015): 577-602. https://doi.org/10.25041/fiatjustisia.v9no4.613 sulistiawan, anggit, budi ispriyarso, and aprista ristyawati. “bentuk dan mekanisme perencanaan keuangan daerah yang partisipatif guna mewujudkan akuntabilitas publik.” jurnal pembangunan hukum indonesia 1, no. 2 (2019): 146157. https://doi.org/10.14710/j phi.v1i2.146-157 von benda-beckmann, franz. “who’s afraid of legal pluralism?.” the journal of legal pluralism and unofficial law 34, no. 47 (2002): 37-82. https://doi.org/10.1080/07329113.2002.10756563 wibawa, i. putu sastra. “perlindungan dan pelestarian bendega sebagai organisasi tradisional nelayan di bali.” dharmasmrti: jurnal ilmu agama d an kebud ayaan 20, no. 1 (2020): 6776. https://doi.org/10.32795/ds.v20i1.643 legal documents indonesia. the 1945 constitution of the republic of indonesia. ______. the decree of the people's consultative assembly no: i/mpr/2003 concerning the review of the material and legal status of the decree of the people's consultative assembly of the republic of indonesia 1960 to 2002. ______. the decree of the people's consultative assembly of the republic of indonesia no. xv/mpr /1998 on the implementation of regional autonomy; settings; division; and equitable utilization of national resources; and central and re gional financial balance in the framework of the unitary state of the republic of indonesia. ______. law of the republic of indonesia no. 17 of 2003 on state finances ______. law of the republic of indonesia no. 32 of 2004 concerning regional government ______. law of the republic of indonesia no.33 of 2004 concerning the financial balance between the national government and regional governments. ______. law of the republic of indonesia no. 28 of 2009 concerning local taxes and changes. ______. law of the republic of indonesia no. 6 of 2014 concerning customary villages. ______. law of the republic of indonesia no. 23 of 2014 concerning regional government. ______. government regulation no. 12 of 2o19 concerning the management of regional finance and minister of domestic affairs regulation no. 77 of 2020 concerning technical guidance on the management of regional finance https://doi.org/10.25041/fiatjustisia.v9no4.613 https://doi.org/10.14710/jphi.v1i2.146-157 https://doi.org/10.1080/07329113.2002.10756563 https://doi.org/10.32795/ds.v20i1.643 udayana journal of law and culture vol. 5 no. 2, jul y 2021 184 bali province. bali provincial regulation no. 4 of 2019 concerning customary villages. ______. bali governor regulation no. 26 of 2020 concerning integrated environmental security system based on customary village. other documents manley, david, rani febrianti and hari subhash, “tangled web: the role of oil, gas and mining in funding regional government in indonesia,” natural resource governance institute, january 2020, https://resourcegovernance.org/sites/default/files/documents/tangl ed-web-the-role-of-oil-gas-and-mining-in-funding-regionalgovernments-in-indonesia.pdf strachan, anna louise. oil and gas revenue sharing. vol. 1123. gsdrc helpdesk research report, 2014. http://www.gsdrc.org/docs/open/hdq1123.pdf case law constitutional court of indonesia. decision of the constitutional court of indonesia no. 31/puu-v/2007. ______. decision of the constitutional court of indonesia no. 71/puu ix/2011. website content dinas pemajuan masyarakat adat pemerintah bali. “visi dan misi.” https://dpma.baliprov.go.id/visi-dan-misi/ nurjaya, i nyoman nurjaya, “perkembangan pemikiran konsep pluralisme hukum.” paper presented in konferensi internasional tentang penguasaan tanah d an kekayaan alam di indonesia yang sedang berubah: “mempertanyakan kembali berbagai , jakarta (2004): 1-17. available in https://docplayer.info/35514477-perkembanganpemikiran-konsep-pluralisme-hukum-1.html https://resourcegovernance.org/sites/default/files/documents/tangled-web-the-role-of-oil-gas-and-mining-in-funding-regional-governments-in-indonesia.pdf https://resourcegovernance.org/sites/default/files/documents/tangled-web-the-role-of-oil-gas-and-mining-in-funding-regional-governments-in-indonesia.pdf https://resourcegovernance.org/sites/default/files/documents/tangled-web-the-role-of-oil-gas-and-mining-in-funding-regional-governments-in-indonesia.pdf http://www.gsdrc.org/docs/open/hdq1123.pdf https://dpma.baliprov.go.id/visi-dan-misi/ https://docplayer.info/35514477-perkembangan-pemikiran-konsep-pluralisme-hukum-1.html https://docplayer.info/35514477-perkembangan-pemikiran-konsep-pluralisme-hukum-1.html e-issn 2549-0680 vol. 5 no. 1, january 2021, pp. 58-71 doi: https://doi.org/10.24843/ujlc.2021.v05.i01.p04 this is an open access article, distributed under the terms of the creative commons attribution licence (http://creativecommons.org/licenses/by/4.0/), 58 establishing a regional-owned limited liability company: would it support an integrated tourism management in bali? luh ayu nadira saraswati* emerhub, market entry consultant, bali-indonesia anak agung gede duwira hadi santosa** faculty of law, udayana university, bali-indonesia abstract the rapid development of tourism in bali has made this sector becomes the main pillar of the economy. facts indicate that the tourism industry in bali is not parallel with the equal distribution, which entails an imbalance in both tourism facilities and tourism management. this has an impact on chaotic tourism management: many tourist destinations and attractions were not managed properly and could not develop their potency optimally. this situation reflects an urgency to conceive an integrated tourism development and management. the bali provincial government has addressed this issue by launching the concept of one island one management. this paper aims to analyze the tourism management arrangements in bali with the various challenges faced in its application and to assess the establishment of regional-owned limited liability company in realizing the concept of an integrated tourism management in bali. in terms of writing methodology, this paper applies a normative legal research. the result suggested that a regional-owned limited liability company (llc) can support the realization of an integrated tourism management in bali. from a legal perspective, a regional-owned llc is subject to the company law, which entails that it will strengthen the professionalism in managerial aspects and also will accommodate the participation of the region through the shareholder forum. keywords: regional-owned enterprises; limited liability company; integrated tourism management; bali. 1. introduction 1.1. background tourism has continuously become the driving force of bali‟s economy that significantly contributed to the locally-generated revenue of the local governments. the rapid development of tourism in bali began in the 1970s and then continued in the following years. bali has increasingly established its position as a popular destination in the world. in line with the economic growth, the intensify in tourism activity is supported by the increase of per capita expenses. furthermore, information technology development and ** email/corresponding author: nadira@emerhub.com ** email : agung_santosa@unud.ac.id https://doi.org/10.24843/ujlc.2021.v05.i01.p04 http://creativecommons.org/licenses/by/4.0/ mailto:nadira@emerhub.com mailto:agung_santosa@unud.ac.id establishing a regional-owned limited liability corporation: would it support an integrated tourism management in bali? luh ayu nadira saraswati and anak agung gede duwira hadi santosa 59 transportation supported the growth of accessibility of tourism in the destination. 1 the development of international-class tourist accommodation facilities has begun by the development of the nusa dua area in south bali into a luxury tourist resort area managed by a state-owned enterprise, namely the bali tourism development corporation (btdc). the company was strongly supported by a conducive climate and synergy with the surrounding community, local government, and environmental carrying capacity. 2 the creation of exclusive and prestigious tourism areas has a positive impact on the community, such as creating job opportunities, generating income, and increasing the quality of the environment.3 high investment in the nusa dua area boosted the development of bali tourism in general. the success of nusa dua resorts stimulated the development of tourist accommodation in other areas in bali. in controlling this development, the bali provincial government designated 15 tourist residential areas along with supporting facilities such as restaurants and shopping centers. until now, bali has more than 35,000 hotel rooms consisting of cottages, budget hotels, and star hotels. the type of tourist accommodation is also developed such as guest houses, villas, bungalows, and boutique hotels with selling price variations. this diversity gives added value to bali because it offers tourists many choices.4 various supporting facilities such as restaurants, art shops/markets, entertainment facilities, and recreation have grown rapidly in tourist residential areas. tourism development has also an unexpected impact on the local peoples. there are around 75 holy places (hindu temples in bali) used as tourist objects and attractions. likewise, locally-believed sacred objects were profaned and transformed into tourism products.5 tourism development has also endangered the preservation of the natural environment. further, the development of some tourist accommodations seems to violate the law and regulations such as building permits and environmental impact analysis that threaten the sustainability of the ecosystem. tourism is still considered as an effective stimulus for development, although the good purposes of development goals are often breached in its process. 6 this situation demands tourism destination management planning and organizations on 1 gusti kade sutawa. “issues on bali tourism development and community empowerment to support sustainable tourism development.” procedia economics and finance 4, (2012): 414. 2 ida ayu kade werdika damayanti. “effectiveness of the implementation of corporate social responsibility by star hotels in nusa dua area to improve the environmental quality and community welfare.” atlantis press: advances in social science, education and humanities research 226 (2018): 496. 3 ibid. 4 badan pembinaan hukum nasional “pembentukan otonomi khusus bali dan pengaruhnya bagi keutuhan nkri ”. http://www.bphn.go.id/data/documents/lit-20115.pdf, 74. 5 ibid. 6 richard sharpley. “tourism and sustainable development: exploring the theoretical divide.” journal of sustainable tourism 8, no. 1 (2000): 11. http://www.bphn.go.id/data/documents/lit-2011-5.pdf http://www.bphn.go.id/data/documents/lit-2011-5.pdf udayana journal of law and culture vol. 5 no. 1, january 2021 60 regional and national scales. the planning should contain four basic tourism assets, namely natural tourism, historical tourism, cultural tourism, and a region‟s human tourism on a local and national level.7 the development of tourism seems to be not optimal in paying attention to local cultural values (local wisdom). providing the sustainability of the tourism sector, which has a very fragile structure, is related to how many people perceive the economic, socio-cultural, and environmental effects that arise from the tourism activities and their satisfaction with this situation. sustainable tourism development in destinations is in question due to the lack of consideration s on positive and negative effects arising from the local community and tourism development.8 therefore, it is urgent to develop a tourism regional-owned enterprise to ensure the proper management of the tourism industry. this article discussed two issues. first, how to regulate tourism management in bali with the various challenges faced in its application. second, it discusses whether the establishment of a regional-owned enterprise would realize the concept of an integrated tourism management in bali. it aims to analyze the tourism management arrangements in bali with the various challenges faced in its application and to assess the establishment of regional-owned limited liability company in realizing the concept of an integrated tourism management in bali. this research is expected to contribute to the evaluation of the bali provincial regional longterm development plan and bali provincial regional medium-term development. this paper is normative legal research that uses a statutory approach that examining primary and secondary legal materials. the legal materials are collected by using document study techniques while the analysis is presented qualitatively. 2. result and analysis 2.1. tourism management arrangements in bali 2.1.1. tourism management arrangements in the bali provincial regional long and medium terms development plan the direction of various industrial sectors development in bali is expressly regulated in the bali provincial regulation no. 6 of 2009 concerning bali provincial regional long-term development plan (hereinafter, bali province long-term development plan) and the bali provincial regulation no. 3 of 2019 concerning the bali provincial regional medium term development plan semesta berencana 2018-2023 (hereinafter, bali province medium-term development plan). 7 duran cankül & rahman temizkan. “the meaning of tourism degrees without law of tourism jobs.” journal of recreation and tourism research 6, no. 4 (2019): 504. 8 abdullah uslu, gurkan alagoz, & erkan güneş. “socio-cultural, economic, and environmental effects of tourism from the point of view of the local community.” journal of tourism and services 21, no.11 (2020): 2. establishing a regional-owned limited liability corporation: would it support an integrated tourism management in bali? luh ayu nadira saraswati and anak agung gede duwira hadi santosa 61 reflecting the dynamic resilience of bali‟s culture,9 bali province long-term development plan stated that cultural tourism is developed sustainably by increasing the involvement of local communities in planning, implementation, and supervision stages. it also implies a tendency to improve community welfare for encouraging competitiveness and the quality of the regional economy. the bali province long-term development plan underlines that the strengthening of regional, national and global competitiveness, industrial policies requires an integrated trade and investment policies by virtue of harmonizing their interrelated interests.10 there seems to an efforts to use the benefits of tourism not only to regional development but also to national development. tourism, and related sectors, had contributed significantly to the formation of the regional gdp and foreign exchange earnings.11 tourism development in bali indicates a collaborative effort between external and local stakeholders. it provides an interesting example of processes of globalization in the sense that both parties played their specific role in initiating and developing tourism. this can be seen through milestones of stages of bali tourism development.12 as outlined in the bali province medium term development plan, the main focus of balinese development includes efforts and strategies to maintain harmony and sanctity of nature, people, and balinese culture in facing local, national, and international challenges and problems. this medium term development plan uses a unified regional approach namely one island, one pattern, and one governance. the bali province medium term development plan is based on the tri hita karana philosophy which is further elaborated and operationalized in sad kerthi's local wisdom, including: efforts to purify the soul (atma kerthi), preserve forests (wana kerthi) and lakes (danu kerthi) as sources of clean water, the sea and the coast (segara kerthi), dynamic social and natural harmony (jagat kerthi), and building the quality of human resources individually and collectively (jana kerthi).13 the plan is implemented with a political, technocratic, participatory, top-down, and bottom-up approach to achieve effective and efficient governance. the island of bali, which is relatively small in terms of its area, is very potential to be self-reliantly managed under integrated management. the roles of government as stakeholders are to provide policies and site plans 9 michel picard, “cultural tourism in bali: cultural performances as tourist attraction,” cornell university press: indonesia 49 (1990): 37. 10 bali provincial regulation no. 6 of 2009 concerning the long term development plan (rpjpd) bali province, 2005-2025, art.4. 11 made antara & made sri sumarniasih. “role of tourism in economy of bali and indonesia” journal of tourism and hospitality management 5, no. 2 (2017): 40. 12 i nyoman darma putra, “localizing the global and globalizing the local: opportunities and challenges in bali island tourism development,” jurnal kajian bali 3, no. 2 (2013): 122. 13 bali provincial regulation no. 3 year 2019 concerning the middle term development plan for the semesta region planning bali province 2018-2023, elucidation udayana journal of law and culture vol. 5 no. 1, january 2021 62 and other planning documents, and function as a regulator.14 in terms of administration, the province of bali consists of eight regencies and one city. the government at both provincial level and regency/city level are entitled to create and implement their own regional regulations and policies. after political reform that enlarges the regional autonomy, tourism management seems to be out of control and goes too far. currently, each regency and city apply different tourist destination management, besides management performed at the provincial level. it is obvious that regency/city created its own management without fully taking into consideration or referring to the provincial policies. therefore, tourism in bali is managed by a variety of tourism destination management, namely nine destination management in regencies and city and one in the province. moreover, national-based agencies responsible for immigration, environment, and security affairs also implement tourism-related management in the region. 2.1.2. bali tourism policy evaluation prior to one island one management policy bali is an international brand due to awards given as the best destination in the world. behind the development of tourism that is so industrialized there are major problems behind it.15 one of them is the concern on balancing the spread of tourism development in all regions in bali. the idea of „one island, one management‟ is aimed to minimize the gap of tourism development between regencies and city. the expected paradigm is strengthening the position governor of bali in tourism management as well as granting him a special authority to impose sanctions on the head of regencies/cities for the violations of regulation in concern. another problem currently faced in bali tourism development is spatial planning. the adjustment of the regional spatial plan (rencana tata ruang wilayah/rtrw) of bali province is urgently needed to create a dynamic space in an integrated environmental system based on balinese culture that is imbued with hinduism while maintaining environmental sustainability in accordance with the tri hita karana (thk) philosophy. thk is a philosophy that underlies balinese people in fostering harmonious relationships with god, with fellow human beings, and with the environment.16 this inline with a global paradigm – sustainable development – which is suitable for a local society that has developed a very different 14 i wayan budiasa & i gusti agung ayu ambarawati, “community based agrotourism as an innovative integrated farming system development model towards sustainable agriculture and tourism in bali,” journal of the international society for southeast asian agricultural sciences 20, no. 1 (2014): 35. 15 i g mudana, i b p suamba, i m a putra & n w ardini, “practices of bali tourism development, threefolding, and tri hita karana local knowledge in new order indonesia,” journal of physics: conference series, no. 2 (2017): 1. 16 i gusti ayu agung omika dewi, “culture of tri hita karana on ease of use perception and use of accounting information system,” international journal of social sciences and humanities 2, no. 2 (2018): 78. establishing a regional-owned limited liability corporation: would it support an integrated tourism management in bali? luh ayu nadira saraswati and anak agung gede duwira hadi santosa 63 concept of the social and natural environment.17 several related comparative advantage attributes are critical to the development of sustainable tourism destinations, including climate, location, natural resources, tourism awareness among local citizens, and indigenous culture.18 seeing the potential for tourism that can contribute to regional development, the government consciously and continuously develops tourist objects and attractions. each regency/city in bali arranges and improves objects or areas that are considered potential as tourist destinations. however, the rate of tourism development still needs improvement, because it is not prepared by a clear planning pattern. the unclear spatial planning has an ecological consequence that would affect the surrounding community and may become a backfire the tourism development in the future. meanwhile, the development process also puts the involvement and participation of the community in a strategic position.19 therefore, a concept to realize integrated tourism management in bali is indeed needed. 2.2. establishing a regional-owned limited liability company to realize an integrated tourism management in bali 2.2.1. the purpose of establishing a tourism regional-owned enterprise tourism development in bali must lead to a sustainable tourism development that is reflected in a policy that protects and enhances the natural, social, and cultural resources. besides, most, if not all, sectors of the tourism industry have a vested interest in following such a policy. 20 sustainable tourism development also requires „the adoption of a new social paradigm relevant to sustainable living‟; herein lies what is, arguably, the greatest challenge to its achievement.21 this paper argues that a tourism regional-owned enterprise would make an effort to encourage regional development. it may be designed as a pioneer in the tourism business sector that is not yet attractive to the private sector. besides, the tourism regional-owned enterprise may become a driving force for the economy in the region because it aims at providing benefits for local economic development, providing public services, and making profits.22 it is also expected to provide quality goods and services for 17 sylvine picker chevalier & ketut budarma, “towards sustainable tourism in bali: a western paradigm in the face of balinese cultural uniqueness,” mondes du tourisme, no.1 (2016): 2. 18 salah hassan, “determinants of market competitiveness in an environmentally sustainable tourism industry,” journal of travel research 38, no. 3 (2000): 240. 19 i made sudjana, i komang gde bendesa & agung suryawan wiranatha, “sanur area development strategy towards green tourism destination,” david publishing: management studies 7, no. 5 (2019): 428. 20 m. wheeler., “applying ethics to the tourism industry,” business ethics, the environment & responsibility 1, no. 4 (1992): 228. 21 v. middleton and r. hawkins. practical environmental policies in travel and tourism – part i: the hotel sector. (travel and tourism analyst 6, 1993), 65. 22 nazaruddin lathif, mustika mega wijaya, & raden muhammad mihradi, “changes in the legal agency status of the pakuan bogor regional legal company in udayana journal of law and culture vol. 5 no. 1, january 2021 64 the fulfillment of the people's needs according to the regional characteristics and potency.23 to achieve this goal, the management of regional-owned enterprises must apply good corporate governance.24 besides, it must be able to carry out its duties as implementers of public services, especially in the economic field, to balance market forces, and participate in helping the development of small and medium enterprises.25 this expectation seems to be realized with the support from existing laws and regulations 2.2.2 the legal form of the tourism regional-owned enterprises as a solution to realize the concept of integrated tourism management in bali, the establishment of the regional-owned enterprise should be formed in what so-called a regional-owned limited liability company (hereinafter regional-owned llc). the regional-owned llc conducts business that providing goods and/or services in high quality and strong competitiveness for both domestic and international markets. thus, it can increase the profit and value of the company.26 referring to the legislation, the regional-owned llc in its operations is subject to llc law, because it can be classified as an independent entity with the following characteristics: 1. the liability arising is borne solely on the assets collected in the association. this is related to the company's status as a legal entity which is considered a separate legal subject apart from individuals, where the liability in an llc will only be limited to the paid-up capital. 2. the nature of mobility over participation rights, namely the freedom of each shareholder to take part in an llc. this participation is realized through the form of a stock institution, which aims to maintain the stability of the accumulated capital. 3. the management principle of an llc in accordance with the provisions of the applicable laws and regulations is carried out by an organ, where this provision means that the later management improving drinking water services in bogor city based on government regulation number 54 of 2017 concerning local government owned enterprises (bumd),” international journal of multicultural and multireligious understanding 8, no. 1 (2021): 125. 23maskun suwardi, p. eko prasetyo, “efisiensi teknis badan usaha milik daerah (bumd) bidang jasa produksi provinsi jawa tengah,” jurnal ekonomi & studi pembangunan 19, no 1 (2018): 11. 24 darwin nasution, “urgency of local-owned enterprises (bumd) law as good corporate governance basis in indonesia,” atlantis press: advances in social science, education and humanities research (assehr) 141, (2017): 117. 25adji suradji muhammad, irman, asmaul husna & eka suswaini, “re-organisasi badan usaha milik daerah: upaya meningkatan kemandirian daerah,” jurnal ilmu administrasi: media pengembangan ilmu dan praktek administrasi 17, no. 1 (2020): 36. 26fauzi syam, elita rahmi & arsyad, “eksistensi dan konstruksi yuridis badan usaha milik daerah pasca undang-undang pemerintahan daerah tahun 2014,” undang jurnal hukum: fakultas hukum universitas jambi 1, no. 2 (2018): 305. establishing a regional-owned limited liability corporation: would it support an integrated tourism management in bali? luh ayu nadira saraswati and anak agung gede duwira hadi santosa 65 cannot be carried out by shareholders, but by an independent institution whose position is separate as a shareholder. the organs in an llc according to the company law consist of the general meeting of shareholders (gms), the board of directors, and the board of commissioners which then carry out the activities covering the functions of policymaking, implementation, and supervision.27 it is generally conceived that a legal entity applies separation of assets obtained from authorized capital and paid-up capital as the llc's responsibility as a legal entity. llc‟s main interest is to obtain profits that also reflecting the interests of the shareholders. but an llc has to ensure that its business activities are not in conflict with the laws and regulations, public order, and/or morality. regional governments, in carrying out activities in the strategic business sector related to the livelihoods of many people, have to prioritize the benefit to the community. this means that the paradigm of benefits obtained is the implementation of optimal public services. in other words, regional-owned enterprise is considered to be profitable if has been given public benefits to be enjoyed by many people.28 the target of establishing tourism regional state-owned enterprise refers to article 331 paragraph (4) of law no. 23 of 2014 concerning regional government and article 7 of government regulation no.54 of 2017 concerning regional owned enterprise. whereas the objectives of establishing the regional -owned enterprise are to: a. provide benefits for regional economic development; b. providing public benefits in the form of providing quality goods and/or services to fulfill the livelihood of the community according to the conditions, characteristics, and potential of the area concerned based on good corporate governance; and c. earn profits. profits of regional -owned enterprise are a source of regional income that is very useful to finance development in order to improve people's welfare. regional-owned enterprise is a business entity whose capital is wholly or partly owned by the region. a regional-ownedllc is an llc which the capital is divided into shares wholly or at least 51% (fifty one percent) of the shares are owned by one region.29 the position of the regional 27rudhi prasetya. kedudukan mandiri dan pertanggung jawaban terbatas dari perseroan terbatas (surabaya: airlangga university press, 1983), 30. 28 see sri widiyastuti, “politik hukum badan usaha milik daerah (bumd) dalam kegiatan bisnis untuk mewujudkan kesejahteraan sosial.” law and justice 4, no. 1 (2019): 12. 29made gde subha karma resen & yudho taruno muryanto. “implikasi yuridis diundangkannya undang-undang nomor 23 tahun 2014 tentang pemerintahan daerah terhadap pengaturan badan usaha milik daerah di indonesia.” yustisia jurnal hukum 3, no. 3 (2019): 134. udayana journal of law and culture vol. 5 no. 1, january 2021 66 government in the regional-owned llc is as a shareholder who has rights in the gms to determine the direction of the company, including by selecting professional directors to achieve the objectives of the company in managing tourism destinations. in order to manage regional-owned enterprise professionally and in accordance with the principles of good corporate governance to fulfill the interests of shareholders (regional-owned enterprise owners) and stakeholders (the wider community), an integrated concept is needed.30 in article 3 paragraph (1) of the government regulation concerning regional state-owned enterprise, it is stated that the head of regions represents the regional government in the ownership of the separated regional assets in the company, has the position of a shareholder. regionalowned llc must comply with llc law. article 1 of llc law defines llc as a legal entity which is a capital partnership, established based on an agreement, conducting business activities with authorized capital which is entirely divided into shares and meets the requirements stipulated in llc law and its implementing regulations. the term „company‟ in llc refers to the method of determining capital in that legal entity which consists of shares while the term „limited‟ refers to the limit of liability of the shareholders, which is limited to the nominal value of all the shares owned. the limited liability of the shareholders at the nominal value of the shares owned is a translation implementation of the principle of limited liability of the shareholders. limited liability (limitatief aansprakelijheid) is a condition in which shareholders (aandelhouder) of a company are only responsible for the limited number of shares they have in the company. in article 20 of the government regulation no 54 of 2017, this principle states that regional-owned enterprise capital originating from regional capital participation is the limit of regional liability for regional-owned enterprise losses. regional-owned llc has conferred status as a legal entity.31 according to the indonesian civil code (burgerlijk wetboek /bw) defines legal entity (rechtspersoon) is a group of people who act as if they are a single private body or corporation in the course of law. as a legal entity, regional-owned llc is analogized as a human being who has rights and obligations, owns his property, and can take legal action. this reflects von savigny‟s fictional theory, conceiving that actions of legal entities are considered as human actions,32 which entails a responsibility for the consequences caused by the actions. 30yudho taruno muryanto & djuwiyastuti, “model pengelolaan badan usaha milik daerah (bumd) dalam rangka mewujudkan good corporate governance,” yustisia jurnal hukum 3, no. 1 (2014): 126. 31 law no. 40 of 2007 concerning limited liability companies, art. 7 (4) and government regulation no. 54 year 2017 concerning regional-owned enterprise, art. 4 (5) 32dian cahyaningrum, “implikasi bentuk hukum bumd terhadap pengelolaan bumd,” jurnal ilmiah hukum: negara hukum membangun hukum untuk keadilan dan kesejahteraan 9, no. 1 (2018): 65. establishing a regional-owned limited liability corporation: would it support an integrated tourism management in bali? luh ayu nadira saraswati and anak agung gede duwira hadi santosa 67 since llc is an artificial subject, it requires those who run the company to work in accordance with the aims and objectives of establishing the company.33 regional-owned llc is formed to manage regional potential in order to encourage the regional economy and generate profits (profitoriented). the profit resulted s a source of locally -generated revenue that is needed for development. considering that the orientation of the regionalowned llc is to gain profit, its directors are required to strive an effort to realize the expected profits. in case directors' policies and actions result in losses, they do not need to worry about being blamed as long as the directors carry out business actions and their management in good faith and full of responsibility and following the aims and objectives of the regional-owned llc as stated in its articles of association. this is the implementation of the fiduciary duties of the directors, namely tasks that are issued legally (by the operation of law) from a fiduciary relationship between the board of directors and the company they lead so that directors must have concern and ability (duty of care and skills), good faith, loyalty, and high degree honesty towards companies. the head of regions, who represents the region as the majority shareholder in the regional-owned llc, has the authority to appoint its organs, namely directors and commissioners. the board of directors is in charge of managing the regional-owned llc and representing it both inside and outside of the court in accordance with the articles of association. meanwhile, the commissioners have the duty to supervise and give advice to the directors in carrying out the management activities. the directors and commissioners must be professional persons who meet the qualifications as required in government regulation no. 54 of 2017.34 therefore the selection and appointment of directors and commissioners must be carried out in accordance with the provisions of laws and regulations. 2.2.3. regional-owned limited liability company can support the realization of an integrated tourism management in bali section 2.1.1 reveals that the obvious managerial problem of tourism in bali is the existence of a variety of tourism management, both at the provincial level and regencies/city level. this indeed requires a breakthrough. a solution offered in this paper is to utilize the regionalowned enterprise. as discussed in section 2.2.1, a regional-owned enterprise may be designed as a pioneer in the tourism business sector that is not yet attractive to the private sector and has become a driving force for the economy in the region. the preferable form of this enterprise is a regionalowned llcas discussed in 2.2.3. it is a legal entity that follows the path as 33muhammad gary gagarin akbar & deny guntara, “perubahan bentuk perusahaan daerah ke perseroan daerah: perusahaan daerah air minum karawang,” jurnal ilmiah hukum de’jure: kajian ilmiah hukum 3, no. 1 (2018): 72. 34 the requirements to become a member of the commissioner are regulated in article 38 government regulation no. 54 of 2017, while the requirements to become directors are regulated in article 58 government regulation no. 54 of 2017. udayana journal of law and culture vol. 5 no. 1, january 2021 68 stipulated in llc law but in terms of share, is owned, fully or majority, by regional governments. regional-owned llc can support the realization of an integrated tourism management that has been expected to be implemented in bali. establishing a regional-owned llc that subject to the company law, will strengthen the professionalism in terms of management, compare to the current multi managerial run by each region. besides, regional-owned llc will also accommodate the participation of the region through the shareholder forum in the company. as previously explained, a region can own all (100% /one hundred percent) of the shares of the regional-owned llc.35 besides, it is also possible for regions to own shares of at least 51% (fifty-one percent). this means that other parties can own the regionalowned llc shares, provided that at least 51% (fifty-one percent) of its shares are owned by one region. thus, regional-owned llc can be owned by: 1. one local government owns all of the shares. 2. more than one local government, where one local government owns at least 51% of the shares. 3. one regional government with other parties (non-regional government), in which the local government concerned owns shares of at least 51%. 4. more than one local government with other parties (non-regional government), where one local government has a share of at least 51%. 36 regional-owned llc in the tourism sector can be formed with a combination of 9 regency/city governments together with 1 provincial government in the form of a tourism sector period. 3. conclusion the rapid development of tourism in bali has made this sector the main economic pillar in bali. however, the advancement of the tourism industry in bali is not followed by equal distribution of tourism development in bali, this imbalance does not only cover tourism facilities but also includes tourism management. tourism development has also endangered the preservation of the natural environment. currently, each regency and city apply different tourist destination management, besides management performed at the provincial level. therefore, the idea of „one island, one management‟ is aimed to minimize the gap of tourism development between regencies and city through establishing an integrated tourism management. regional-owned llc can support the realization of an integrated tourism management in bali. a regional-owned llc is subject to the 35 see the exemption for the requirements to establish llc in article 7 (7) in law no. 40 of 2007 concerning limited liability companies. 36 ibid., 64 establishing a regional-owned limited liability corporation: would it support an integrated tourism management in bali? luh ayu nadira saraswati and anak agung gede duwira hadi santosa 69 company law. this legal status is expected to strengthen the professionalism of managerial aspects, compare to 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khusus bali dan pengaruhnya bagi keutuhan nkri”. http://www.bphn.go.id/data/documents/lit-2011-5.pdf. https://doi.org/10.1016/s2212-5671(12)00356-5 https://doi.org/10.18196/jesp.19.1.4111 https://doi.org/10.22437/ujh.1.2.295-322 https://doi.org/10.31771/jrtr.2019.50 https://doi.org/10.23917/laj.v4i1.8050 http://www.bphn.go.id/data/documents/lit-2011-5.pdf e-issn 2549-0680 vol. 5, no. 2, july 2021, pp. 185-200 doi: https://doi.org/10.24843/ujlc.2021.v05.i02.p06 this is an open access article, distributed under the terms of the creative commons attribution licence (http://creativecommons.org/licenses/by/4.0/), 185 whether sovereignty?: the failure of indonesia in taking over flight information region from singapore 2015-2019 nabyla humaira* faculty of law, syiah kuala university, aceh, indonesia adwani** faculty of law, syiah kuala university, aceh, indonesia m. yakub aiyub kadir*** faculty of law, syiah kuala university, aceh, indonesia abstract the concept of ‘complete and exclusive sovereignty as defined in international and national law remains poses challenges, especially concerning the effort of indonesia i n taking over the flight information region (fir) from the singapore context. the management of fir by singapore over the riau islands of indonesia was begun during the british colonial period over malay territory, which partly became a sovereign state of singapore in 1965. however, under the syndrome of post-colonialism indonesia has legalized it through the 1995 bilateral agreement between indonesia and singapore. on the other hand, since independence, indonesia has gradually initiated to take over the fir until the peak time of the 2015 presidential instruction which explicitly orders to take over the fir of singapore at the latest in the next four years (2015-2019). however, until the end of 2020, there had been no significant progress. this paper critically investigates such failure within the evolving concept of ‘sovereignty through the third world approach to international law (twail) paradigm in terms of the global justice system. it is proved that the meaning of ‘sovereignty in postcolonial states remains a political rhetoric as also known as ‘negative sovereignty’. hence, this paper contributes to clarifying the meaning of sovereignty in the indonesian context, so that a new awareness arises to increase the national capacity to take over fir from singapore, and hopefully, the ‘complete and exclusive’ meaning of sovereignty can be perceived in near future, for the maximum benefit of people in indonesia. keywords: sovereignty; indonesia; singapore; flight information region; global justice. 1. introduction international and national law are interacted1 and have an impact on the concept of sovereignty for postcolonial states.2 it is a matter of dignity that has been recognized by the charter of the united nations (un charter) * email: nabyla@mhs.unsyiah.ac.id ** email: adwani@unsyiah.ac.id *** email/corresponding author: m.yakub.akadir@unsyiah.ac.id 1 i wayan parthiana, perjanjian internasional di dalam hukum nasional indonesia (bandung: penerbit yrama widya 2019), 1-3. 2 ibid., 181. mailto:nabyla@mhs.unsyiah.ac.id mailto:adwani@unsyiah.ac.id mailto:m.yakub.akadir@unsyiah.ac.id udayana journal of law and culture vol. 5 no. 2, jul y 2021 186 and various international conventions. the concept leads many states to protect their territory, including land water, and air spaces.3 when indonesia gained independence in 1945, in a transitional period, the boundary is not so clear, and indonesia was not yet a party of the 1944 chicago convention, until up to 1950. 4 however, since 1946 the realignment of the boundary between the singapore flight information region and the jakarta flight information region, and the agreement between the government of the republic of indonesia and the government of the republic of singapore on military training in areas 1 and 2, which consists of 3 areas: riau, tanjung pinang, and natuna, was initiated. the region has been one of the busiest flight routes in the asia and pacific region.5 equally, the fir delegation was formed with the approval of member states of the international civil aviation organization (icao)6 as stated in article 2.1.1. annex 117 of the 1944 chicago convention, that: "... a state may delegate to another state the responsibility for establishing and providing air traffic services in-flight information regions, control areas, or control zones extending over the territories of the former." 8 based on the convention, britain was appointed as the country that manages the fir, which also covers above of the territorial waters around natuna as it were part of the high seas since 1982 united nations convention on the law of the sea (unclos) was not enacted. unfortunately, indonesia and singapore signed a new agreement on fir with various new provisions held in singapore on september 21, 1995. 9 this agreement considered to legalise the colonial-based arrangement of fir over indonesian space, instead of taking over it. since early on, it was deemed that indonesia has never benefited, even caused many disadvantages, in terms of national defense, economy, and 3 nabyla humaira, “tinjauan hukum terhadap flight information region asing di wilayah udara indonesia (suatu kajian terhadap flight information region singapura) ” (bachelor’s thesis, syiah kuala university, 2018), 7. 4 h.k. martono and amad sudiro, hukum udara nasional dan internasional publik (public international and national law), second edition, (jakarta: raja grafindo 2016), 254. 5 ibid., 9 and 56. 6 international civil aviation organization (icao) functions for regulating and developing basic principles of international aviation navigation techniques to increase the growth of international air transportation which ensures safety, and for the growth of international civil aviation throughout the world. indonesia has become a member of icao on 27 may 1950 after submitting to the chicago convention 1944 and has ratified the protocol on the authentic six-language text of the convention on international civil aviation chicago 1944 with presi dential regulation no. 6 of 2005. 7annex 11 to the convention on internatonal civil aviation, fifteenth edition, july 2018, 33. through international civil aviation organization (icao) 8 chicago convention 1944 is an international convention or agreement that regulates international civil aviation. in full, this convention is entitled convention on international civil aviation (1944). this convention is used as a source of law in every international flight activity of countries, and is included in an international agreement which is a law making treaty. 9 this agreement was ratified through presidential decree no. 7 of 1996 dated 2 february 1996 concerning "ratification of the agreement between government of the republic of singapore on the realignment of the boundary between the singapore flight information region and the jakarta flight information region". ibid., 55 whether sovereignty? the failure of indonesia in taking o ver flight information region (fir) from singapore 2015-2019 nabyla humaira, adwani, m.yakub aiyub kadir 187 politics. based on a study in 2018, indonesia has never known the income from the management of the fir, and suspiciously found illegal actions such as intelligence activities, aerial photography, and train its aviators in the fir area. if there would be an open conflict it can be used as an air operations strategy which singapore can take advantage of the superior technology of airpower in the form of speed and suddenness.10 even more, if the indonesian government intends to carry out state activities such as rescue operations and military training in fir areas, the indonesian directorate general of civil aviation has to notify the singapore civil aviation agency. law no. 1 of 2009 concerning aviation (hereinafter referred to as the aviation law 2009) states that: "the unitary state of the republic of indonesia has full and exclusive sovereignty over the territory of the republic of indonesia."11 it is in line with the 1944 chicago convention highlighted that: "the contracting states recognize that every state has complete and exclusive sovereignty over the airspace above its territory."12 additionally, law no. 3 of 2002 concerning state defence explains that ‘state defense aims to safeguard and protect the sovereignty of the state, the territorial integrity of the unitary state of the republic of indonesia, and the salvation of the nation from all forms of threats’.13 these provisions have caused many obstacles both from indonesian civil aviation as well as the implementation of operations and law enforcement in the areas around tanjung pinang and natuna which are carried out under the air traffic control singapore (atc singapore). the 1995 agreement does not regulate the termination aspect, instead of a review at the end of five years and can be extended by mutual agreement of both parties if it is useful to do so.14 however, since independence , indonesia has gradually initiated to take over the fir until the peak time of the 2015 presidenti al instruction which explicitly ordering to takeover the fir of singapore in the next four years (20152019) at the latest. however, until the end of 2020, there had been no significant progress. the prospect of reassignment has faced strong resistance from singapore, in favour of its national interests in security and income through air navigation charges.15 1.1. research problem 10 ibid., 57-58. 11 law no. 1 of 2009 concerning aviation, art. 5. 12 convention on international civil aviation (1944), art.1. 13 law no. 3 of 2002 concerning state defence, art. 1(1). 14 humaira, op.cit., 58-60. 15 ridha aditya nugraha, flight information region above riau and natuna islands, the indonesian efforts to regain control from singapore, german journal of air and space law 67, no.2 (2018): 236. udayana journal of law and culture vol. 5 no. 2, jul y 2021 188 indonesia has made a lot of efforts in taking over the management of fir, so it would be essential to question: (1) whether the failure of indonesia in taking over fir has adversely impacted sovereignty issues, instead of technical one ?, and (2) how far sovereignty concept be understood in singapore-indonesia fir context? 1.2. method this research uses a juridical-normative methodology which conducted by examining legal norms in international conventions and national legislations. 16 in particular, a critical legal research under the auspice of the third world approach to international law (twail) paradigm, to look at the western colonial arrangement and its impact on global injustice in postcolonial states has been utilised. this methodology is considered appropriate to examines the concept of sovereignty and its application over the colonial-based agreement of the indonesia and singaporean government on fir. 17 additional sources have also been reached through online interviews with several legal experts from various institutions, such as the indonesian centre for air and space law studies (casl), and the like. 1.3. theoretical framework sovereignty can be interpreted as the supreme power which is absolute, complete, unanimous, and cannot be divided, and therefore cannot be placed under other powers. however, in the process of further development, there has been a different evolving meaning of sovereignty.18 the 1919 convention relating to the regulation of aerial navigation, stated that: “the high contracting parties recognise that every power has complete and exclusive sovereignty over the air space above its territory. for the purpose of the present convention, the territory of a state shall be understood as including the national territory, both that of the mother country and of the colonies, and the territorial waters adjacent thereto.”19 the article is in line with the expert opinions, such as h.k. martono that clearly explained that a sovereign is the highest power (supreme authority) which is free from the power of other countries, free in the broadest sense both inside and outside aspects, but it must still pay 16 soerjono soekanto and sri mamudji, penelitian hukum normatif, (jakarta: pt raja grafindo persada, 2012), 12. 17 obiora chinedu okafor, “critical third world approaches to international law (twail): theory, methodology, or both?,” international community law review 10, no.4 (2008): 371-378. see also mike mcconville and wing hong chui, research method for law, (edinburg: edinburg university press, 2007), 183-186. 18 suryo sakti hadiwijoyo, pembatasan negara dalam dimensi hukum internasional (yogyakarta: graha ilmu, 2011), 8. 19 convention relating to the regulation of aerial (1919), art. 1 navigation, whether sovereignty? the failure of indonesia in taking o ver flight information region (fir) from singapore 2015-2019 nabyla humaira, adwani, m.yakub aiyub kadir 189 attention to international law and social courtesy.20 as a sovereign state, it can determine the form of the state, the form of government, the organization of internal and external power, regulating relations with its citizens, the use of the public domain, making basic laws and implementing regulations, establishing international relations with other countries, protecting citizens abroad and within the country, including foreign nationals in their territory, also regulating land, sea and air areas for defense and security, aviation safety and social activities. eddy purnama explained that ‘state sovereignty is the full power of the state to regulate all the interests of the country to realize the welfare of its people without interference from other countries.21 the 1944 chicago convention was born based on the economic potential possessed by countries as well as being a reference in international treaties on airspace . article 1 states: "the contracting s tates recognize that every s tate has complete and exclusive sovereignty over the airspace above its territory." this article regulates the sovereignty possessed by participating countries and recognizes the sovereignty of all countries in the airspace above their territory (airspace). according to e. saefullah wiradipradja, the universal nature of the article can be seen from the use of the term "every state" to refer to the sovereignty of the parties in air space, which shows that state sovereignty in air space is owned by all countries. not only countries participating in the convention, but also countries outside the convention.22 the concept of state sovereignty in this airspace is a development from the concept of roman law which reads "cujus est solum, ejus esque ad coelum" which means "whoever owns a piece of land thus also owns ever ything on it up to the sky and everything in it ground.”23 article 25 of the 1945 constitution of the republic of indonesia (indonesian constitution), defines state as "the unitary state of the republic of indonesia is an archipelago country, characterized by an archipelago".24 according to mochtar kusumaatmadja, the archipelago concept is characterized as the concept of unilateral control of territory by the indonesian people in breaking the prevailing international maritime law doctrine.25 the regulation of sovereignty in national law is important to be reviewed to understand how national law regulates this matter, especially the indonesian constitution and laws and operational regulations under it, especially law no. 43 of 2009 concerning state territory and the aviation law. 20 martono and sudiro, op.cit., 64 21 eddy purnama, “the meaning of indonesia sovereignty according to the contitutional law experts.” online interview by nabyla humaira, via whatsapp, march 17, 2021. 22 e. saefullah wiradipradja, pengantar hukum udara dan ruang angkasa buku i, (bandung: pt. alumni, 2014), 108. 23 e. saefullah wiradipradja. "wilayah udara negara (state air territory) ditinjau dari segi hukum internasional dan nasional indonesia," indonesian journal of international law 6, no.4 (2009): 499. 24 the 1945 constitution of the republic of indonesia, art. 25. 25 mochtar kusumaatmadja, konsepsi hukum negara nusantara pada konferensi hukum laut 1982 (bandung: pt. alumni), 43. udayana journal of law and culture vol. 5 no. 2, jul y 2021 190 the 2009 aviation law states that: "the unitary state of the republic of indonesia has complete and exclusive sovereignty over the territory of the republic of indonesia." the aforementioned provisions clearly state that indonesia is completely and exclusively sovereign to regulate its airspace. article 1 paragraph (1) of law no. 3 of 2002 concerning state defence explains that state defense aims to safeguard and protect the sovereignty of the country, the territorial integrity of the unitary state of the republic of indonesia, and the safety of the nation from all forms of threats.26 referring to the above provisions various issues of sovereignty arise since the indonesia and singapore fir bilateral agreement, in terms of security and de fense, economy, and politics. 2. result and analysis 2.1. sovereignty and colonial-based agreement the state as the firm international legal subject has been emerged with its sovereignty, that a state can establish and carry out legal relations with fellow countries in all fields of international relations, one of which is to make and/or become a participant in an international agreement.27 indonesia has participated in international and regional efforts to maintain security and peace in various sectors. particularly in the management of airspace over the riau islands, when indonesia signed a bilateral agreement with the republic of singapore which was ratified by presidential decree no. 7 of 1996 and the agreement on military training in areas 1 and 2 which was ratified by presidential decree no. 8 of 1996. this agreement was originally established with the approval of icao member countries in 1946 based on article 2.1.1. annex 11 of the 1944 chicago convention.28 under colonial context, britain was appointed as the country that manages the fir where at that time singapore was still under a british commonwealth territory. equally, in 1946 the territorial waters around natuna were part of the high seas and were not included yet in the territory of indonesia. therefore, indonesia was not seen as having an interest in the area, and when indonesia gained independence in 1945, indonesia was still in a transitional period and its boundaries with neighboring countries were not clear. even more, indonesia was not yet a part of the 1944 chicago convention, until 1950.29 in 1965 singapore was officially independent, but the fir agreement between the republic of indonesia and singapore regarding the management of airspace was continuing. essentially, it should be 26 law no. 3 of 2002 concerning state defence, art 1 (1). 27 parthiana, op.cit., 114 28 m. y. aiyub kadir, “application of the law of self-determination in a postcolonial context: a guideline,” journal of east asia and international law 9, no.1 (2016): 7. also m.y. aiyub kadir, “revisiting self-determination conflicts in indonesia: an international law perspective ,” indonesia law review 5, no.2 (2015): 123. 29 martono and sudiro, op.cit., 254. see also humaira, op.cit., 6-7. whether sovereignty? the failure of indonesia in taking o ver flight information region (fir) from singapore 2015-2019 nabyla humaira, adwani, m.yakub aiyub kadir 191 automatically ended under the succession principle of colonial regimes. particularly indonesia has taken over its sovereignty from the netherland, so the netherlands has a responsibility to return the fir from britain to newly independent states (indonesia). such a situation should be taken into account by the indonesian government to reconside r the meaning of sovereignty in the taking over process of the fir from singapore . in july 1992 indonesia has intensified its efforts to take over the fir. indonesia officially conveyed this at the regional air navigation (ran) meeting in bangkok in may 1993, but at the ran-meeting it was decided that this issue would be resolved bilaterally between indonesia and singapore, the results of which must be reported to icao. continuing the decision of the icao board, indonesia and singapore sent delegates reciprocally to discuss the fir takeover. singapore was still questioned the legal basis which determined the location of the outer starting point of indonesia and did not agree with law no. 17 of 1985 which was ratified by indonesia. at that time it was clear that unclos had been enacted and was in effect in the territory of indonesia. the failure of indonesia at that time was because it had not yet established a starting legal point and singapore brought a map of indonesia based on government regulation in lieu of law no.4 of 1960 concerning indonesian waters which was just published at the united nations in 1986. this was very different from the sovereign territory based on unclos 1982. nevertheless, indonesia was not been able to provide a good argument so that the takeover attempt is still unsuccessful.30 since the transfer of sovereignty by the kingdom of the netherlands in 1949 through the round table conference and various developments in its sovereignty, so related to international relations, both multilateral and bilateral agreements must be reviewed with the countries concerned so that their enforcement in accordance with the sovereignty of the postcolonial states. in particular, the bilateral agreement that was promised by indonesia and singapore regarding the management of airspace over the riau islands was no longer benefits indonesia and at the same time directly or indirectly, this bilateral agreement has disturbed the sovereignty of the republic of indonesia, as it was colonial based agreement. 31 violation of airspace sovereignty can be seen from several aspects, one of them is from the economic sector where indonesia has never received the annual income report from fir management by singapore. meanwhile, the management of airspace will be a threat in which singapore will very easily carry out illegal activities such as intelligence, aerial photography, and even utilizing the airspace as a singapore military training ground. while indonesia has to report every flight that carries the president or other important officials which are secret flights. on the other hand, singapore has never reported anything to the indonesian authority. indonesia must request permission every time it will 30 ibid., 271-272 31 see kadir, revisiting… op.cit., 23. udayana journal of law and culture vol. 5 no. 2, jul y 2021 192 carry out law enforcement operations by the national air defense command or the indonesian navy in this territory. these operations are often prohi bited on the grounds of disturbing the security of singapore's territory. 32 based on these various issues, the fir bilateral agreement between indonesia and singapore does not deserve to be continued and is against the meaning of the sovereignty of indonesia. 2.2. flight information region and negative sovereignty complete and exclusive sovereignty of the state in space is different from the territorial sea. due to its nature, the right of innocent passage is not known in the air for foreign parties, while in the territorial sea it is limited by the rights of other countries to exercise the right of innocent passage.33 the airspace of a country is completely closed to foreign aircraft, both civilian and military. only with prior permission from the underworld, either through bilateral or multilateral agreements, a country's airspace can be traversed by foreign aircraft. the state then regulates in its national law how to strengthen state sovereignty over the air space as a natural resource that can be utilized for national defense and the prosperity of the people.34 singapore's fir, which has been managing the airspace over indonesia's riau islands, has contributed a lot of harm to indonesia, especially in terms of national defense and security. for example, in the case of civil aviation, indonesia must ask for permission every time it passes through the riau islands region. another example is singapore prohibiting the indonesian air force to have military training in the area on the grounds of threatening the security of singapore's territory. 35 the prohibition and various violations cannot be accepte d by indonesia because the agreement only provides the managerial rights to singapore, not a flight restriction zone or even the handover of indonesian territory. indonesia should ha ve the right to conduct civilian flights or even military training over the area and only need to report for the safety flight in accordance with applicable rules without violating various privacy and safety. in reality, indonesia has suffered a lot of disadvantages so that since july 1992 indonesia has intensified its efforts to take over this fir, which was officially conveyed at the regional air navigation (ran) meeting in bangkok in may 1993. however, the meeting decided that this issue would be resolved bilaterally between indonesia and singapore, and the results of which must be reported to the civil aviation organization in bangkok. 36 32 humaira, op.cit., 7-8, 55. 33 e. saefullah wiradipradja, pengantar hukum udara… , op.cit, 98. 34 e. saefullah wiradipradja, "the indonesian sovereignty over air space and its urgency for national economic development." paper presented in 50 years of international conference on air and space law studies, padjadjaran university, bandung, 5-6 november (2014) 35 humaira, op.cit., 56 36 martono dan sudiro. op. cit., 270. whether sovereignty? the failure of indonesia in taking o ver flight information region (fir) from singapore 2015-2019 nabyla humaira, adwani, m.yakub aiyub kadir 193 since then, indonesia has prepared all tools needed to serve firs on natuna island to ensure the safety of national and international flights.37 this takeover effort is also mandated in the aviation law 2009 which states that within 15 years from the enactment of the regulation, all airspace managed by foreigners must have been returned to indonesia. the mandate of the law was strengthened again through a presidential instruction in september 2015. minister of transportation ignatius jonan in a press conference at the presidential office acknowledged this instruction that within 3-4 years to prepare better equipment and personnel so that the fir singapore will soon be taken over and managed by indonesia by 2019 at the latest.38 in fact, however, until december 2020 there had been no significant progress perceived. airspace services over the republic of indonesia air that has been delegated by indonesia to singapore based on bilateral agreements, particularly the fir over natuna island, within 15 years from the aviation law 2009 was enacted. based on the review of time frame to determine the fir which is every 10 years at the representative offices of the international civil aviation organization in bangkok by asia-pacific countries. so it should have been done in 2013, but those efforts have no results. this case has provided a new perspective on the theory of “delegation of authority” as stipulated within the chicago convention, which has evolved into the effective “delegation of sovereignty” when fundamental national interests are involved. the civil aviation world is really dynamic considering its dependency on various rapidly evolving aspects, from technological innovation to world political changes. there has been a lack of transparency since the indonesian directorate general of civil aviation has no full access to the civil aviation authority of singapore’s data. 39 however, the commercial calculations seem to still be unfavourable for indonesia. it is reported that in 2015 each flight on a sector a route is charged six u.s. dollars, while only 50 cents or around 8% is allocated to indonesia40 additional problems also arise since indonesian aircraft are often warned not to fl y some areas which are announced as being used for singaporean air force training. 41 37 ibid., 271. 38 mega putra ratya, “instruksi jokowi: segera ambil alih ruang udara ri yang dikuasai singapura,” detik.com, 8 september 2015, https://news.detik.com/berita/d3013345/instruksi -jokowi-segera-ambil-alih-ruang-udara-ri-yang-dikuasai-singapura 39 evi zuraida, “tinjauan yuridis upaya pengambilalihan pelayanan navigasi penerbangan pada flight information region (fir) singapura di atas wilayah udara indonesia berdasarkan perjanjian antara indonesia singapura tahun 1995” (master thesis, faculty of law, universitas indonesia, 2012), 115. 40anggi kusumadewi et.al. “luhut: singapura-malaysia dukung ri kendalikan ruang udara”, cnn indonesia, 5 october 2015, http://www.cnnindonesia.com/nasional/20151004171137-20-82698/luhutsingapura-malay-sia-dukung-ri-kendalikan-ruang-udara/ and anggi kusumadewi and abraham utama, “perang udara indonesia-singapura,” cnn indonesia, 5 october 2015, http://www.cnnindonesia.com/nasional/20151004164 716-20-82695/perangudara-indonesia-singapura/ 41 chappy hakim, "pertahanan indonesia angkatan perang kepulauan." jakarta: red and white publishing, 2011, 112-113. https://news.detik.com/berita/d-3013345/instruksi-jokowi-segera-ambil-alih-ruang-udara-ri-yang-dikuasai-singapura https://news.detik.com/berita/d-3013345/instruksi-jokowi-segera-ambil-alih-ruang-udara-ri-yang-dikuasai-singapura http://www.cnnindonesia.com/nasional/20151004171137-20-82698/luhut-singapura-malay-sia-dukung-ri-kendalikan-ruang-udara/ http://www.cnnindonesia.com/nasional/20151004171137-20-82698/luhut-singapura-malay-sia-dukung-ri-kendalikan-ruang-udara/ http://www.cnnindonesia.com/nasional/20151004164%20716-20-82695/perang-udara-indonesia-singapura/ http://www.cnnindonesia.com/nasional/20151004164%20716-20-82695/perang-udara-indonesia-singapura/ udayana journal of law and culture vol. 5 no. 2, jul y 2021 194 the indonesian air force feels threatened by the cur rent situation they cannot conduct their missions freely within their own airspace, especially objectionable as they are performing state (military) and not civil and commercial flights.42 such inability of indonesia to date to take over its fir from singapore, considered to be called ‘negative sovereignty’ as mostly the issue of postcolonial states.43 the complete sovereignty of the republic of indonesia seems capable of conducting bilateral and even multilateral agreements, at the same time, indonesia has not been able to cancel agreements that are detrimental from various points of view. the study of the airspace over the riau islands which is managed by singapore is very interesting when viewed from negative sovereignty and positive sovereignty perspective. positive state sovereignty has a dark side to the countries with negative sovereignty. positive sovereignty in a country can result in the country becoming a colonizer or an exploiter.44 if this continues, the countries with negative sovereignty are in danger of being eroded and violated.45 it can be concluded that state sovereignty is just a word that has various meanings by referring to the conceptual scheme used by a state. so, it can be said that the country with sovereignty was able to power into or out of the area so that it is rightly powerful and empirically sovereign. the ratification of certain international treaties essentially mus t be ratified by legislation so that the hierarchy and validity of these international treaties are the same as other national laws, but if an international treaty is ratified by a presidential decree or a presidential regulation, so it is under other indonesian national laws. thus, international treaties which are under national law, and their enforcement must prioritize national regulations. this is in line with the existence of a bilateral agreement between indonesia and singapore regarding the management of airspace which is ratified by a presidential decree, while the national regulations covering national defense and security as well as state sovereignty are in the form of laws, so the enforcement of national laws should take precedence over on the validity of the bilateral agreement between indonesia and singapore. complete and exclusive national sovereignty will remain a term in the rule of law when the ruler of a country is capable and fully empowered in making a decision related to the security and defense of his country so that the ruler or government of a country can be said to be competent in making 42 the indonesia-singapore agreement of 1995, art. 10. 43 robert jackson, quasi-states: sovereignty, international relations, and the third world, cambridge: cambridge university press 1990. ed. surya p. subedi, book review: quasi-states: sovereignty, international relations, and the third world asian yearbook of international law. 44 zezen mutaqin, “negative sovereignty and positive sovereignty (why the great powers invade outlaw states)”, canterbury amicus curiae law journal university of california 1, no. 4 (2017): 59. 45 martti koskenniemi, “what use for sovereignty today?,” asian journal of internasional law 1, no.1 (2011): 69. whether sovereignty? the failure of indonesia in taking o ver flight information region (fir) from singapore 2015-2019 nabyla humaira, adwani, m.yakub aiyub kadir 195 a good decision, nationally and internationally. this is in line with polidano's writings in his journal,46 which stated that: "the idea of state capacity is a useful way of conceptualizing and measuring the ability of governments to implement policy. without which such a capacity the idea of sovereignty becomes rather meaningless. state capacity here is understood as 'its freedom to make decisions, its ability to make informed decisions, and its ability to have those decisions implemented." thus, the sovereign is depende nt on a great influence on how the policy issued by the government and how its application in the governance will affect the authority of a country in the international relation. so in this case the internal factors of a country will be very influential for the creation of complete and exclusive sovereignty. jackson argues that sovereignty juridically refers to the recognition of other sovereign states while empirically, sovereignty refers to the ability of a state to control and manage its territory.47 based on robert's opinion and looking at the reality that indonesia is currently experiencing, it is seen that this country was only juridically sovereign, but empirically more related to the management of airspace over the riau islands, indonesia cannot be said to be empirically sovereign. besides, the presidential instruction in 2015 strengthens the implementation of the mandate in law no. 1 of 2009 on aviation. article 458 describes the takeover of fir management no later than 15 years from the enactment of the law. in 2019 the mandate should be realized, but in fact, until december 2020 the takeover is still rhetoric, it is in this sense sovereignty need to be questioned. 2.3. primate monism of national law according to the doctrine of monism under the primate of national law, international law is sourced from national law. state practice as a basis for the development of customary international law signified the concept that so national law has a higher position than international law, if there is a conflict between them, national law takes precedence. 48 this understanding sees that the unity of national law and international law is essentially international law was derived from national law. the reasons put forward are as follows:49 46 charles polidano, ‘measuring public sector capacity’, world development, 28 (5): 805-822, (2000): 809. 47 jackson, loc.cit. 48 sefriani, hukum internasional: suatu pengantar (jakarta: raja grafindo persada 2011), 86. see also hasim, hasanuddin. "hubungan hukum internasional dan hukum nasional, perspektif teori monosime dan teori dualisme." jurnal perbandingan mahzab 1 (2019): 166-179. https://doi.org/10.24252/mh.v1i2.10623 49 ibid., 86-87. https://doi.org/10.24252/mh.v1i2.10623 udayana journal of law and culture vol. 5 no. 2, jul y 2021 196 1. the absence of an organization above the states that regulate the life of those countries; 2. the basis of international law to regulate relations between countries lies in the authority of the state to enter into international agreements that derive from the authority granted by the constitution of each country. thus, the bilateral agreement agreed by indonesia and singapore regarding the management of airspace over the riau islands must prioritize the national legal rules of the republic of indonesia, especially relating to sovereignty which will later affect the security and defense of the republic of indonesia. the practice is implemented through article 10 of law no. 24 of 2000 concerning international treaties that requests ratification of an international treaty that covers inter alia changes in the territory or the determination of the territorial borders of the republic of indonesia as well as sovereignty and sovereign rights issues, through a national law that jointly agreed by the house of representatives and the president. however, the arrangements regarding the ratification of international treaties were previously regulated in presidential letter no. 2826/hk/1960 but then because in practice there were many irregularities, law no. 24 of 2000 concerning international treaties (hereinafter referred to as uupi) was established. the transitional rule of the uupi also says nothing about the validity of previous agreements. it only mentions the ratification of international agreements which are still in the process of being finalized by these provisions. 50 hence, the absence of provisions that confirm the validity of the agreements that were made before, has made the bilateral agreement is questionable.51 relating to the existence of the uupi which states that agreements on sovereignty rights must be ratified by enactment, however, it does not apply retroactively, considering what has been done previously as legal action on behalf of the state and it is valid as long as no repeal. however, it is different from the bilateral agreement that has harmed one of the parties, so if the review of the bilateral agreement does not provide a favorable solution, withdrawal or even revocation is the most reasonable solution carried out by the government of the republic of indonesia, the agreement should be questioned. with regards to internal law regarding competence to conclude treaties, the vienna convention on the law of treaties 1969 (vclt) states: “provisions of internal law regarding competence to conclude treaties:… a state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of 50 law no. 24 of 2000 concerning international treaties, art. 21. 51 maulida hadry sa’adillah, the author was interviewed her about the validity of bilateral agreements according to international law, online interview via instagram, at 07.39 wib and 19.39 in new york, 2021. whether sovereignty? the failure of indonesia in taking o ver flight information region (fir) from singapore 2015-2019 nabyla humaira, adwani, m.yakub aiyub kadir 197 its internal law of fundamental importance. (2) a violation is manifest if it would be objectively evident to any state conducting itself in the matter following normal practice and good faith."52 the provisions above can be understood that the party who promised something through an international agreement, in this case, is a bilateral agreement between indonesia and singapore about the management of airspace over the riau islands, which is the sovereign territory of the republic of indonesia, has been questioned due to violating of national law.53 vclt also affirms the termination and withdrawal of international treaties that the parties have the right to withdraw from an international treaty on terms agreed by the parties.54 it stipulates that each country has complete and exclusive sovereignty over the territory of its country whether on land, sea, or air. each country has the right to regulate every matter related to the interests of its territory. indonesian national law through various applicable laws and regulations reinforces the sovereignty of a country that is complete and exclusive. thus, the bilateral agreement that was agreed between indonesia and singapore, which has now tarnished the meaning of complete and exclusive sovereignty for indonesia, has to take over as soon as possible. 3. conclusion the meaning of complete and exclusive sovereignty as associated with an independent post-colonial state has been contested as there have been different understandings arise in indonesia’s delegated power to control fir to singapore, whether it is merely a technical or sovereignty. the control was initiated in the colonial era when the british occupied the malay territory, which then partly become a new independent state of singapore in 1965. hence the historical context of fir should be taken into account as the meaning of sovereignty has to invalidate the colonial -based related agreements. it is found that despite it is a technical issue of controlling certain spaces over the territory of indonesia, signaled to erosion of sovereignty when indonesia remains unable to take over it up to the end of 2020. the very strong order of president jokowi through his 2015 instruction has not been effectively proven. despite indonesia has initiated various political efforts but has been considered failed. indonesia has complete and exclusive sovereignty when it legalised the previous colonial-based agreement that indonesia and singapore agreed to delegate singapore on the management of airspace over the riau islands. however, in practice , it has proved that indonesia has faced many disadvantages in terms of economic loss and defense and security. 52 vienna convention on the law of treaties 1969, art. (1). 53 damos dumoli agusman, hukum perjanjian internasional (kajian teori dan prkatik indonesia), second edition, pt refika aditama, bandung, 2014, p. 96 also see sri se tianingsih and ida kurnia, hukum perjanjian intenasional (jakarta: sinar grafika, jakarta 2019), 91. 54 vienna convention on the law of treaties, art. 54. udayana journal of law and culture vol. 5 no. 2, jul y 2021 198 ironically, indonesia has not been able to take over the fir from singapore, even under the 2015 presidential instruction from 2015 to 2019. it is proven that the meaning of sovereignty which is ‘complete and exclusive’ becomes rhetoric only when indonesia can make an agreement but when the agreement causes losses or even threatens indonesia’s economy and security, indonesia has not been able to cancel it. such a situation should be taken into account by the indonesian government to reconsider the meaning of sovereignty and its capacity to take over fir from singapore. bibliography book dumoli agusman, damos. hukum perjanjian internasional (kajian teori d an praktik indonesia). second edition. bandung: pt refika aditama, 2014. hakim, chappy. 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"wilayah udara negara (state air territory) ditinjau dari segi hukum internasional dan nasional indonesia." indonesian journal of international law 6, no.4 (2009): 495-503. http://dx.doi.org/10.17304/ijil.vol6.4.211 thesis humaira, nabyla. “tinjauan hukum terhadap flight information region asing di wilayah udara indonesia (suatu kajian terhadap flight information region singapura).” bachelor’s thesis, university of syiah kuala, 2018. zuraida, evi. “tinjauan yuridis upaya pengambilalihan pelayanan navigasi penerbangan pada flight information region (fir) singapura di atas wilayah udara indonesia berdasarkan perjanjian antara indonesia singapura tahun 1995.” master thesis, faculty of law universitas indonesia, 2012. legal documents indonesia. the 1945 constitution of the republic of indonesia. the law no. 1 of 2009 concerning aviation. the law no. 43 of 2008 concerning state territory. the law no. 3 of 2002 concerning state defense. the law no. 24 of 2000 concerning international treaties. government regulation in lieu of law no.4 of 1960 concerning indonesian waters. convention on international civil aviation, 1944. vienna convention on the law of treaties, 1969. convention relating to the regulation of aerial navigation, 1969. https://doi.org/10.1163/187197308x366614 https://doi.org/10.1016/s0305-750x(99)00158-8 http://dx.doi.org/10.17304/ijil.vol6.4.211 udayana journal of law and culture vol. 5 no. 2, jul y 2021 200 agreement between government of the republic of singapore on the realignment of the boundary between the singapore flight information region and the jakarta flight information region, 1955. agreement between the government of the republic of indonesia and the government of the republic of singapore on military training in areas 1 and 2, 1966. interviews sa’adillah, maulida hadry. “the validity of bilateral agreements according to international law.” interview by nabyla humaira via instagram, february 22, 2021 at 07.39 am western indonesia time (19.39 pm) in new york. purnama, eddy. “the meaning of indonesia sovereignty according to the contitutional law experts.” interview by na byla humaira via whatsapp, march 17, 2021. website content anggi kusumadewi and abraham utama, “perang udara indonesiasingapura,” cnn indonesia, 5 october 2015, http://www.cnnindonesia.com/nasional/20151004164 716-2082695/perang-udara-indonesia-singapura/ anggi kusumadewi et.al. “luhut: singapura-malaysia dukung ri kendalikan ruang udara”, cnn indonesia, 5 october 2015, http://www.cnnindonesia.com/nasional/20151004171137-2082698/luhut-singapura-malay-sia-dukung-ri-kendalikan-ruangudara/ international civil aviation organization (icao), https://www.unitingaviation.com/publications/annex-11/#page=33 international civil aviation organization (icao), https://www.icao.int/abouticao/defaultpage international civil aviation organization (icao), https://www.icao.int/publications/pages/doc7300aspx ratya, mega putra, “instruksi jokowi: segera ambil alih ruang udara ri yang dikuasai singapura,” detik.com, 8 september 2015, https://news.detik.com/berita/d-3013345/instruksi-jokowi-segeraambil-alih-ruang-udara-ri-yang-dikuasai-singapura http://www.cnnindonesia.com/nasional/20151004164%20716-20-82695/perang-udara-indonesia-singapura/ http://www.cnnindonesia.com/nasional/20151004164%20716-20-82695/perang-udara-indonesia-singapura/ http://www.cnnindonesia.com/nasional/20151004171137-20-82698/luhut-singapura-malay-sia-dukung-ri-kendalikan-ruang-udara/ http://www.cnnindonesia.com/nasional/20151004171137-20-82698/luhut-singapura-malay-sia-dukung-ri-kendalikan-ruang-udara/ http://www.cnnindonesia.com/nasional/20151004171137-20-82698/luhut-singapura-malay-sia-dukung-ri-kendalikan-ruang-udara/ https://www.unitingaviation.com/publications/annex-11/#page=33 https://www.icao.int/abouticao/defaultpage https://www.icao.int/publications/pages/doc7300aspx https://news.detik.com/berita/d-3013345/instruksi-jokowi-segera-ambil-alih-ruang-udara-ri-yang-dikuasai-singapura https://news.detik.com/berita/d-3013345/instruksi-jokowi-segera-ambil-alih-ruang-udara-ri-yang-dikuasai-singapura vol. 4, no. 2, july 2020, pp. 229-245 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3600 e-issn 2549-0680 229 religious tolerance in multicultural communities: towards a comprehensive approach in handling social conflict ahmad suradi* islamic education department, tarbiyah and tadris faculty of iain bengkulu-indonesia john kenedi** islamic law department, law faculty of iain bengkulu-indonesia buyung surahman*** education curriculum department, tarbiyah and tadris faculty of iain bengkulu-indonesia article received: 12th march 2019; accepted: 28th july 2020; published: 30st july 2020 abstract this article is aimed to analyze the need for handling social conflict through the planting of tolerance values in multicultural societies that in line with statutory provisions. it is a socioreligious study that, to some extent, applies a legal approach. a library study was conducted by collecting data and information from textbooks, scientific journals, website contents. the legal analysis was based on principles and norms contained in legislation and regulations. it applies miles and huberman's interactive analysis model which includes data reduction, data presentation, and conclusion. the study suggested that planting tolerance values is a grand and noble concept that would become an organic part of indonesia. tolerance is functioned as a guardian, safeguard, peace-maker, and unifier communication and interaction to realize good relations between community members. besides, the law on handling of social conflict has covered the mechanism to address this matter by means of conflict prevention, cessation of conflicts, and post-conflict recovery. keywords: social conflict; religious tolerance; multicultural society; legal approach. how to cite (chicago 16th): suradi, ahmad, john kenedi, buyung surahman. “tolerance in multicultural communities: towards a comprehensive approach in handling social conflict.” udayana journal of law and culture 4, no. 2 (2020): 229–245. https://doi.org/10.24843/ujlc.2020.v04.i02.p06 doi: https://doi.org/10.24843/ujlc.2020.v04.i02.p06 * email/corresponding author: suradi@iainbengkulu.ac.id ** email: johnkenedi@iainbengkulu.ac.id *** email: buyungsurahman@iainbengkulu.ac.id https://doi.org/10.24843/ujlc.2020.v04.i02.p06 mailto:suradi@iainbengkulu.ac.id mailto:johnkenedi@iainbengkulu.ac.id mailto:buyungsurahman@iainbengkulu.ac.id tolerance in multicultural communities: towards a comprehensive approach in handling social conflict ahmad suradi, john kenedi, and buyung surahman 230 1. introduction in the reality of social life, conflict often negatively connoted. apart from these emerging assumptions only as hypotheses in analyzing social phenomena, but still the existence of conflict is as a heartbreaking entity for individuals who analyze it from the linearity of viewpoints. inevitably, the perceptions that emerged from experts, especially sociologists, also described this probability of existence. social conflict potentially occurs in a multi-religious society, especially in a multicultural society,1 like indonesia. one of the factors that cause this to happen is the occurrence of human error in understanding religious texts. some religious texts are interpreted "haphazardly" without considering the aspects of history, psychology, social, culture, and situational condition of the surrounding circumstances. 2 this hence potentially leads to an intolerance related to differences in race, culture, and religion. this then makes all parts of the society, especially social scientists, to work extra hard to find and propose a solution. one solution that is currently being discussed is the planting of values of tolerance and multicultural education. 3 the discourse and dialogue movement among religious believers has made significant progress. this was initiated from the awareness that all religious people basically pursuing peace, compassion, and love as well as live happily with the people they love. to maintain integrity and unity in society, mutual respect and the balanced implementation of rights and obligations among the members of the society are required to prevent the root of intolerance would be transformed into a conflict. religious tolerance is a feature of the diversity of the nation of indonesia that must be maintained. amid a pluralistic society, the main capital of creating harmony is pursuing tolerance. by maintaining such an attitude, the act of intolerance can be reduced or even disappear. some recent occurrences are caused by intolerance behaviors that resulted from a lack of education especially with regards to the core values of tolerance such as democracy, humanism, and pluralism. indonesia is a compound having a variety of ethnic, racial, cultural, linguistic, and religious diversity. in terms of religion, indonesia recognizes several religions, namely islam, roman-catholicism, protestantism, hinduism, buddhism, and confucianism. these religions have different principles and beliefs. the lack of social order to manage properly these differences would potentially cause conflicts. it is a general understanding 1see ferdi ferdian, afrizal, and elfitra, “fungsi forum kerukunan umat beragama (fkub) dalam sistem sosial penciptaan kerukunan umat beragama di kabupaten pasaman barat,” islam realitas: journal of islamic & social studies 4, no. 2 (2018): 144 2the same thing that was conveyed by burhanuddin daya and amin abdullah that in understanding religion needed a multi-approach, namely integration-interconnection, so that religion did not seem "stiff" and even scary or frightening. public lecture on interfaith and cultural dialogue on uin sunan kalijaga yogyakarta, 2010. 3 burhanuddin daya, agama dialogis merenda dialektika idealita dan realita hubungan antar agama (yogyakarta: lkis, 2004, vol. i), 73. udayana journal of law and culture vol. 4 no. 2, july 2020 231 that conflicts between religions contradict the principles of religions which basically teach the values of peace.4 in mainstreaming religious tolerance, social tools need to be complemented by proper laws and regulations. for this article, there have been cited law no. 7 of 2012 concerning handling of social conflicts and its implementing regulation and joint regulation of minister of religious affairs and minister of domestic affairs no. 8 and 9 of 2006 concerning guidelines for task implementation to heads/vice heads of regions in the maintenance of religious harmony, empowerment of religious harmony forum, and establishment of place of worship. to realize these laws and regulations, the government and religious leaders have tried to uphold religious tolerance to create an intimate and harmonious relationship between religious people. in fact, there are still frequent conflicts and disputes that use "religious labels", such as mutual suspicion between muslims and christians and other religions, which are sufficient to prove the failure of advocates of "peace". based on the aforementioned background, this article argues the need for handling social conflict through the planting of tolerance values in multicultural societies that in line with statutory provisions. it is a socioreligious study, that to some extent applies a legal approach. a library study was conducted to gather the information that is relevant to the topic, that was collected from textbooks, scientific journals, and website contents. besides, norms and principles as stipulated in laws and regulations were also cited to indicate the legal basis that has relevance to the topic discussed. the analysis is based on secondary data collection based on literature collected from various supporting literature. it applies miles and huberman's interactive analysis model which includes data reduction, data presentation, and conclusion. 2. result and discussion 2.1. reflecting the theory of social conflict resolution conflict theory is a theory that considers that social change does not occur through a process of adjusting values that bring change, but occurs due to conflicts that result in compromises that are different from the original conditions.5 this theory is based on the ownership of production facilities as the main element of class separation in society.6 conflict theory is the antithesis of functional structural theory, where functional structural theory places great emphasis on order in society. conflict theory sees conflict and conflict in the social system. conflict theory sees that in society it will not always be in order. the proof in any society must have experienced conflicts or tensions. then the conflict theory also sees the existence of domination, coercion, and power in society. conflict theory also talks about different authorities. these different authorities produce 4 inayatul ulya and ahmad afnan anshori, “pendidikan islam multikultural sebagai resolusi konflik agama di indonesia,” fikrah: jurnal ilmu aqidah dan studi keagamaan 4, no.1 (2016): 23. 5 bernard raho, teori sosiologi modern. (jakarta: prestasi pustaka publisher, 2007), 54. 6 verawati muljana, bab ii kajian pustaka. universitas sumatera utara, 2018. tolerance in multicultural communities: towards a comprehensive approach in handling social conflict ahmad suradi, john kenedi, and buyung surahman 232 superordination and subordination. the difference between superordination and subordination can lead to conflict because of differences in interests.7 the theory of conflict suggests that conflict is necessary to create social change. when structural and functionalism suggest that social change in society always occurs at the equilibrium point, theory of conflict sees social change due to conflicts of interest. but at a certain point, the community can reach a mutual agreement. in conflicts, there are always negotiations that are carried out so that a consensus is created.8 the theory of conflict is closely related to domination, coercion, and poweras it observes society that is united by "coercion," a regularity that occurs in society. this theory aims to analyze the origin of an occurrence of a violation of rules or the background of someone who behaves deviant. the conflict here emphasizes the pluralistic nature of society and the imbalance in the distribution of power that occurs between various groups, because of the power possessed by elite groups, the groups also have the power to create regulations, especially laws that can serve their interests.9 the conflict is motivated by differences in the characteristics that individuals carry in an interaction. these differences include physical characteristics, intelligence, knowledge, customs, beliefs and so forth. with the existence of individual characteristics in social interaction, conflict is a natural situation that occurs in every community and no community has never experienced conflict between its members or with other community groups, this conflict will only disappear along with the disappearance of a community itself.10 the description of the polemic on the basic point of view of conflict is illustrated through the turner;s perspective: “conflict is thus designed to resolve dualism: it is a way to achieving some kind of unity, even if it be through the annihilation of one of the conflicting parties. this is roughly parallel to the fact that it is the most violent symptom of a disease which represents the effort of the organism to free itself of disturbances and damages caused by them.”11 in line with turner's statement above, wes sharrock in pip jones explained that the view of conflict is built on the assumption that every society can provide an extraordinary good life for some people but this is usually only possible because most oppressed people are suppressed. 12 7 ibid. see also m. wahid nur tualeka, “teori konflik sosiologi klasik dan modern,” jurnal al-hikmah 3, no. 1 (2017): 36 8 verawati muljana, loc.cit. 9 anonym, teori konflik sosial dalam perspektif karl marx, universitas islam negeri sunan ampel surabaya. 10 ibid. 11 jonathan h. turner. the structure of sociological theory (illiois: the dorsey pers, 1975), 84 12 pip jones. pengantar teori-teori sosial dari teori fungsionalisme hingga postmodernisme (introducing social theory), translated by achmad fedyani saifuddin (jakarta: yayasan obor indonesia, 2009), 15 and sri yuliana agusalim, "teori – teori sosial pip, jones (2009)." slide presentation. http://slideplayer.info/user/13642390/ udayana journal of law and culture vol. 4 no. 2, july 2020 233 therefore, differences in interests within the community are as important as agreement on rules and values, and most people are organized so that the community does not only provide greater benefits to some citizens, it means inconvenience for some other citizens who do not get convenience. based on turner's analysis that since the 1950s, when talcott parsons's ideas collapsed, the tradition of criticism began to take a significant role in the building of social studies.13 functional theory in the study of sociology as a variant of thought built by parsons is considered as one of the causes of the emergence of the natural reality of conflict in social reality. this fact is also expressed by david lockwood as explained by turner that the perspective built by parsons to create social equilibrium, on the other hand has created conceptual enmity in the social world. the social equilibrium perspective built by parsons, rests on several theoretical basic principles. the rationale parsons developed according to the giddens and turner 14 at the metatheory level was the integration between ideographic, ideal-type, nomological and constructivist methodologies. in concluding the analysis of parsons's thinking, giddens and turner explained that each of the procedural forms can be analyzed with positivistic and idealistic variants. the steps that need to be realized as a continuation of this condition are to place a link between causal and teleonomic explanatory positivistic methods, with idealistic methods that highlight the normative and world aspects of life or rational interpretations. the ideal of the theoretical integration model built by parsons above, at different levels, was rejected by marx's existence. marx argues that changes in society are based on the presence of revolutions in their lives. this fact is in line with the statement of nisbet in ekeh15 that in the 19th century there was a quite pressing reaction to the individualistic reality that occurred in europe. european sociologists think fundamentally that the subject of knowledge that can be responded to by the problem of order interests begins with the collapse of the old regime and the revolutionary spirit in democracy. the radical change that emerged was the emergence of the industrial revolution movement in france. in developing a model of resolution between class conflicts and social change, turner ignores marx16 in a sketch that social organization will be influenced by the dominant portion of contemporary social theory. marx began his study of simple things and general reality assumptions; economic organization, specifically on capital ownership, organizational determination in the interests of the organization. class structure and organizational building, like cultural values, beliefs, religious dogmas, and other systematic ideas, as a whole from the existing reality occupies the highest level of economic reflection relying on social reality. 13 jonathan h. turner, op.cit., 78. 14 anthony giddens and jonathan turner, panduan sistematis tradisi dan tren terdepan teori sosial (social theory today), translated by yudi santoso (yogyakarta: pustaka pelajar, 2015), 198. 15 peter p ekeh. social exchange theory; the two traditions (london: heinemann educational books, 1974), 3 16 jonathan h. turner, op.cit, 79. tolerance in multicultural communities: towards a comprehensive approach in handling social conflict ahmad suradi, john kenedi, and buyung surahman 234 conflict resolution at its basic level relies on the contradictory manifestations that arise from social areas. 17 regarding this conceptualization, the contradiction in martono's view is a central fact regarding everything that exists. these contradictions gave birth to a dialectical law. the law of the discipline asserts that contradiction is the essence of everything, both in nature and in human life. community development takes place under dialectical law which consists of three components of thesis, antithesis, and synthesis. the 1945 constitution of the republic of indonesia determines that “every person shall have the right to protection of his/herself, family, honour, dignity, and property, and shall have the right to feel secure against and receive protection from the threat of fear to do or not do something that is a human right”18 the consitition also stipulates that “every person shall have the duty to respect the human rights of others in the orderly life of the community, nation and state.”19 in exercising the rights and freedoms, every person obye the legal restrictions to ensure the recognition and respect of the rights and freedoms of others and of satisfying just demands based upon considerations of morality, religious values, security and public order in a democratic society.20 regarding the religious activities, the state guarantees the freedom of worship according to individual religion or belief.21 status of conflict in a state of civil order up to civil emergency referres to in government regulation in lieu of law no. 23 of 1959 concerning a state of emergency,22 in which the president may all or part of the territory of the republic of indonesia in danger with the degree of condition civil emergency or military emergency or state of war by reasons of, among others, security or law order is threatened.23 it, among others, reflects the application of a notion that the law acts as an important tool to create a safe and peaceful society.24 2.2. characteristics of multicultural communities in indonesia indonesia is a pluralistic country, both from the social, cultural, ethnic, racial, sectarian, and religious aspects. therefore, indonesian society is referred to as a multicultural society. facing this condition, the indonesian nation is required to be able to reconstruct a national culture that can be an 17 nanang martono. sosiologi perubahan sosial: perspektif klasik, modern, posmodern, dan poskolonial. (jakarta: pt. rajagrafindo persada, 2012), 44. 18 article 28g (1) of the 1945 constitution of the republic of indonesia 19 ibid., article 28j (1) 20 ibid., article 28j (2) 21 ibid., article 29 (2) 22 andi m. faisal bakti. islam and nation state formation in indonesia: from communitarian to organizational communications (jakarta: logos wacana ilmu, 2000), 72. 23 article 1 (1)(1) of government regulation in lieu of law no. 23 of 1959 concerning a state of emergency 24 muhammad rinaldy bima, “implementation of state of emergency within the constitutional law system in indonesia,” diponegoro law review 4, no.1 (2019): 123. udayana journal of law and culture vol. 4 no. 2, july 2020 235 integrating force on the diversity and heterogeneity of socio-culture, especially in religious life.25 in a multicultural society, it is emphasized that the diverse patterns of indonesian society are intended not only for the diversity of ethnic groups but also for the diversity of cultures that exist in society. the existence of this cultural diversity can be seen in mutual respect, respect, tolerance between cultures.26 in this context it is emphasized, that differences are not a barrier to unite in realizing ideals in the life of nation and state as embodied in the 1945 constitution of the republic of indonesia and pancasila.27 the multicultural society is a society that has differences in ethnic groups, languages, religions, and customs. according to ekstrand, a multicultural society is a society consisting of two or more elements living alone without any intermingling in one political entity. 28 a multicultural society is a society consisting of two or more social groups, communities, or groups that are culturally, economically and politically separated (isolated), and have an institutional structure and are different from one another.29 the main reference for the realization of a multicultural indonesian society is multiculturalism, which is a view that recognizes and admires diversity in unity, both individually and culturally. multiculturalism can develop when supported by tolerance and willingness to respect each other. efforts to build a multicultural indonesia can only be realized if: first, the concept of multiculturalism is understood to be the urgency of the indonesian people and makes it a life guide. second, there is a common understanding of the meaning of multiculturalism for the life of the nation. third, the study of multiculturalism covers a variety of problems, namely politics and democracy, justice and law enforcement, employment and business opportunities, cultural rights of ethical and moral principles.30 multiculturalism is not only discourse but is an ideology that must be fought for. it is really needed as a foundation for the establishment of democracy and the welfare of a plural society. multiculturalism is not a stand-alone ideology but requires another concept that is used as a reference for understanding social life. van den berghe classifies six characteristics possessed by multicultural society, as follows:31 25 eka prasetiawati, “urgensi pendidikan multikultural untuk menumbuhkan nilai toleransi agama di indonesia,” jurnal tapis 1, no.2 (2017): 297. 26 ahmad suradi, “the development of oriented on multicultural islamic religious education in school,” journal of education and learning 12, no. 3 (2018) read also ahmad suradi and nurfitria dewi, “existence of sufism in the midst of multicultural and global communities (prospects and problems of the development), jurnal ushuluddin 27, no. 1 (2019): 107-120. 27 eka prasetiawati, op.cit., 289 28 l. h ekstrand, “multicultural education” in international encyclopedia of the sociology of education, ed. lawrence j. saha, (new york: pergamon, 1997), 345-346. 29 ahmad suradi¸ pendidikan islam multikultural (yogyakarta: samudra biru, 2018), 302 and ahmad suradi, “the challenges of education based on multicultural in national local culture conservation in globalization era,” jurnal cendekia 16, no.1 (2018): 83. 30 eka prasetiawati, op.cit., 288. 31 michael banton. racial and ethnic competition (new york: cambridge university press, 1983): 82-84. tolerance in multicultural communities: towards a comprehensive approach in handling social conflict ahmad suradi, john kenedi, and buyung surahman 236 1. the occurrence of segmentation into forms of social groups. diversity in the community can make people form certain groups based on the same identity so as to produce a different sub-culture with one another. for example, there are malay, batak, palembang, and serawai tribes live on sumatera island that reprresent different culture and tradition. 2. having the division of social structures into non-complementary institutions. diverse communities make the structure of society experience differences between one community and another. the difference in the structure of society can be seen through social institutions that are not complimentary. for example, in a religious institution in indonesia that houses several religions has a different structure. these religious institutions do not complement each other because the characteristics of the diversity of society (religion) are different. 3. third, the lack of developing consensus (collective agreement). diverse communities have different standards of values and norms that are realized through community behavior. this is because the characteristics of different communities are then adjusted to the physical and social conditions. because of the diverse conditions of the community, collective agreements tend to be difficult to develop. 4. conflicts occur relatively frequently. differences that exist in society are one of the triggers for conflict. conflicts that occur can be very diverse, ranging from conflicts between individuals to conflicts between groups. this can be caused by the lack of tolerance of one another, both between individuals and between groups. 5. relatively, social integration grows because of coercion and interdependence in the economic field. if a multicultural society can be well-coordinated, social integration is very likely. however, social integration in society arises not because of consciousness, but from coercion outside the self or the group. besides, the community has a dependency on the economic field which can encourage integration due to their needs. an example is an individual who works for another individual or company to make himself obey all the rules made. 6. there is political dominance. certain groups in a multicultural society can have political forces that govern other groups. this becomes a form of domination (domination) from a group to other groups that do not have political power. azyumardi azra introduced several types of multicultural society, as follows: 32 1. asocyanist multiculturalism, which refers to a society where various cultural groups live autonomously and carry out minimal interactions with each other. for example, people in the "millet" system, they accept diversity but they maintain their culture separately from other communities. 32 rizal mubit, “peran agama dalam multikulturalisme masyarakat indonesia,” jurnal episteme 16, no. 1 (2016):172-173. udayana journal of law and culture vol. 4 no. 2, july 2020 237 2. accommodating multiculturalism, namely a pluralistic society that has a dominant culture, which makes adjustments, accommodates certain needs for minority cultures. accommodative multicultural society formulates and applies culturally sensitive laws, laws and forces, allow minorities to develop their culture and minorities do not oppose dominant cultures. multiculturalism can be found in england, france and several other european countries. 3. automatic multiculturalism, a pluralistic society where the main cultural groups try to realize equality and want an autonomous life in a political framework collectively and acceptable. an example of this multiculturalism is muslim communities in europe who want their children to get equal education and their children's education following their culture. 4. interactive critical multiculturalism, a pluralistic society in which cultural groups are not too concerned in the life of autonomous culture; but more demanding the creation of a collective culture that reflects and confirms their distinctive perspective. this multicultural, applies in the united states and the british black struggle (apartheid) in demanding independence. 5. cosmopolitan multiculturalism, which seeks to eliminate culture eliminate to create a society where individuals are no longer bound and committed to a particular culture. he was freely involved with intercultural experiments and at the same time developing their respective cultures. the supporters of multiculturalism are diasporic intellectuals and liberal groups who tend to postmodernism and view culture as resources they can choose and take freely. socio-cultural diversity is the meaning of a multicultural society, indicates that there are various kinds of cultures that have their characteristics, which are different and can be distinguished from one and each other. multiculturalism, simply can be formulated as a value system or policy that respects diversity in a society based on the willingness to accept and appreciate the existence of other groups of different ethnic, ethnic, gender and islamic faiths since the beginning have taught values of respect and appreciation the differences that exist, whatever differences arise on this earth.33 thus, various concepts relevant to multiculturalism include democracy, justice and law, cultural values and ethos, togetherness in equal differences, ethnicity, ethnic culture, religious beliefs, and community cultural rights. the problem faced with regard to efforts towards a multicultural indonesian society is very complex. 2.3. planting tolerance as conflict resolution the occurrence of social conflict in the name of religion (religious based-social conflict) is not a religious doctrine, because every religion teaches its people an attitude of tolerance and respect for others. religious people are generally expected to be able to build a tradition of religious 33 a. suradi¸ jurnal cendekia, loc.cit. tolerance in multicultural communities: towards a comprehensive approach in handling social conflict ahmad suradi, john kenedi, and buyung surahman 238 discourse that respects the existence of other religions, and can present religious discourse that is tolerant and transformative.34 the success in realizing the noble goal of eternal peace and brotherhood among the people who in reality do have different religions and faiths can be gained the courage to invite knowing or understanding religious diversity. to describe mutual respect and cooperation among different groups of people, ethnically, linguistically, culturally, politically, or religiously. therefore, the planting of tolerance values is a grand and noble concept that is fully an organic part of the teachings of religions, including islam. tolerance between religious people is important in daily life in society. tolerance functions as a guardian, safeguard, peace-maker, and unifier in communication and interaction so that the preservation of the environment is maintained and the realization of good relations between members of the community.35 tolerance is applied in the context of realizing a dynamic society, namely the awareness of peaceful and harmonious coexistence among a diverse indonesian society. it can even be said that the continuity of unity in diversity and the growing awareness of the importance of acceptance of differences in society. for example, the community adheres to a number of different religions and beliefs, indeed there is no intolerance between communities that are of different faiths, not mutually hostile or there are conflicts that result in damage or loss of life, and there is no discrimination against minorities. however, the majority tolerate and interact well with the minorities, guarding each other's feelings and intentions, living side by side in peace.36 tolerance is a modern concept to describe mutual respect and cooperation among different groups of people, ethnically, linguistically, culturally, politically, or religiously. tolerance, therefore, is a grand and noble concept that fully becomes an organic part of the teachings of religions, including islam. religion that has entered the multicultural society will experience an acculturation process so that religion can have many versions especially in the aspect of implementation.37 tolerance values in a multicultural society are reflected from mutual respect between the majority and minorities. for example, muslims and non-muslims maintain harmony and peace where their places of worship are situated closely one and each other. a real example of tolerance values was discovered in lalan sub-regency, musibanyuasin regency, south sumatera while celebrating the month of shuro in which muslims conduct religious activities and donate almsgiving to not only muslim fellows but also christians and hindus neigbours. conversely, christians and hindu fellows regularly send foods to their muslim neighbours when they celebrate their big religious festivals. besides, during the holy month of ramadhan, non 34 nurcholish madjid, pluralitas agama: kerukunan dalam keagamaaan; (jakarta: kompas nusantara, 2001), 38-39. 35 s. rizal panggabean, pola-pola konflik keagamaan di indonesia (1990-2008), (jakarta: asia foundation, 2009), 57 36 ali maksum, pluralisme dan multikulturalisme paradigma baru pendidikan islam di indonesia. (jakarta: aditya media publising, 2011), 135 37 rizal mubit, op.cit., 174. udayana journal of law and culture vol. 4 no. 2, july 2020 239 muslims often attend berbuka puasa bersama (breaking the fast together) organised by muslims, and help and distribute takjil to the poor peoples who lived surrounding them.38 from religion, what must be understood in analyzing conflict resolution and religious anarchism is that religion does not teach violence to the people. religion preaches the existence of peace and love both for fellow believers and other people who have different beliefs. the existence of a conflict about religious anarchism itself is questioned by religion because it has become a distortion in the teachings of the religion. religion is only an artificial identity in conflict to provide moral legitimacy to do violence against other parties. in addition to moral and identity legitimacy, igniting violence in the name of religion is also caused by errors in the interpretation of religious teachings which give rise to narrow understanding and chauvinistic attitudes. so in this context, there is no conflict between religious anarchism, which is precisely a conflict in the form of economic and political source rivalries and competition for public office in the government.39 to build tolerant and cultured relationships in a multicultural society, at least two things are needed. first, reformulation of culture and reinterpretation of orthodox religious doctrines are used as excuses to be exclusive and comprehensive. reformulation and reinterpretation must be done in such a way that culture and religion are not only receptive to the wisdom of local traditions but also guide in the vanguard to deliver built-in democracy in multicultural societies.40 second, dialogue between tradition and religion with modern ideas. today, the community enters a new historical phase where they must be able to adapt to large civilizations that are not based on tradition and religion, such as modern western culture. we cannot avoid secular ideas and theories, and this touches on terms with non-religious ideas that are the most challenging tasks facing muslims in modern times.41 third, religion focuses on the teachings of love encourages people to respect, love, and help one and each other through their respective institutions which are usually expressed in social and religious activities. fourth, religion indirectly encourages the creation of peace on earth which consists of pluralistic societies through these teachings.42 the concept of tolerance towards multicultural society is classified as accommodative multiculturalism, as parekh argued by azra, namely a pluralistic society that has a dominant culture, which accommodates certain needs for minority cultures. accommodative multicultural society formulates and applies culturally sensitive laws, laws and forces, allow minorities to develop their culture, and minorities do not oppose dominant cultures. 38 interview with rohman, islamic scholar of bengkulu city, at nu office-bengkulu, 2018. 39 wasisto raharjo jati, “sikap toleransi sebagai resolusi konflik keagamaan,” jurnal walisongo 21, no. 2 (2013): 394 40 john haba. “revitalisasi sikap toleransi: studi resolusi konflik di kalimantan barat, maluku dan poso,” in agama dan sikap toleransi dalam tantangan global, ed. irwan abdullah (yogyakarta: pustaka pelajar, 2008), 150. 41 ibid. 42 ibid., 151 tolerance in multicultural communities: towards a comprehensive approach in handling social conflict ahmad suradi, john kenedi, and buyung surahman 240 multiculturalism can be found in england, france and several other european countries.43 however, at the same time the need to revive discursive and dialogical space between ethnicities and religious communities also emerged is multiculturalism as part of post-materialism which would become a patron of conception in cultivating tolerance to be revitalized in a climate of conflict that could erupt at any time. the vital role of tolerance is as media for conflict resolution. first, tolerance is a sign of the identity of a community. this identity shows that the community has a culture of peace which means that the community is civilized. it is generally assumed tha conflict is a symbol of barbarian culture. therefore, tolerance reflects the community desires s to portray itself as a peaceful community. secondly, tolerance itself provides a cohesive aspect in the form of adhesive elements across cultures and religions, cross-citizens, and beliefs. in this context, tolerance can be interpreted as a dialogical space or arena to dissolve all kinds of identity political exclusivity inherent among various groups. the effort to bridge various cross-interests is an effort to build inclusiveness in reducing the potential for greater conflict. third, it is different from the application of positive law as a media for conflict resolution which has been carried out by our law enforcers who have the impression of being "forced". for example, a legal mechanism to address the violation of rules on religious harmony makes the conflict resolution seems artificial and temporary in nature despite having permanent legal force. the attitude of tolerance as part of conflict resolution is more towards inviting all parties to negotiate by utilizing emotional and cultural closeness. fourth, tolerance gives color to togetherness for a community and can function to encourage the establishment of togetherness, appreciation, as well as a mechanism together to dismiss various possibilities that can reduce, even undermine communal solidarity, which is believed to originate and grow on a shared consciousness, from a community integrated. fifth, the attitude of tolerance will change the mindset and reciprocal relationships of individuals and groups, by putting above the culture they have. then it can be said that tolerance is a form of synthesis of sociocultural and socio-religious elements whose purpose is to re-establish relations between fellow citizens who are reduced to struggling for political and economic interests.44 social conflicts that have a major impact on humanitarian issues are potential for human rights violations. as a country rich in ethnicity, religion, and culture, indonesia is known as a democratic country with a high level of tolerance.45 however, the rise of social conflict that occurs shows that the function of tolerance does not work and there is something wrong with the 43 azyumardi azra, merawat kemajemukan, merawat indonesia, (yogyakarta: kanisius, 2007), 73 44 nurma ali ridwan,”landasan keilmuan sikap toleransi.” ibda: jurnal studi islam dan budaya 5, no.1(2007): 31. 45 abu hanifah, “toleransi dalam masyarakat plural memperkuat ketahanan nasional”. artikel puslitbang kemensos. 2014. diunduh dari www. depsos.go.id tanggal 14 mei 2020. udayana journal of law and culture vol. 4 no. 2, july 2020 241 way to treat it as the strength.46 one government effort to prevent social conflicts is by caring for the diversity of the indonesian nation through the re-grounding of the 4 pillars of the indonesian nation, namely: maintaining the integrity of the unitary state of the republic of indonesia; live and practice the values contained in pancasila; running the life of the nation and state based on the 1945 constitution, and strengthening the sense of unity as a nation of unity in diversity (bhinneka tunggal ika).47 up to now, there still exists the joint regulation of minister of religious affairs and minister of domestic affairs no. 8 and 9 of 2006 concerning guidelines for task implementation to heads/vice heads of regions in the maintenance of religious harmony, empowerment of religious harmony forum, and establishment of place of worship (hereinafter, joint minister regulation). the implementation of this joint minister regulation was questioned. some assessed that it implies discrimination that has increased religious intolerance, 48 while some others argued that it needs to be upgraded into a higher and legally binding regulation, rather than the current legal form.49 recently, the minister of religious affairs expressed his unwillingness to revise the joint regulation, but still opens for doing some reviews. 50 the law no. 7 of 2012 concerning handling of social conflicts was enacted by a great awareness by law-makers that hostiles and/or clashes between groups of people can cause social conflicts that result in disruption of national stability and impeded national development. 51 this law acknowledges that conflicts can arise from clashes between different religious believers and/or the same religious believers, tribes, and ethnicities.52 besides, the law covers three scopes of conflict management, namely conflict prevention, cessation of conflicts; and post-conflict recovery.53 also, this law stipulates an individual obligation of all peoples to develop an attitude of tolerance and mutual respect for the freedom to practice worship accordingly with its religion and beliefs.54 to further implement that law, the government adopted government regulation no. 2 of 2015 concerning regulations for implementing law no. 46 amin abdullah, pendidikan agama era multicultural-multireligius (jakarta: pusat studi agama dan peradaban psap, 2005), 29 47elly m. setiadi dan usman kolip, pengantar sosiologi pemahaman fakta dan gejala permasalahan sosial: teori, aplikasi, dan pemecahannya (jakarta: kencana prenada media group, 2015), 378 48 binsar a. hutabarat, “evaluasi terhadap peraturan bersama menteri tahun 2006 tentang pendirian rumah ibadah,” societas dei jurnal agama dan masyarakat 4, no. 1 (2017): 28-29. 49 liputan6, “peraturan kerukunan beragama perlu jadi uu,” 16 september 2019. https://www.liputan6.com/news/read/296574/peraturan-kerukunan-beragama-perlujadi-uu 50kumparan news, “menteri agama: belum ada niat merevisi skb 2 menteri soal pendirian rumah ibadah” , 18 february 2020, https://kumparan.com/kumparannews/menteri-agama-belum-ada-niat-merevisi-skb-2menteri-soal-pendirian-rumah-ibadah-1srgtzeklpz/full 51 law no. 7 of 2012 concerning handling of social conflicts, considerations, part b 52 ibid., article 5 (b) 53 ibid., article 4 54 ibid., article 7 https://www.liputan6.com/news/read/296574/peraturan-kerukunan-beragama-perlu-jadi-uu https://www.liputan6.com/news/read/296574/peraturan-kerukunan-beragama-perlu-jadi-uu https://kumparan.com/kumparannews/menteri-agama-belum-ada-niat-merevisi-skb-2-menteri-soal-pendirian-rumah-ibadah-1srgtzeklpz/full https://kumparan.com/kumparannews/menteri-agama-belum-ada-niat-merevisi-skb-2-menteri-soal-pendirian-rumah-ibadah-1srgtzeklpz/full tolerance in multicultural communities: towards a comprehensive approach in handling social conflict ahmad suradi, john kenedi, and buyung surahman 242 7 of 2012 concerning handling of social conflicts. the regulation was created to ensure the handling of social conflicts is carried out comprehensively, coordinated, and integrated in order to protect and provide a more optimal sense of community security. 55 the government and regional government carry out conflict prevention through, among others, activities to strengthen religious harmony; improvement of community harmony forums; and religious education and the planting of values of integration nationality; 56 in implementing conflict prevention, the government and local government optimizing the peaceful settlement of disputes through deliberations to reach consensus in a respect to religious norms, moral norms, customary norms, and statutory provisions and by involving religious leaders, traditional leaders, and/or other elements of the community.57 that government regulation also covers the issue of law enforcement, in which those who violate the law related to social conflict will be prosecuted in accordance with statutory provisions.58 moreover, it enables the use of military force to assist the handling of social conflict after the government or regional government determines the status of a conflict situation,59 that in its implementation is coordinated by the police.60 3. conclusion the occurrence of social conflict is often motivated by differences in the characteristics that individuals carry in society. the success in realizing the noble goal of eternal peace and brotherhood and the prevention of social conflict among people who in reality do have different religions and cultures, and mutual respect and cooperation among different groups of people, ethnically, linguistically, culturally, politics, or religion. therefore, planting tolerance values is a grand and noble concept that fully becomes an organic part of the foundation of our country. tolerance functions as a guardian, safeguard, peace-maker, and unifier in communication and interaction so that good relations between community members are realized. besides the people who are realizing peace and brotherhood as an effort to prevent social conflict between different groups of people, the government is also actively protecting disunity and conflict between different communities. this is proven by the issuance of government regulation no. 2 of 2015 concerning implementation regulations of law no. 7 of 2012 concerning social conflicts resolution. this regulation aims to protect and provide an optimal sense of security for the community and the handling of social conflicts. it has covered the mechanism to address this matter by means of conflict prevention, cessation of conflicts, and post-conflict recovery. 55 government regulation no.2 of 2015 concerning regulations for implementing law no. 7 of 2012 concerning handling of social conflicts, considerations 56 ibid., article 3 57 ibid., article 4 (3) and article 7 58 ibid, article 9 (2)(g), article 33, and article 34 59 ibid., article 40 (1) 60 ibid., article 41 udayana journal of law and culture vol. 4 no. 2, july 2020 243 bibliography book abdullah, amin. 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"teori – teori sosial pip, jones (2009)." presentation. http://slideplayer.info/slide/11836499/ anonym, teori konflik sosial dalam perspektif karl marx, universitas islam negeri sunan ampel surabaya. http://digilib.uinsby.ac.id/2560/5/bab%202.pdf hanifah, abu. “toleransi dalam masyarakat plural memperkuat ketahanan nasional”. artikel puslitbang kemensos. 2014. diunduh dari www. depsos.go.id tanggal 14 mei 2020. muljana, verawati, bab ii kajian pustaka. universitas sumatera utara, 2018. https://docplayer.info/71944337-bab-ii-kajian-pustakamahasiswa-dapat-dikatakan-sebuah-komunitas-unik-yang-berada-dimasyarakat-dengan.html liputan6, “peraturan kerukunan beragama perlu jadi uu,” 16 september 2019. https://www.liputan6.com/news/read/296574/peraturankerukunan-beragama-perlu-jadi-uu kumparan news, “menteri agama: belum ada niat merevisi skb 2 menteri soal pendirian rumah ibadah” , 18 february 2020, 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https://kumparan.com/kumparannews/menteri-agama-belum-ada-niat-merevisi-skb-2-menteri-soal-pendirian-rumah-ibadah-1srgtzeklpz/full https://kumparan.com/kumparannews/menteri-agama-belum-ada-niat-merevisi-skb-2-menteri-soal-pendirian-rumah-ibadah-1srgtzeklpz/full e-issn 2549-0680 vol. 6, no. 1, january 2022, pp. 108-124 doi: https://doi.org/10.24843/ujlc.2022.v06.i01.p06 this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licenses/by/4.0/), 108 peaceful utilization of transboundary reservoir in continental shelf of ambalat gede khrisna kharismawan* master of legal science program, gadjah mada university, yogyakarta, indonesia i gede pasek eka wisanjaya** faculty of law, udayana university, denpasar, indonesia abstract maritime boundaries between indonesia and malaysia in ambalat have not been settled yet. this block is located on a continental shelf that is rich in transboundary reservoirs of hydrocarbons such as oil and gas. malaysia as a coastal state wants to apply archipelagic state’s boundary, whereas indonesia as an archipelagic state has applied for an extension of its continental shelf to the united nations. therefore, there is still unsettling business to be done in this area to fully utilize transboundary reservoirs in peace. this article aims to seek for way of solving the recurring conflict and utilizing transboundary reservoir in peaceful manner. this article is formulated using normative legal research based on statute, case, and conceptual approaches. this article concludes that differences between states on setting its boundaries is based on interpretation and is driven by economic value of resources, while there is opportunity to peacefully utilize transboundary reservoir by means of joint development based on international practices. keywords: ambalat; continental shelf; economic value; shared resources; transboundary reservoir. 1. introduction the continental shelf area is where most hydrocarbon deposits reside. most of those are the transboundary reservoirs, which need certain consideration between states and state -of-the-art mechanisms to extract and refine into a valuable product. many hydrocarbon dependant countries have transboundary reservoirs or located in disputed boundaries. 1 therefore, the need to collaborate between states and also with private corporations is a must.2 therefore, the development of transboundary oil and gas fields on the continental shelf is one of the most pressing problems for countries with hydrocarbon resources, especially for emerging countries.3 the uncertainty arising from ambiguous situation is more often deterring private entities such as oil and gas companies or even consortium of banks to finance projects in such countries. as a result, such countries are lagging **email/corresponding author: gedekhrisnakharismaw an@mail.ugm.ac.id and kharig01@gmail.com **email : eka_wisanjaya@unud.ac.id 1 karla urdaneta, “transboundary petroleum reservoirs: a recommended approach for the united states and mexico in the deepwaters of the gulf of mexico,” houston journal of international law 32, no. 2 (2010): 338. 2 vladimir litvinenko, “the role of hydrocarbons in the global energy agenda: the focus on liquefied natural gas,” resources review 9, no. 59 (2020): 15. 3 ibid. mailto:gedekhrisnakharismawan@mail.ugm.ac.id mailto:kharig01@gmail.com mailto:eka_wisanjaya@unud.ac.id peaceful utilization of transboundary reservoir in continental shelf of ambalat gede khrisna kharism awan and i gede pasek eka wisanjaya 109 behind in terms of industrial hydrocarbon development.4 for example is the liza-1 deposit, which cannot be developed due to the sovereignty dispute between venezuela and guyana.5 there is also the ambalat block which still lingers between indonesia and malaysia without any clear resolution. even until now, there is no agreement related to oil and gas in ambalat that has been signed by both states. the contested ambalat area is located in north borneo, right on the indonesia-malaysia border. the ambalat block itself is divided into several blocks. the east ambalat block is located on the indonesia-malaysia border in the tarakan basin with a distance of about 80 km east of tarakan city and a sea depth of around 2,000 m. there is an overlap in the east ambalat block operated by pertamina hulu energi (phe) east ambalat with the shell malaysia block boundary. although it has been owned by phe east ambalat since 2016, this political condition has prevented phe east ambalat from carrying out any exploration activities in this area.6 the geological survey center (pusat studi geologi, abbreviated as psg), a part of the geological agency in ministry of energy and mineral resources, through the oil and gas resources division, already studied the surroundings of east ambalat area, precisely in the tarakan basin and nearby, through several field activities and the preparation of recommendations for oil and gas working areas. the psg survey team succeeded in identifying several potential petroleum systems in this area, both cenozoic and mesozoic. 7 moreover, there is one mining point in this block that holds potential reserves of 764 million barrels of oil and 1.4 trillion cubic feet of gas. that is only a small part because ambalat has no less than nine mining points.8 the oil and gas deposits there are said to be usable for up to 30 years, which will benefit any country that controls it. this reservoir is estimated to be productive for up to decades and therefore has high economic value for indonesia and malaysia. on the other side, the aster field of malaysia in ambalat block contains substantial oil reserves of around 30,000-40,000 barrels per day, which are produced and managed by the italian oil and gas company eni s.p.a. 9 as this block is located on a continental shelf area whose boundaries have not been agreed upon by indonesia and malaysia, each country will have to propose a territorial claim line. therefore, psg hopes that the disclosure of data and oil and gas potential in the east ambalat area will 4 ibid. 5 canute james, “venezuela saber-rattles over guyana, us wades in,” https://www.argusmedia.com/en/news/2175764-venezuela-saberrattles-over-guyana-uswades-in 6 esdm ri, “eksplorasi migas di ambalat penambahan cadangan nasional dan kedaulatan nkri,” https://www.esdm.go.id/id/berita-unit/badan-geologi/ekplorasi -migasdi-ambalat-penambahan-cadangan-nasional-dan-kedaulatan-nkri 7 ibid. 8 national geographic, “sejarah panjang kemelut ri-malaysia di ambalat,” https://nationalgeographic.grid.id/read/13299388/sejarah -panjang-kemelut-ri-malaysiadi-ambalat?page=all 9 pulung widhi hananto, et. al., “legal scenario towards the policy of marine natural resources on the continental shelf: ambalat case study,” iop conference series: earth environtal science 530, (2020): 3. https://www.argusmedia.com/en/news/2175764-venezuela-saberrattles-over-guyana-us-wades-in https://www.argusmedia.com/en/news/2175764-venezuela-saberrattles-over-guyana-us-wades-in https://www.esdm.go.id/id/berita-unit/badan-geologi/ekplorasi-migas-di-ambalat-penambahan-cadangan-nasional-dan-kedaulatan-nkri https://www.esdm.go.id/id/berita-unit/badan-geologi/ekplorasi-migas-di-ambalat-penambahan-cadangan-nasional-dan-kedaulatan-nkri https://nationalgeographic.grid.id/read/13299388/sejarah-panjang-kemelut-ri-malaysia-di-ambalat?page=all https://nationalgeographic.grid.id/read/13299388/sejarah-panjang-kemelut-ri-malaysia-di-ambalat?page=all udayana journal of law and culture vol. 6 no. 1, january 2022 110 encourage the resolution of border disputes in this area, and will kickstart oil and gas exploration in the ambalat area. the control of the east ambalat block has strategic significance for pertamina in an effort to develop domestic asset exploration activities, especially in the deepwater and frontier areas. so far, indonesia and malaysia began to renegotiate the ambalat boundary line in 2005 after the ligitan and sipadan islands ownership case was resolved.10 both countries then agreed to refrain from any agitation or provocative actions and to resolve the case through diplomatic and peaceful means in 2009. 11 however, both countries have not yet concluded an agreement regarding delimitation. therefore, the authors would like to examine on how to utilize the transboundary reservoir between two or more countries, by using ambalat block as a pivot. previously, there was research by evi purwanti entitled “equitable principle dalam penentuan delimitasi perbatasan indonesia dengan negaranegara lain di zone ekonomi eksklusif d an land as kontinen” focusing on equitable principle in determining the delimitation of the single maritime boundaries of the exclusive economic zone (eez). 12 there was also research on the continental shelf by djarot d.a. andaru entitled “joint development agreement sebagai solusi penyelesaian sengketa wilayah zona ekonomi eksklusif laut natuna” focusing on joint development agreement as dispute settlement regarding eez in natuna sea.13 the two studies focused on different issues compared to this article because this article focuses on utilizing the economic value of the transboundary reservoir in the continental shelf through economical and business point of view. this article does not only serve the general purpose to weed out problems in determining boundaries of continental shelf between countries, but also specific purpose to identify and describe ways to utilize the economic value of the transboundary reservoir in continental shelf or in overlapping boundaries. this article, therefore, is expected to be an alternative reading for international law students focusing on sea and energy, as well as the wider community who have limited access to primary information sources. it is formulated by using normative legal research which is supported by statute, case, and conceptual approaches. the explanative analysis does not only use primary legal materials (multilateral treaties, bilateral agreements, and court decisions), but also secondary legal materials in the form of textbooks and journal articles, as well as tertiary legal materials. 10 tempo, “al ri-malaysia sepakat kasus ambalat selesai ,” https://nasional.tempo.co/read/59709/al-ri-malaysia-sepakat-kasus-ambalat-selesai 11 tempo, “indonesia-malaysia lanjutkan perundingan ambalat,” https://nasional.tempo.co/read/172196/indonesia-malaysia-lanjutkan-perundinganambalat 12 evy purwanti, “equitable principle dalam penentuan delimitasi perbatasan indonesia dengan negara-negara lain di zona ekonomi eksklusif dan landas kontinen” (master’s thesis, universitas gadjah mada, 2016), 1-120. 13 djarot d.a. andaru, “joint development agreement sebagai solusi penyelesaian sengketa wilayah zona ekonomi eksklusif laut natuna,” masalah-masalah hukum 49, no. 4 (2020): 345-358. https://nasional.tempo.co/read/59709/al-ri-malaysia-sepakat-kasus-ambalat-selesai https://nasional.tempo.co/read/172196/indonesia-malaysia-lanjutkan-perundingan-ambalat https://nasional.tempo.co/read/172196/indonesia-malaysia-lanjutkan-perundingan-ambalat peaceful utilization of transboundary reservoir in continental shelf of ambalat gede khrisna kharism awan and i gede pasek eka wisanjaya 111 2. result and analysis 2.1. different interpretations of territorial boundaries in ambalat the dispute over the ambalat block began in 1969, when indonesia and malaysia reached an agreement regarding continental shelf boundary on 27 october 1969.14 indonesia then ratified the bilateral agreement on 7 november 1969, yet malaysia unilaterally published a map defining its territory in 1979 that incorporates large areas of the ambalat block into malaysian territorial waters as blocks nd6 and nd7.15 this unilateral claim immediately drew protests from many of its neighbors, not only indonesia, singapore, the philippines, thailand, vietnam, but also china and the united kingdom of great britain and northern ireland (uk).16 indonesia then formally protested over malaysia's unilateral claim in 1980. malaysia’s claim is considered a political decision that has no legal basi s, because the boundary line which was determined by malaysia exceeds the eez line of 200 nautical miles as regulated in the united nations convention on the law of the sea (unclos) 1982. 17 however, this issue did not result in conflict until 2002, when the international court of justice (icj) ruled over ownership of the islands of ligitan and sipadan, which nearby ambalat area, to malaysia.18 the dispute was submitted to the international tribunal and also to the asean high council, but in the end, the two countries decided to resolve the issue through the icj.19 through decision dated 23 october 2001, the icj granted ownership rights of ligitan and sipadan to malaysia based on considerations of effective control. 20 the passing of effective control to malaysia is based on the treaty between the netherlands and the uk.21 during this period, not only the british had build existing infrastructure in the form of a beacon, but also had taken administrative actions in the form of a decree on tax collection for turtle farmers on the islands of ligitan and sipadan in the 1930s.22 by then, malaysia has proven to have control over the two islands as the successor of british territory. 14 the geographer, “continental shelf boundary: indonesia-malaysia,” https://www.state.gov/wp-content/uploads/2019/10/lis-1.pdf, 1-8. 15 pulung widhi hananto, et. al., op.cit., 4. 16 aziz i. bakhtiar, “penyelesaian sengketa antara indonesia dan malaysia di wilayah ambalat menurut hukum laut internasional”, jurnal hukum universitas brwijaya 36 (2015): 6. 17 john g. butcher, “the international court of justice and the territorial dispute between indonesia and malaysia in the sulawesi sea,” contemporary southeast asia 35, no. 2 (2013): 238-239. 18 sovereignty over pulau ligitan and pulau sipadan (indonesia v. malaysia), judgement, i.c.j. reports 2002, p.102. 19 ibid, 2. 20 wildani angkasari , et. al., “review article indonesia – malaysia dispute over maritime boundaries in the northern region of the malacca straits: implication to fisheries management regime,” journal of critical reviews 7, no. 3 (2020): 595. 21 nur fareha binti mohammad zukri, et. al., “dispute international between indonesia and malaysia seize on,” international journal of law recontruction 3, no. 1 (2019): 6. 22 areej torla, et. al., “the dispute between malaysia and indonesia over the nd6 and nd7 sea blocks: a malaysian perspective,” journal of east asia and international law 8, no. 1 (2015): 177. https://www.state.gov/wp-content/uploads/2019/10/lis-1.pdf udayana journal of law and culture vol. 6 no. 1, january 2022 112 ligitan and sipadan ruling to malaysia then was used as a foothold to malaysia’s claim on the ambalat block. malaysia, which has the status of a coastal state, later claimed to be an archipelagic state on the basis that they already had management rights over two islands, which are ligitan and sipadan. 23 nevertheless, up to this day, malaysia’s status remains as a normal coastal state. this status therefore is only allowed to draw normal baselines or straight baselines, which is off ambalat.24 on the other hand, indonesia is, both by de jure and de facto, indeed an archipelagic state. the concept of the archipelagic state itself is a result of indonesia ’s international diplomacy based on the djuanda declaration in 1957 to protect its maritime national interest, until the adoption of the concept in the unclos.25 in 2008, indonesia changed the baseline from the east coast of sebatik island to karang unarang and three other points in the southeast. this has resulted in the ambalat block being no longer located in all of indonesia's inland waters.26 the conflict subsided in 2009 when the governments and leaders of the two countries agreed to refrain from various activities that could be interpreted as a provocation by other parties. there are several explanations for this decline; indonesia and malaysia are neighbori ng countries and have the same socio-cultural and historical background for hundreds of years; the bilateral relationship between the se countries support the solidarity and development of the asean region; there are more than 1 million indonesian citizens in malaysia with various backgrounds, including tens of thousands of students. however, there are three factors that may instigate the conflict between indonesia and malaysia in ambalat. those factors are 27 (i) economic factors. indonesia and malaysia want to utilize the economic value of the transboundary reservoir contained in the ambalat block; (ii) media and national sentiment. the media can influence state policies and public attitudes towards an event. druce and baikoeni describe how the media in indonesia and malaysia are able to lead public opi nion to defame other parties; (iii) government and law enforcement. the governments of the two countries may unintentionally carry out provocative actions in the wa ters of the ambalat block. 2.2. peaceful utilization of transboundary reservoir in continental shelf utilization of natural resources shall be done appropriately and carried out for the benefit of the community, and ideally shall be aimed at meeting the needs as well as increasing the prosperity of the people 23 stephen c. druce and efri y. baikoeni . circumventing conflict: the indonesia – malaysia ambalat block dispute. (singapore: springer, 2016): 137-156. 24 pulung widhi hananto, et. al., op.cit., 4. see also unclos. 1982, art. 14 and art. 15. 25 unclos. 1982, art. 46 and art. 47. 26 agustina merdekawati, “the identification of facts and legal issues as first steps towards fair settlement of the delimitation dispute over the ambalat block between indonesia and malaysia,” the 1st icseas, (2016). 27 stephen c. druce & efri y. baikoeni, op. cit., 143-146. peaceful utilization of transboundary reservoir in continental shelf of ambalat gede khrisna kharism awan and i gede pasek eka wisanjaya 113 around the area.28 this general principle can also be put into practice in international realm. there are two situations regarding resources. in the first situation, the resources are traversing the boundary between countries. whereas in the second situation, the resources are located in an area which is claimed by two or more countries. first, transboundary resources are resources that cross the borders of two or more countries, in which each state has the right over the natural resources found within its territorial boundaries under international law.29 however, resources that transcend national borders present difficulties in managing access to these resources and the possible usage. no country can claim the exclusive right to access, use, and manage the resources with or without consent from other neighboring countries. 30 therefore, all states shall be involved in its managerial and operational activities. natural resources can be in any form, but there is a close parallel between the mechanism and principle of the transboundary reservoir (underground deposits of oil and gas) to the transboundary aquifer (underground water). based on the draft article on the law of transboundary aquifers, there are several general legal principles related to the use of transboundary water resources, among others, equitable and reasonable utilization, duty not to cause significant harm, and duty to cooperate.31 in the utilization of transboundary resources, each state where resources are located has sovereignty over part of those resources or those within its territory. 32 undeniably, state can exercise sovereignty. 33 philosophically speaking, the transboundary aquifer concept quite similar to transboundary reservoirs and therefore can be followed through. transboundary reservoir is a reserve of oil and gas where two or more states recognized rights or asserted claims on such reservoir in an area.34 the extraction of transboundary hydrocarbons by one state automatically affects the rights of other states toward same resources in its area. 35 without any agreement in force, the country concerned cannot unilaterally use transboundary resources without the risk of conflict from neighboring countries. therefore, the country can arrange for joint development in such agreed proportions with its neighbour. 36 the country may also decide to refrain from delimiting and, conversely, designate an area for joint 28 cheikh mbow, et. al., in putu gede arya sumerta yasa, “distribution and revenue sharing of natural resources in indonesia: autonomous region and legal pluralism perspective ,” udayana journal of law and culture 5, no. 2 (2021): 172. 29 kariuki muigua, “managing transboundary natural resources in kenya ,” http://kmco.co.ke/wp-content/uploads/2018/11/managing-transboundary-naturalresources-in-kenya-kariuki-muigua-26th-november-2018.pdf, 2. 30 ibid, 6. 31 international law commission, “draft articles on the law of transboundary aquifers,” https://undocs.org/en/a/res/71/150, art. 4, 6, 7. 32 ibid, art. 3. 33 ibid. 34 rene lefeber, “international law and the use of maritime hydrocarbon resources,” https://www.clingendaelenergy.com/inc/upload/files/igu 2015_law_of_the_sea_tf3_igu_final_may_2015.pdf. 35 ibid. 36 ibid. http://kmco.co.ke/wp-content/uploads/2018/11/managing-transboundary-natural-resources-in-kenya-kariuki-muigua-26th-november-2018.pdf http://kmco.co.ke/wp-content/uploads/2018/11/managing-transboundary-natural-resources-in-kenya-kariuki-muigua-26th-november-2018.pdf https://www.clingendaelenergy.com/inc/upload/files/igu-%202015_law_of_the_sea_tf3_igu_final_may_2015.pdf https://www.clingendaelenergy.com/inc/upload/files/igu-%202015_law_of_the_sea_tf3_igu_final_may_2015.pdf udayana journal of law and culture vol. 6 no. 1, january 2022 114 development in utilizing resources that is identified in that area. 37 transboundary oil and gas (reservoir) is basically bilateral, and thus includes not only political, but also technical matters to cope in different situations. the utilization of transboundary reservoirs is currently not subjected to the rules of universally applicable international law, but based on practices.38 moreover, article 74 (1) and article 83 (1) of unclos e xpress that territorial boundaries between countries shall be enforced by agreement as referred to article 38 of the icj statute to achieve a fair solution. icj explained in libya v. tunisia case that the equidistance method can be applied if such method leads to a fair solution.39 in qatar v. bahrain case, icj stipulates that designation of a maritime zone beyond 12 nautical miles shall draw a line based on equal distance, before considering whether there are circumstances requiring adjustment of that line.40 whereas, the icj in the 2009 black sea case, introduced a method to maritime delimitation by; (i) utilizing temporary equidistant line; (ii) achieving fair results by equal distance line; and (iii) considering to strike disproportion between respective shore length ratios and the ratio between relevant sea areas with reference to the boundary line.41 the international tribunal for the law of the sea (itlos) preferred joint development arrangement (jda) to the delimitation of the continental shelf in its decision in bangladesh v. myanmar case .42 meanwhile, unclos recognizes the constraints for countries to conclude a legally binding boundary treaty in an area of overlapping boundary claims and therefore intended to provide a temporary solution based on article 74 (3) and article 83. the solution is based on the country’s obligation to make temporary arrangements which include a moratorium on resources.43 furthermore, it says that if delimitation cannot be carried out by agreement, the countries concerned will have to make every effort to not jeopardize or hinder the achievement of peace. moreover, the arrangement must be without prejudice to final limitation.44 37 ibid. 38 ibid. 39 continental shelf (tunisia v. libyan arab jamahiriya), judgement, i.c.j. reports 1982, p. 62. 40 maritime delimitation and territorial questions between qatar and bahrain, merits judgement, i.c.j. reports 2001, p. 176. 41 maritime delimitation in the black sea (romania v. ukraine), judgement. i.c.j. reports 61, 2009, p.116-122. 42 dispute concerning delimitation of the maritime boundary between bangladesh and myanmar in the bay of bengal (bangladesh v. myanmar), judgment, itlos reports 2002, p. 455. 43 hazel fox, et. al. joint development of offshore oil and gas: a model agreement for states with explanatory commentary (great britain: british institute of international and comparative law, 1990), 34. 44 maritime boundary delimitation (guyana v. suriname arbitration), judgement, p.c.a. reports, p. 461. peaceful utilization of transboundary reservoir in continental shelf of ambalat gede khrisna kharism awan and i gede pasek eka wisanjaya 115 2.2.1. joint development the concept of joint development for shared resources is widely used as a general term for the unification of resources across borders, to common resources where delimitation has not been established by agreement. 45 therefore, joint development is an arrangement of practical nature. however, there is no universal definition of joint development regarding hydrocarbon resources aside from state practices that will be explained further in the following sub-sections.46 the legal basis for this concept comes from article 74 (3) and article 83 (3) of unclos, and leave it to the discretion of each country regarding provisional arrangements, which are based on good faith. international courts and tribunals have also endorsed joint development agreements as a way to sort the situation between countries. for example, as in the north sea continental shelf case, where icj argues that a joint exploration agreement is very appropriate to maintain a unified deposit in areas of overlapping claims. 47 in the 1982 tunisia v. libya case, judge ad hoc evensen introduced a system of joint exploration on oil and gas as a fair alternative solution to boundary disputes which were eventually adopted by the parties.48 in the eritrea and yemen arbitrations, the court held that the parties should give every consideration to the joint or combined shared resources.49 states have a duty to cooperate in utilizing natural resources, whether the normative content of the regulation has been, or not, determined.50 the cooperation may serve as a solution toward the utilization of economic value of overlapping areas rather than a long negotiation process to reach an agreement on boundary delimitation. however, there are a number of factors that must be considered apart from the utilization and legal rights, such as; (i) the recognition on the existence of overlapping claims to an areas; (ii) political intentions; (iii) opinions of the people in which country concerned; (iv) other factors, such as history; economics; available third parties as mediators; and the number of countries involve d.51 furthermore, when the states have decided to implement joint development as a solution in utilizing the economic value of resources in the area, there are several concerns such as (i) assurance that their national interest will not be jeopardized using this mechanism; (ii) the need of the negotiating countries to specify the working 45 hazel fox, loc.cit. 46 rainer lagoni and daniel vignes. maritime delimitation (the netherlands: martinus nijhoff publishers, 2006): 146. 47 north sea continental shelf sea cases (federal republic of germany v. denmark; federal republic of germany v. netherlands), judgement, i.c.j. reports 1969, p. 99. 48 david m. ong, “joint development of common offshore oil and gas deposits: ‘mere’ state practice or customary international law?,” asian journal of international law 93, no. 4 (1999): 792. 49 maritime delimitation (the government of the state of eritrea v. the government of the republic of yemen), judgement, itlos reports 1999, p. 417. 50 ibid. 51 robert beckman, et. al. beyond territorial disputes in the south china sea: legal framework for the joint development of hydrocarbon resources (uk: edward elgar publishing, 2013), 141. udayana journal of law and culture vol. 6 no. 1, january 2022 116 area of joint development; (iii) the need of the negotiating countries to agree on the form and extent of the scopes.52 2.2.2. arrangement practices the jda provides an opportunity to utilize transboundary resources without relinquishing claim to sovereignty or sovereign rights. 53 although the arrangement is counted as a temporary measure, nonetheless it can last for 20 years or more if properly designed and implemented. the jda means diverting focus on disputes for a generation or two, to the economic benefit of utilizing resources in the area. these arrangements tend to be implemented in areas where overlapping claims are occurred.54 the joint development zone will either include the entire overlapping area or only the specific area. the arrangement in general can be done through jointness or unitization. jointness is any form of unification de sired by the countries involved. this concept revolves around the two most important variables, namely the consideration between designated area and share ratio (defined area and share ratio), and the legal framework for exploiting resources. 55 unitization is an arrangement between all interested parties toward petroleum reservoir as a whole unit. 56 therefore, unitization is a legal mechanism whereby petroleum reservoirs that are in the line of jurisdiction are developed as a single entity, of which oil or gas reservoirs are located across multiple license areas developed jointly by the respective licensees.57the main principle is that the existing transboundary reservoir is developed as a single unit as if there are no boundaries. 58 unitization is therefore calculating the shares between both countries, which is usually done through a procedure which requires a thorough knowledge of the reservoir, particularly if it is to be exploited as a single source. unitization also may be neede d when the reservoirs stretch across two or more areas.59 the unitization agreement between the parties sets out the terms on which the transboundary reservoir will be jointly developed. the most recognized among others the unitization and unit operating agreement 52 ibid. 53 thomas a. reynolds, “delimitation, exploitation, and allocation of transboundary oil and gas deposits between nation-states,” ilsa journal of international & comparative law 1, (1995): 137. 54 robert beckman & leonardo bernard, “framework for the joint development of hydrocarbon resources,” asian yearbook of international law 22, (2016): 87. 55 ibid. 56 jacqueline l. weaver & david f. asmus, “unitizing oil and gas fields around the world: a comparative analysis of nationl laws and private contract,” houston journal international law 28, no. 1 (2006): 6-7. 57 ibid, 9. 58 patson arinaitwe , “exploitation of offshore transboundary oil and gas reservoirs: an international law perspective ,” ssrn, (2014): 3. 59 france-spain. “convention sur la delimitation des plateaux continentaux des deux etats dans le golfe de gascogne (golfe de biscaye), signee a paris le 29 january 1974,” united nations document st/leg./ser.b/19, p. 445. peaceful utilization of transboundary reservoir in continental shelf of ambalat gede khrisna kharism awan and i gede pasek eka wisanjaya 117 (uuoa) 60 and unitization and association of international petroleum negotiators (aipn) model unit agreement.61 to sum up, the unitization can be utilized where there has been a set border delimitation between adjacent countries, as happened in the north sea, frigg field reservoir agreement (the uk and norway), 10 may 1976; the statfjord field reservoirs agreement (the uk and norway), 16 october 1979; markham field reservoirs agreement (the uk and the netherlands), 26 may 1992. thus, this arrangement has to be agreed upon prior to development operation, by determining each right and obligation. on the other hand, jointness is thus best exercised if the state concerned fails to reach an agreement on delimitation of sea boundaries, by agreeing on practical arrangements for a certain period of time instead.62 2.2.3. shared mechanism the arrangement can take form in the mechanism of sharing revenues, which is generally established through equal distribution or any other scheme that is accepted by each party involved. there are some examples of existing agreements regarding shared mechanism between countries, such as (i) the 1993 management and cooperation agreement between senegal and guinea-bissau, establishing a common zone (joint zone) which also concerns not only hydrocarbon but also fishery resources. this arrangement is to be divided on a 50/50 basis; 63 (ii) the 1999 agreement between denmark-faroe islands and the uk which establish a special area which is mainly managing fisheries, which provides simultaneous access for both parties; 64 and (iii) the 2001 agreement between nigeria and sao tome and principe covering other eez resources apart from petroleum, and provides a 60/40 share of resources for nigeria/sao tome and principe.65 profit-sharing between countries is one vital component that needs to be negotiated prior to an agreement. there are some examples of the existing mechanisms of allocations between countries, such as (i) revenue 60 philip weems & nina howells, “oil and gas unitization: specific considerations for cross-border unitization,” https://www.jdsupra.com/legalnews/oil-and-gasunitization-specific-17185/ 61 ibid. 62 david e. anderson. modern law of the sea: selected essays (the netherlands: martinus nijhoff publishers, 2008), 498. 63 the management and cooperation agreement between the government of the republic of senegal and the government of the republic of guinea -bissau, treaty, delimitation treaty infobase, 14 october 1993, art. 2. 64 agreement between the government of the kingdom of denmark together with the home government of the faroe islands, on the one hand, and the government of the united kingdom of great bri tain and northern ireland, on the other hand, relating to maritime delimitation in the area between the faroe islands and the united kingdom, treaty, delimitation treaty infobase, 18 may 1999, art. 2 and 3. 65 treaty between the federal republic of nigeria and the democratic republic of sao tome and principe on the joint development of petroleum and other resources, in respect of areas of the exclusive economic zone of the two states, treaty, delimitation treaty infobase, 21february 2001, art. 3. https://www.jdsupra.com/legalnews/oil-and-gas-unitization-specific-17185/ https://www.jdsupra.com/legalnews/oil-and-gas-unitization-specific-17185/ udayana journal of law and culture vol. 6 no. 1, january 2022 118 sharing from petroleum resources is divided equally by 50/50, and jurisdiction over the area is exercised only by one of the countries involved (bahrain and saudi arabia agreement 1958); 66 (ii) a 50/50 division of resources, which is governed by the laws of one state, and an 85/15 share of the resources of the continental shelf, which applies to the laws of another country (senegal and guinea-bissau treaty 1993);67 and (iii) the combination of a single boundary that allows one country to exercise maximum jurisdiction with the combined continental shelf zone crossing that boundary unevenly, approximately 72/28, in favor of the same country (iceland and norway treaty 1981). 68 as previously described, the jda between overlapping boundaries is driven by state practice. to be effective, the countries involved must negotiate in good faith and fairly. furthermore, agreements and arrangements between the countries are made possible through diplomacy and science in which all the sovereign rights of the parties are considered. one of the important aspects of the jda is joint sovereign rights in certain areas with certain frameworks. however, both parties must respect each other’s sovereign rights so that both parties remain in harmony. undoubtedly, the benefits derived from the use of transboundary reservoirs will be more stable and durable than the benefits obtained unilaterally in conflicts. 2.3. joint development model for ambalat indonesia and malaysia shall cooperate in utilizing ambalat to strengthen their foothold in the area. as neighboring states and members of asean, both countries have to solidify their development and also help each other to resist china’s power projection and sphere of influence in this maritime region. in general, states may choose jda because of the following reasons, (i) to utilize resources within the area; (ii) to realize that delimitation is a complex and complicated process which may affect bilateral relations; and (iii) its ability to serve as a basis in formulating new agreement has been proved. 69 therefore, it is for the benefit of both indonesia and malaysia to utilize the economic value of transboundary reservoirs in a peaceful manner. so far, the driving force of delimitation is solely to monopolize resources (oil and gas). nevertheless, as the nature of transboundary reservoirs is similar to shared resources, there is an 66 bahrain-saudi arabia boundary agreement, treaty, delimitation treaties infobase, 22 february 1958, first and second clause. 67 management and cooperation agreement between the government of the republic of senegal and the government of the republic of guinea -bissau, treaty, delimitation treaties infobase, 14 october 1993, art. 2. the stated proportions are subject to revision once relevant natural resource discoveries have been made. this proportion, by which the continental shelf is shared between the two countries, has also now changed. in fact, senegal has accepted revenue share changes, currently amounting to 80/20. 68 agreement on the continental shelf between iceland and jan mayen, treaty, delimitation treaties infobase, 22 october 1981, art. 5 and art. 6. 69 adina anghelache, “history of unitization-based cooperation in the development of offshore cross-border deposits,” https://www.enpg.ro/wpcontent/uploads/2017/10/epg_2015-11-3_adina-anghelache_history-ofunitization_part1.pdf, 6. https://www.enpg.ro/wp-content/uploads/2017/10/epg_2015-11-3_adina-anghelache_history-of-unitization_part1.pdf https://www.enpg.ro/wp-content/uploads/2017/10/epg_2015-11-3_adina-anghelache_history-of-unitization_part1.pdf https://www.enpg.ro/wp-content/uploads/2017/10/epg_2015-11-3_adina-anghelache_history-of-unitization_part1.pdf peaceful utilization of transboundary reservoir in continental shelf of ambalat gede khrisna kharism awan and i gede pasek eka wisanjaya 119 obligation according to international law, as previously mentioned, between states to cooperate in good faith. this cooperation shall be joint development arrangement, which have variety of models such as (i) the single-state model; (ii) the joint-venture model; (iii) the joint authority model/the common entity model; (iv) the trustee development model; and (v) the parallel development model.70 a. the single-state model in this model, there is only 1 (sole) state that is given authority to exploit the natural resources. meanwhile, the other states receive a portion of sharing after the costs incurred from the sole state’s operations are deducted.71 nevertheless, this model may fall apart, because the other states are losing their sovereign rights and autonomy to the sole state. b. the joint-venture model this model is popular in business and often used in disputed areas. according to this model, e ach state nominates its own concessionaire, which enters into a joint venture with other state’s concessionaire . this model is built on an agreement which establishes compulsory joint ventures between states and their concession of oil companies to work in designated joint development zones. therefore, all subsequent contracts in this model are subject to the production-sharing principle.72 c. the joint-authority model/the common entity model this is the most complicated model because as it is based on a comprehensive agreement, which is then institutionalized to the highest level. an entity, such as a joint commission, is established and is given an authority not only to administer licenses but also to act on the behalf of those states.73 d. the trustee development model this model invites a third party to manage and develop natural resources. as a compensation each state will receive an allowance that the amount is determined based on an agreement. the advantage of this model is its professional ability to resolve resource -related disputes.74 e. the parallel development model this model suggests states to conduct resources-related activities independently and does not require any institutional agreement. but, it has a potency of conflict between states in the disputed area especially when natural resources have been decreased.75 the joint development model suitable to ambalat shall be based on the shared natural or artificial resources that is sufficient to be used by 70 ibid, 7-9. 71 rongxing guo, “territorial disputes and seabed petroleum exploitation: some options for east china sea,” https://www.researchgate.net/publication/294737633, 13. 72 ibid, 14-15. 73 ibid, 15. 74 ibid, 16. 75 ibid, 14. https://www.researchgate.net/publication/294737633 udayana journal of law and culture vol. 6 no. 1, january 2022 120 some users.76 it means that it produces a limited number of resource units so that the use of one state reduces the number of resource units available to other states. when a state reduces available resources through the use, then fewer resources are left available to the rest of the area. 77 the transboundary reservoir itself is a resource unit that is highly valuable and many actors benefit from consumptive extraction, therefore unilateral state actions will raise tension of the other. therefore, it is important to determine an institution along with ‘what can be done, ought to be done, or cannot be done in certain situations’. the joint development framework to resource management is applied in a sharing costs and benefits between stakeholders to ensure a fair distribution of resources and proportionate benefits to each state. based on what the authors have found, a model that is suitable for ambalat is either the joint authority model or the trustee development model. as both malaysia and indonesia are emerging countries that still need professional private entity’s capacity to develop their deep-water resources, the authors deemed that the trustee model is more appropriate to set up with adjustments that suit the need of both countries. 3. conclusion this article concludes that disputes over boundaries on the continental shelves, such as the case in the ambalat block between indonesia and malaysia, are generally triggered by territorial claims which is driven by economic value of resources. until now, the two countries have not finalized an agreement on the boundary line. however, there are three factors that may bring potential conflict over this issue, namely economic factors; media and national sentiment; and government and law enforcement. nevertheless, there are ways to utilize transboundary reservoirs in the continental shelf of ambalat by using certain arrangements, that is based on unclos. this convention expresses to settle such disputes by arrangement of practical nature. furthermore, those countries are obliged to cooperate in good faith and not to jeopardize peace. therefore, it is important to implement the jda as a way to utilize transboundary reservoirs in the continental shelf of ambalat without compromising each state’s position. there are some models of jda, which are; (i) the single -state model; (ii) the joint-venture model; (iii) the joint authority model/the common entity model; (iv) the trustee development model; and (v) the parallel development model. as for model suitable is the trustee model in the form of joint-venture legal entity. 76 martha claudia lopez & emilio f. moran, “the legacy of elinor ostrom and its relevance to issues of forest conservation,” current opinion in 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http://kmco.co.ke/wp-content/uploads/2018/11/managing-transboundary-natural-resources-in-kenya-kariuki-muigua-26th-november-2018.pdf http://kmco.co.ke/wp-content/uploads/2018/11/managing-transboundary-natural-resources-in-kenya-kariuki-muigua-26th-november-2018.pdf http://kmco.co.ke/wp-content/uploads/2018/11/managing-transboundary-natural-resources-in-kenya-kariuki-muigua-26th-november-2018.pdf https://www.state.gov/wp-content/uploads/2019/10/lis-1.pdf https://www.argusmedia.com/en/news/2175764-venezuela-saberrattles-over-guyana-us-wades-in https://www.argusmedia.com/en/news/2175764-venezuela-saberrattles-over-guyana-us-wades-in e-issn 2549-0680 vol. 6, no. 2, july 2022, pp. 166-183 doi: https://doi.org/10.24843/ujlc.2022.v06.i02.p03 this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licenses/by/4.0/) 166 risk or license? precautionary principle’s transition in genetically modified organisms’ benefits after job creation law rudi natamihardja* faculty of law, universitas lampung, bandar lampung, indonesia orima melati davey** master of law program, universitas lampung, bandar lampung, indonesia febryani sabatira*** faculty of law, universitas lampung, bandar lampung, indonesia desia rakhma banjarani**** faculty of law, universitas sriwijaya, palembang, indonesia ria wierma putri***** faculty of law, universitas lampung, bandar lampung, indonesia abstract this article aims to discuss the implementation of precautionary principle on the use of genetically modified organisms (gmo) in indonesia as well as to identify and evaluate the changes of provisions on precautionary principles related to the use of gmos as stipulated in the environmental law and the later job creation law in indonesia. this article employs normative legal research that descriptively examines humans, circumstances, and other phenomena to strengthen old theories and support new theories that are still in the drafting stage. it uses secondary data sources consisting of primary legal materials and secondary legal materials. the result shows that the implementation of precautionary principle on the use of gmos is based on the environmental law and the job creation law which can be seen in the amdal. under the environmental law, the implementation of precautionary principle prioritizes the importance of a risk's impact before the activity is carried out. whereas in the job creation law, the operation of an activity adjusts the level of risk, namely low, medium, and high. hence, based on job creation law, a business activity that already utilizes gmos is allowed to conduct its operation if the risk is assessed as low. it is due to a transition between the risk approach in the environmental law and the licensing approach in the job creation law. this article suggests that in gmo usage, the government should find more specific precautionary implementation than regulations and labels since regulations alone are too abstract to comprehend in a society. keywords: environmental law; genetically modified organisms; indonesia, job creation law; precautionary principle. * email: rudi.natamihardja@fh.unila.ac.id ** email: orimadavey23@gmail.com ***email/corresponding author: febryanisabatira@gmail.com ****email: desiabanjarani@fh.unsri.ac.id *****email: ria.wierma@fh.unila.ac.id https://doi.org/10.24843/ujlc.2022.v06.i02.p03 http://creativecommons.org/licenses/by/4.0/ mailto:rudi.natamihardja@fh.unila.ac.id mailto:orimadavey23@gmail.com mailto:febryanisabatira@gmail.com mailto:desiabanjarani@fh.unsri.ac.id mailto:ria.wierma@fh.unila.ac.id risk or license? precautionary principle's transition in gmo's benefits after job creation law rudi natamihardja, orima melati davey, febryani sabatira, desia rakhma banjarani, ria wierma putri 167 1. introduction food scarcity has motivated experts to find scientific breakthroughs in search of solutions. one of the efforts to fulfill world hunger is through biotechnology. biotechnology manipulates living organisms that aim to improve human welfare and the environment.1 biotechnology has been applied in simple human life; one example is yeast to make alcohol and bread. along with the times, traditional biotechnology has developed into modern biotechnology involving sophisticated genetic engineering. these genetically engineered products are known as genetically modified organisms (gmo). gmo undergoes genetic changes or deoxyribonucleic acid (dna) unnaturally through natural recombination. genetic engineering of gmos is a change in an organism‘s fundamental nature or characteristics, especially plants and animals, to create new characteristics according to human will and need. humans, animals, plants, enzymes, and other living organisms have changed their essential characteristics and properties through modern scientific technology.2 in human life, gmos are better known for food production and health. the technology analyzes how the characteristics of an organism can be passed on to other organisms to create new characteristics. one example of genetic engineering is that bacteria are introduced into a plant immune to pests.3 foods in the form of gmos are crops consumed by humans and animals. the yields of genetically modified crops are successful from crops that have been engineered to have characteristics that are resistant to drought, pests, and herbicides.4 some examples of gmo drugs are insulin because bacterial insulin is genetically modified to resemble the human insulin gene so that the protein content contained undergoes a synthesis process. in addition, genetic engineering can be found in vaccines, such as hepatitis b, which is produced from yeast. a precautionary principle based on potential risks before the natural phenomena reflects how the principle is used with the gmo.5 as much as gmos are essential breakthroughs, their alien and unknown nature sparks discouragement from society. debates on gmos are further complexed by the disagreement between the public and scientists. debates are seen through numerous studies. in 2013, the government of 1 andrew tylecote, ―biotechnology as a new techno-economic paradigm that will help drive the world economy and mitigate climate change,‖ research policy 48, no. 4 (2019): 2. 2 asheley r. landrum, william k. hallman, and kathleen hall jamieson, ―examining the impact of expert voices: communicating the scientific consensus on genetically-modified organisms,‖ environmental communication 13, no. 1 (2019): 53. 3 lilian e. forman. genetically modified foods (minnesota: abdo publishing company, 2010), 13. 4 stuart j. smyth, ―genetically modified crops, regulatory delays, and international trade,‖ food and energy security 6, no. 2 (2017): 79. 5 zhou tian-meng, et.al., ―the dilemma and solution of the precautionary principle in eu regulation of gmo——based on the analysis of case fidenato,‖ china biotechnology 38, no. 6 (2018): 97. udayana journal of law and culture vol. 6 no. 2, july 20222 168 kenya supported genetically modified or gm cotton plantations. however, a third of the community did not share the same opinion ten years prior.6 in 2015, the pew research centre found that only 37% of americans approve the gmo use, a very different comparison from 88% of the american association for the advancement of science (aaas) scientists. in 2016, a survey in china stated that 47% of the public are not fond of using gmos; some even view gmos as a bioterrorism form. in the same year, 60% of the poland people also despise benefiting gm products.7 subsequently, the precautionary principle became the ―bridge‖ between the environment and the commercial perspective regarding gmo utilization. the reason for such precautions is because there were many concerns about gmo use towards human health and the environment. one of these issues is the assumption that gmos can cause allergies. in the united states of america, there have been cases where people suffered an allergic reaction after consuming gmo food. for instance, people were experiencing nut allergies after consuming a soybean cultivar that was inserted with the 2s albumin8 gene for nutritional reasons.9 gmos could also intervene with the environment, especially biodiversity. one of the cases is in insecticidal genes inserted into bacillus thuringiensis or bt corn pollen that fatally affected the monarch butterfly larvae commonly found in north america. the pollen carried by the wind contaminated the milkweed, which is the larvae‘s source of food.10 gmos are also considered invasive because there is an array of unlabeled gmo products on the market. people would have consumed these products without claiming that they have interfered with gmo products.11 even though most of these impacts are generalized and supported by very few scientific studies, the potential is there, and a precautionary aim is to press the potential consequences to zero, which makes the principle taken into consideration. indonesia is one of the developing countries that accept gmo products. from the environmental aspect, indonesia recognizes the precautionary principle through article 2(f) of law no. 32 of 2009 concerning environmental protection and management (environmental law). therefore, the use of gmos that are in direct contact with the environment in indonesia must comply with the precautionary principle, which is implemented in the form of an analisis dampak mengenai lingkungan 6 sarah evanega, et.al., ―the state of the ‗gmo‘ debate toward an increasingly favorable and less polarized media conversation on ag-biotech?,‖ gm crops and food 13, no. 1 (2022): 38. 7 ibid. 8 2s albumin proteins are a class of essential seed storage proteins (ssps) that are required by seeds at many phases of development, including germination and seed defense. 9 angelo vega rodríguez, et.al., ―myths and realities about genetically modified food: a risk-benefit analysis,‖ applied science 12, no. 6 (2022): 9. 10 mehmed fidan and arif ayar. genetically modified organisms and effects on human health. in research and reviews in health science, ed. cem evereklioğlu, i (ankara: gece publishing, 2021), 106. 11 john paull, ―genetically modified organisms (gmos) as invasive species,‖ journal of environment protection and sustainable development 4, no. 3 (2018): 33. risk or license? precautionary principle's transition in gmo's benefits after job creation law rudi natamihardja, orima melati davey, febryani sabatira, desia rakhma banjarani, ria wierma putri 169 (amdal) or environmental impact analysis (eia).12 the later law no. 11 of 2020 concerning job creation (job creation law) has changed several provisions in the environmental law. these changes consist of license application steps, licensing regulation, risk accessor, involved community elements, support from the government, and consequences.13 the focus of this research is a precautionary principle that is connected with licensing as a barrier to risk. therefore, this article aims to discuss the implementation of the precautionary principle on the use of gmos in indonesia. in addition, the article identifies and evaluates the changes of provisions regarding precautionary principle on the use of gmos as stipulated in the environmental law and the later job creation law. it is normative legal research that descriptively examines humans, circumstances, and other phenomena to strengthen old theories and support new theories that are still in the drafting stage.14 the data sources used are secondary data sources consisting of primary and secondary legal materials. 2. result and analysis the risks of gmo products have been debated among experts for years. experts strongly recommend every gmo product be used according to the precautionary principle. therefore, the following discussion will further describe the relationship between applying the precautionary principle and the use of gmo products. 2.1. correlation between precautionary principles in the utilization of genetically modified organisms concerns have been raised concerning the safety of gmo products using processed food, raw food ingredients, or other components. as a result, it is essential to minimize the potential of this risk emerging through an analysis based on the precautionary principle. the precautionary principle serves as a criterion for gmo products to guarantee that their utilization does not have harmful effects. 2.1.1. precautionary principle as a risk standardization the precautionary principle is a standard-setting philosophy for preventing serious threats to human health or the environment. it is applied to natural occurrences that are characterized by uncertainty and a lack of scientific information.15 the principle is used for conducting estimation and calculation to minimize the potential risk and is considered one concept that 12 elly kristiani purwendah, ―perlindungan lingkungan dalam perspektif prinsip kehati-hatian (precautionary principle),‖ jurnal media komunikasi pendidikan pancasila dan kewarganegaraan 1, no. 2 (2019): 85. 13 anih sri suryani, ―perizinan lingkungan dalam undang-undang cipta kerja dan dampaknya terhadap kelestarian lingkungan,‖ info singkat: kajian singkat terhadap isu aktual dan strategis 12, no. 20 (2020): 14. 14 soerjono soekanto. pengantar penelitian hukum (jakarta: penerbit universitas indonesia, 2012), 50. 15 tian-meng, et.al., op.cit., 96. udayana journal of law and culture vol. 6 no. 2, july 20222 170 is widely outlined in various international environmental agreements, such as: (1) the 1992 convention on biological diversity. (2) the 1992 united nations framework convention on climate change. (3) the 1992 united nations convention on the protection and use of transboundary watercourses and international lakes. (4) the 1994 protocol to the 1979 convention on long-range transboundary air pollution on further reduction of sulphur emissions. (5) the 1995 agreement for the implementation of the provisions of the united nations convention on the law of the sea of 10 december 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stock. (6) the 1996 london protocol to the 1972 convention on the prevention of marine pollution by dumping of wastes and other matter. (7) the 2000 cartagena protocol on biosafety to the convention on biological diversity. (8) the 2001 stockholm convention on persistent organic pollutants. (9) the 2018 regional agreement on access to information, public participation and justice in environmental matters in latin america and the caribbean. precautionary becomes a general principle of public international law, including international environmental law, that is recognized and implemented worldwide. the principle is categorized as preventive measures that contain a careful action conducted ―before‖ an impact of a natural phenomenon occurs. the precautionary principle comprises the following elements:16 a. risk uncertainty precautionary measures or behavior go further than preventive measures because the measures are given in situations where the consequences and impacts are known,17 for example, the impact of smoking and the use of pesticides. preventive measures are carried out before it is known that there is a causal relationship between the existing technology in a product or activity and the potential damage or danger that will be caused due to the absence of scientific evidence.18 16 giulia claudia leonelli, ―judicial review of compliance with the precautionary principle from paraquat to blaise: quantitative thresholds, risk assessment, and the gap between regulation and regulatory implementation,‖ german law journal 22, no. 2 (2021): 195. 17 ante ivčević, et.al., ―local risk awareness and precautionary behaviour in a multi-hazard region of north morocco,‖ international journal of disaster risk reduction 50 (2020): 4. 18 ronald watson and victor preedy, ―genetically modified food: production, safety, regulation and public health,‖ 78. risk or license? precautionary principle's transition in gmo's benefits after job creation law rudi natamihardja, orima melati davey, febryani sabatira, desia rakhma banjarani, ria wierma putri 171 b. scientific assessment of potential risks the scientific assessment of potential risks is vital in preventing the precautionary principle from being misused. this element consists of two aspects, namely, risk assessment and risk management that are usually applied in the industrial sphere.19 c. potential for serious or irreversible damage the precautionary principle estimates the potential for severe or permanent damage. oil pollution in the sea is an example of estimated severe damage that is not necessarily permanent while the extinction of flora, fauna and natural resources is an example of serious permanent damage. this element can occur if natural phenomena are applied over a long period and with high intensity.20 d. proportionate precautions prevention in the precautionary principle prioritizes public health over the economy. the previous precautionary principle can be used to reduce exposure, monitor, label, test before entering the market, and conduct studies or research to reduce uncertainty decided by policymakers. however, a product ban is a last resort when a product‘s risk is too dangerous for a country to bear.21 e. there is a shift in the burden of evidence shifting the burden of proof is different from a traditional proof. definitive evidence will generally apply the product first and, over time, analyze its impact, while a shift in the burden of proof means the risk must be known before the product is applied. the burden of proof is left on the creators of the product or natural phenomenon to be responsible for the risks that occur. the product creator must provide scientific support that the product to be applied has zero risk.22 2.1.2. precautionary principle: linking genetically modified organisms products between environmental and economic aspects the precautionary principle, which is drawn from environmental risk management and is used as a tool to avert a major hazard to human health or the environment based on uncertainty or scientific knowledge estimations, is routinely applied to gmos. an estimate of damage can be eliminated or decreased by employing the precautionary principle. the 19 ibid. 20 ibid. 21 rajib deb, et.al., ―genetically modified crops: an alternative source of livestock feeding,‖ in genetically modified organisms in food: production, safety, regulation and public health (elsevier inc., 2016): 490. 22 ibid. udayana journal of law and culture vol. 6 no. 2, july 20222 172 precautionary principle can be regarded as a precautionary act that is carried out before the impact occurs.23 scientists have been debating the hazards of genetically modified foods. gmos, according to scientists, work on the precautionary principle because the risk of gmos is unpredictable. distribution of health and ecosystems are two of these two factors. gmos have a tendency to spread out of control in the environment, posing dangers that are difficult to assess.24 both of these parameters act as a risk assessment for determining the effects of gmos.25 if the two prerequisites are insufficient to verify a 0% gmo risk, the precautionary principle can be used to assess the gmo risk (precautionary measures) using the parts of the precautionary principle stated above. the usage of gmos in human life can be seen in the areas of food, health, and medicine.26 gm plants have been employed as processed crops that are consumed by humans and animals in the food industry. crops can be grown faster with genetic engineering techniques than with traditional methods. the harvest can be handled in such a way that it adapts to drought, pests, and herbicides, or has tolerance to them. the benefits of gmos can be divided into two categories: insect resistance and herbicide resistance.27 bt for short is a frequently debated pest-resistance genetic modification. bt is a naturally occurring pesticide that has been used as a repellent for decades and has been approved for use by organic farms as a pest management strategy. toxins can be extracted and introduced into the genes of crops, which are currently often used in maize. countries do not always accept the utilization of gmos. this is due to the risks posed by the use of gmos. countries are worried about the uncertainty of gmos, which pose a high risk to a country's sovereignty because gmo products can spread plant or animal diseases. the risks posed by gmo products have two aspects. these two aspects include the distribution and impact on health and ecosystems.28 ecologically, gmos have a habit of spreading out of control, creating challenges to ascertaining risks.29 crossbreeding of a plant species with gmos causes an effect on environmental systems that is very widespread, irreversible, and with uncertain risks. in the development of the use of gmos, the state is in a dilemma between the commercialization of gmos and the protection of sovereignty. this dilemma is bridged by the precautionary principle where 23 naveen thayyil. biotechnology regulation and gmos: law, technology and public contestations in europe (new delhi, india: edward elgar publishing, 2014), 65. 24 renate schubert. future bioenergy and sustainable land use (london and sterling: earthscan, 2010), 89. 25 m. g. edwards and g. m. poppy. environmental impact of genetically modified crops (oxfordshire: cab international, 2009), 72. 26 center of ecogenetics and environmental health. fast fact about genetically modified organisms (washington d. c.: national academy press, 2013), 39. 27 eliana m.g. fontes, et.al., ―the environmental effects of genetically modified crops resistant to insects,‖ neotropical entomology 31, no. 4 (2002): 499. 28 ashli akins, et.al., ―the universal precautionary principle: new pillars and pathways for environmental, sociocultural, and economic resilience,‖ sustainability 11, no. 8 (2019): 13. 29 schubert, op.cit., 149. risk or license? precautionary principle's transition in gmo's benefits after job creation law rudi natamihardja, orima melati davey, febryani sabatira, desia rakhma banjarani, ria wierma putri 173 countries can estimate potential risks before using gmos.30 therefore, the study illustrates the relationship between the precautionary principle and gmos through the following illustration. illustration 1. the linkage between the precautionary principle and the genetically modified organisms based on illustration 1, it can be seen that gmos are the main object of the problem. the gmos‘ purpose is to be utilized and commercialized, but it is hindered by the considerations of countries regarding environmental aspects. therefore, the application of the precautionary principle lies between commercialization and sovereignty. the relationship of the precautionary principle with gmos is as a benchmark or risk basis, meaning it acts as a liaison between the economic point of view and the environmental point of view in utilizing gmos. the precautionary principle, unlike the preventative concept, does not require certainty when determining the danger. as a result, there is a significant distinction between preventative and precautionary actions. precautionary measures go beyond preventative measures because preventive measures are used in cases where the implications and effects are known, such as the effects of smoking, pesticide use, and so on. precautionary precautions, on the other hand, are taken before it is known that there is a causal relationship between current technology in a product or activity and the possible damage or risk that will be created due to a lack of scientific evidence. this is especially true when it comes to gmos, because each gmo product is unique, posing unique dangers. 2.2. the implementation of precautionary principle on utilization of genetically modified organisms in indonesia based on the data for the year 2020, indonesia is one of the most populous countries globally, with 273 million people.31 indonesia is currently faced with an agricultural land crisis and declining crop 30 wahyu yun santoso, et.al., ―signifikansi pendekatan kehati-hatian dalam pengaturan organisme transgenik di indonesia,‖ jurnal hukum lingkungan indonesia 4, no. 1 (2017): 90. 31 bps-statistics indonesia, ―the indonesia population census 2020 highlights, (united nations expert group meeting, 9-12 february 2021),‖ 8. genetically modified organisms utilization and commercialization precautionary principle states sovereignty and the environment udayana journal of law and culture vol. 6 no. 2, july 20222 174 productivity in the agricultural sector. therefore, the use of gmos is an option in indonesia to promote people‘s welfare. even so, indonesia‘s dependency towards its nature makes the country very fragile to any kind of potential risks. hence, indonesia‘s regulation must apply precautionary measures in utilizing gmos. the implementation of the precautionary principle on the use of gmos in indonesia is as follows: table 1. implementation of precautionary principles on utilization of genetically modified organisms in indonesian law and regulations law and regulations the realization of precautionary principle’s implementation law no. 32 of 2009 concerning the environment protection and management (art. 47) environmental impact analysis law no. 18 of 2012 concerning food (art. 77-79) a. prg32 should not be produced without government approval. b. requirements for food containing prg are government regulations (government regulation no. 28 of 2004). government regulation no. 69 of 1996 concerning food labels and advertisements (art. 35) this article describes the obligation to include ―genetic engineering food‖ or at least a memorable prg logo. government regulation no. 28 of 2004 concerning food safety, quality, and nutrition this law outlines the requirements that must be met by a prg, such as genetic information, description of donor organisms, description of genetic modification and characterization, and food safety information. government regulation no. 21 of 2005 concerning biosafety there is an assignment to the biosafety commission by the minister or the head of non-departmental government institutions (lpnd) when providing recommendations for the biosafety of prgs. presidential regulation no. 39 of 2010 concerning the commission on the biosafety of genetically engineered products (kkh prg) kkh prg also carries out assignments from the minister and the head of lpnd such as technology assessment and evaluation and examination and proof of negative impacts. decree of the minister of agriculture no. 1038/kpts/hk.330/11/1997 concerning the establishment of kkh prg the legal basis for the formation of the prg kkh. the prg kkh has the primary function of formulating materials to prepare guidelines for environmental safety assessment, feed, and monitoring of prg utilization. joint decree of the ministers of agriculture, forestry and plantations, health, state food and horticulture 1999 concerning biosafety and food safety of phrg the contents of this joint decision include regulations regarding classification, security requirements, assessment procedures, rights, obligations, and reporting on prg security. regulation of the head of bpom33 no. hk.03.1.23.03.12.1563 of 2012 concerning guidelines for the assessment of food safety of genetically engineered products the biodiversity safety commission carries out the safety assessment of prg for genetically engineered products (kkh prg). 32 prg stands for ―pangan rekayasa genetik‖ or genetically engineered food. 33 bpom stands for ―badan pengawas obat dan national‖ or national agency of food and drugs control. risk or license? precautionary principle's transition in gmo's benefits after job creation law rudi natamihardja, orima melati davey, febryani sabatira, desia rakhma banjarani, ria wierma putri 175 table 1 describes the consistency, coherence, and correspondence regarding the application of the precautionary principle on the use of gmos through regulations in indonesia. the commission on the biosafety of genetically engineered products (komisi keamanan hayati produk rekayasa genetik/kkh prg) was established to analyze and assess the risks of genetically engineered products. in addition, through regulations related to gmo products, the public is asked to understand genetically modified food products through food labeling. 2.3. comparison of implementation of precautionary principles on utilization of genetically modified organisms according to the environmental law and the job creation law before understanding how to apply the precautionary principle to the use of gmo according to the environmental law and the job creation law, the research will first describe how to apply the precautionary principle according to each of these arrangements. 2.3.1. the implementation of precautionary principles on utilization of genetically modified organisms according to law no. 32 of 2009 concerning environmental protection and management environmental law in indonesia recognizes 3 (three) principles, namely, the polluter pays principle, the prevention principle, and the precautionary principle. the environmental law regulates the precautionary principle in article 2(f). the precautionary principle is then applied in the obligation to carry out an environmental impact analysis (eia) or amdal.34 article 47 paragraphs (1) and (2) of the environmental law stipulate that every business or activity that has the potential to have a significant impact on the environment, threats to ecosystems and life, and human health and safety is obligated to conduct an environmental risk analysis.35 environmental risk analysis can be carried out through risk assessment, management, and communication. this means that based on the environmental law regulation, if the legal subject in the future will carry out activities and businesses that utilize gmos, then as a precautionary measure, the risks of these activities and businesses must be reviewed first.36 34 martika dini syaputri, ―partisipasi masyarakat dalam penyusunan analisis mengenai dampak lingkungan berdasarkan uu no 32 tahun 2009,‖ varia justicia 13, no. 2 (2017): 125. 35 satria sukananda and danang adi nugraha, ―urgensi penerapan analisis dampak lingkungan (amdal) sebagai kontrol dampak terhadap lingkungan di indonesia,‖ jurnal penegakan hukum dan keadilan 1, no. 2 (2020): 133. 36 sri maulidiah, et.al., ―environmental management: a study on the precautionary principle in siak regency of indonesia towards sustainable development,‖ em international 26, no. 3 (2020): 10856. udayana journal of law and culture vol. 6 no. 2, july 20222 176 2.3.2 precautionary principles’ implementation on utilization of genetically modified organisms according to law no. 11 of 2020 concerning job creation the job creation law was enacted on november 2, 2020, which aims to address legal issues, commencing with the overlapping of laws and regulations or the incompatibility of rules with one another. in this case, this study focuses on the job creation law‘s substance, which consists of 79 laws with 15 chapters and 174 articles targeting 11 clusters, including environmental issues.37 thus, the job creation law impacts the revision and deletion of several articles carried out in the environmental law. one of the highlighted problems within the job creation law is the objective to abolish article 40, which requires an environmental license to obtain business permits. the abolition of the license has given rise to various legal polemics since licensing is essential in maintaining and determining an agreement from the authorities based on the law. based on theory, licensing has three vital functions, namely, (1) as an instrument of development engineering, (2) as an addition to state revenue, and (3) as a regulator of community action. in the third function, licensing prevents community behavior from damaging and demolishing the environment.38 thus, business activities must be carried out with various administrative and legal means necessary to the government, whether conducted in concrete or legal actions. issuance, implementation, and enforcement of laws based on the environmental license is a means to protect and preserve the environment from the activities of managing natural resources and their impacts on the environment. in this case, good governance principles must be implemented as standards for the government.39 in order to protect and preserve the environment, documents are required in the form of laws, eia or amdal, environment management efforts, and environment monitoring efforts or upaya pengelolaan lingkungan hidup dan upaya pemantauan lingkungan hidup (ukl-upl) and statement of ability to manage and monitor the environment or surat pernyataan kesanggupan pengelolaan dan pemantauan lingkungan hidup (sppl).40 amdal is an introspection procedure of the principal and significant impacts of a planned business or activity on the environment, which is then needed in a decision-making process regarding the implementation of such activity. regarding environmental protection and management, the primary factor that evolves the foremost concern is 37 fitri yanni dewi siregar, ―aspek hukum penyederhanaan perizinan badan usaha di bidang lingkungan hidup dalam undang-undang cipta kerja,‖ jurnal ilmiah penegakan hukum 7, no. 2 (2020): 188. 38 roni sulistyanto luhukay, ―penghapusan izin lingkungan kegiatan usaha dalam undang-undang omnibus law cipta kerja,‖ jurnal meta-yuridis 4, no. 1 (2021): 112. 39 ibid. 40 dwi febriyanti, et.al., ―fungsi amdal dalam pengendalian kerusakan dan pencemaran lingkungan setelah diundangkannya uu cipta kerja,‖ widya pranata hukum : jurnal kajian dan penelitian hukum 3, no. 2 (2021): 122. risk or license? precautionary principle's transition in gmo's benefits after job creation law rudi natamihardja, orima melati davey, febryani sabatira, desia rakhma banjarani, ria wierma putri 177 licensing.41 the licensing factor can be used as a guide for business actors who will manage the environment. environmental licensing is related to the obligation to obtain an amdal as an instrument for preventing ecological pollution where this principle is contained in the form of a legal product so that it is a necessity that must be obeyed by all parties, which means, in order for an environmental permit to be issued and approved, it must obtain an amdal.42 the concept of licensing is regulated in the environmental law. the provision regarding environmental licensing is outlined in article 1 (35) of the environmental law which regulates that all parties who establish business activities must acquire amdal or ukl-upl in the context of protection and environmental management as a prerequisite for obtaining business and/or activity permits. thus, a business and/or activity permit will be granted by the agency concerned if the business owner has environmental access. therefore, if the environmental license is revoked, the business and/or activity permit will be canceled. however, after the enactment of the job creation law, the abolition of environmental licenses was determined as a form of simplification of permits which caused a fundamental change in the implementation of the amdal mechanism.43 after analyzing the eia or amdal as the implementation of the precautionary principle, the research will see how the amdal arrangement in the job creation law. the regulation regarding amdal in article 24 of job creation law has changed. the feasibility test is one of the transitions regarding amdal. according to its impact on the environment, this test is carried out at the beginning of business activities carried out before business activities. the government conducts the feasibility test by appointing a certified expert or institution.44 in addition, business permits can be issued before or after issuing the environmental feasibility decree.45 therefore, if there is a business activity that utilizes gmo products and the risk is considered low, then the business activity can be carried out. this is not under the precautionary principle, which prevents scientific uncertainty about risk. the following is a comparison of the implementation of the amdal between the environmental law and the job creation law.46 41 muhammad al ikhwan bintarto and muhammad uwais alqarni, ―landasan filosifis, aspek moral dan aspek keadilan dalam pembentukan uu cipta kerja,‖ jatiswara 36, no. 3 (2021): 280. 42 martika dini syaputri, op.cit., 127. 43 siregar, loc.cit. 44 ibid. 45 luhukay, op.cit., 118. 46 sukananda and nugraha, op.cit., 131. udayana journal of law and culture vol. 6 no. 2, july 20222 178 table 2. comparison of amdal arrangements between the environmental law and the job creation law elements environmental law job creation law stages process environmental documents (amdal or ukl-upl), environmental approvals, environmental permits, and business permits process environmental documents (amdal or ukl-upl), environmental approvals, business permits licensing process the impact is significant or not significant towards the environment categorized into high risk, medium risk, and low risk amdal evaluator amdal assessment commission or komisi penilai amdal (kpa) feasibility test institute or lembaga uji kelayakan (luk) amdal evaluator establisher minister, governor, or regent/mayor national government communities involved in amdal communities directly affected, environmentalists, communities affected by decisions in the amdal process communities directly affected it can be seen from table 2 that there are transitions and differences regarding amdal arrangements between the environmental law and the job creation law. in the environmental law, the precautionary principle‘s implementation prioritizes the importance of the impact of a risk before the activity is carried out. meanwhile, in the job creation law, an activity can be implemented if the risk is assessed as low because there is a transition between the risk approach in the environmental law and the licensing approach in the job creation law. such transition is considered to be a threat to the future environment management system since the job creation law determined the level of risk, namely low, medium, and high. therefore, according to the job creation law, it is possible for business activities that already utilize gmos to be operationalized even if the risk is assessed as low because there is a transition between the risk approach in the environmental law and the licensing approach in the job creation law. the transition from risk-based to license-based is one of the many legal problems that have arisen since the enactment of the job creation law. another concern from this transition is that in the job creation law, the community‘s involvement towards risk is merely preventive, whereas the direct monitoring of the environment is managed by the license applicant. this given role is very subjective and does not fulfill the definition of precaution from the environmental point of view.47 moreover, since its promulgation in 2020, the job creation law has been in the spotlight of legal critics because it is considered to have material and formal weaknesses.48 however, beyond the reasons for the necessity for a revision of the job creation law, the environmental aspect, unfortunately, became the aspect that was least paid attention to. in november 2021 or a 47 m reza baihaki, ―persetujuan lingkungan sebagai objectum litis hak tanggung gugat di peradilan tata usaha negara (telaah kritis pergeseran nomenklatur izin lingkungan menjadi persetujuan lingkungan dalam undang-undang nomor 11 tahun 2020 tentang cipta kerja),‖ majalah hukum nasional: media pembinaan dan pembangunan hukum 51, no. 1 (2021): 13. 48 ibid. risk or license? precautionary principle's transition in gmo's benefits after job creation law rudi natamihardja, orima melati davey, febryani sabatira, desia rakhma banjarani, ria wierma putri 179 year of its implementation, the job creation law through decision no. 91/puu-xviii/2020 was declared ―conditionally unconstitutional‖ by the constitutional court.49 this decision is the result of the partial approval of the application for a formal review of the job creation law. the job creation law is declared contrary to the 1945 constitution of the republic of indonesia and has no binding legal force as long as it is not amended within two years of the decision being made. thus, the job creation law will be declared permanently unconstitutional if improvements are not made within the given period. the court decision might possess an adequate opportunity for the development of environmental law in indonesia. although the provisions related to environmental licensing based on the job creation law are still in effect, with a conditionally unconstitutional status, the issue of environmental permits can be reviewed and subject to material revisions to be included in the job creation law in the future.50 3. conclusion based on the discussion, the research concludes that the precautionary principle‘s implementation in the use of gmos in indonesia is realized in the regulations for the food, feed, and agriculture sectors. the regulations of kkhprg are presidential regulation no. 39 of 2010 on the commission for the biosafety of genetically engineered products and the standardization of food labeling of genetically engineered food products based on government regulation no. 69 of 1996 concerning food labels and advertising. a comparison of the implementation of the precautionary principle on the use of gmos according to the environmental law and the job creation law can be seen in the amdal arrangement as the implementation of the precautionary principle. in the environmental law, the implementation of precautionary principle prioritizes the importance of a risk‘s impact before the activity is carried out. whereas in the job creation law, the operation of an activity adjusts the level of risk, namely low, medium, and high. this means that in the job creation law, it is possible for business activities that already utilize gmos to be operationalized if the risk is assessed as low because there is a transition between the risk approach in the environmental law and the licensing approach in the job creation law. all in all, this article suggests the following points: (1) regarding the usage of gmos, the government should find precautionary implementations that are more specific than regulations and labels, since regulations alone are too abstract to comprehend in a society; (2) environmental ngo institutions and the government should coordinate to ensure business actors do not abuse the job creation law‘s interpretation as their defense on harming the environment; and (3) environmental ngo institutions should act as a communicator between the government and community related to gmos usage towards the environment. 49 constitutional court, decision of the constitutional court of the republic of indonesia no.91/puu-xviii/2020, para [3.20.3], 413. 50 dodi haryono, ―metode tafsir putusan mahkamah konstitusi dalam 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decision of constitutional court no. 91/puu-xviii/2020 (formal examination of law no. 11 of 2020 concerning job creation) other document bps-statistics indonesia. ―the indonesia population census 2020 highlights. (united nations expert group meeting, 9-12 february 2021.‖ center of ecogenetics and environmental health. ―fast fact about genetically modified organisms.‖ watson, ronald, and victor preedy. ―genetically modified food: production, safety, regulation and public health. genetically modified organisms in food: production, safety, regulation and public health.‖ e-issn 2549-0680 vol. 5, no. 2, july 2021, pp. 138-152 doi: https://doi.org/10.24843/ujlc.2021.v05.i02.p03 this is an open access article, distributed under the terms of the creative commons attribution licence (http://creativecommons.org/licenses/by/4.0/), 138 protection of migrant workers in suriname: how do indonesian representatives implement international labour organization conventions? lutecia zahra maharani wibisono* faculty of law, universitas pembangunan nasional veteran, jakarta, indonesia diani sadiawati** faculty of law, universitas pembangunan nasional veteran, jakarta, indonesia abstract in june 2020, sixteen indonesian migrant workers (imw) who worked as fishing boat crew in a surinamese company fled to the indonesian embassy in paramaribo, suriname to acquire protection and assistance. they revealed that the company had failed to uphold their rights, committed inhuman treatment, and resulted in numerous losses. the embassy then immediately exercised a consular function to protect their safety and tried to facilitate the demands of those sailors to relevant parties and local authorities. the article aims to analyze the role of indonesian representatives to protect the rights of indonesian migrant workers in suriname based on the international labour (ilo) conventions. it is juridical empirical research that was conducted through visiting and field research to the indonesian embassy in suriname in november 2020. the research suggested that indonesian representatives in suriname have played a significant role in advocating the imw rights through all possible means, including mediation, negotiation, and diplomatic channels. in addition, there is a need to create a memorandum of understanding between indonesia and suriname to ensuring proper protection for migrant workers. keywords: protection; migrant worker; suriname; indonesian representatives, international labour organizations conventions. 1. introduction 1.1. background suriname is the country where around 700 indonesian migrant workers (imw) are working, reflecting the highest number of imw in the south america region. there is not much information available to the public about how their situation there. when this research was conducted, it can be revealed that some of imw had unpleasant experienced when working in some companies in suriname including got financial losses and psychological disorders and even attempted to commit suicide. 1 this article highlights a case that occurred in 2020 when 16 indonesian fishing boat crew (fbc) ran away from a company, initialized ** email/corresponding author: luteciawibisono@upnvj.ac.id ** email : diani@bappenas.go.id 1 michael bastian supit, head of protocol & consular, indonesia embassy in paramaribo-suriname, “protection of migrant workers in suriname: how do indonesian representatives implement ilo conventions?” interview by lutecia wibisono in paramaribo-suriname, december 18, 2020. mailto:luteciawibisono@upnvj.ac.id mailto:diani@bappenas.go.id protection of migrant workers in suriname: how do indonesian representatives implement international labour o rganization conventions? lutecia zahra maharani wibisono and diani sadiawati 139 cf.2 those sailors argued that the company had failed to uphold their rights, committed inhuman treatment, and resulted in numerous losses. therefore, they demanded the cf to pay their salary and fulfill their rights. the indonesian embassy in paramaribo, suriname immediately exercised a consular function by taking appropriate action, including brought the case to the attention of the surinamese government to jointly resolve the case.3 it is a general practice that indonesian representatives abroad request imw to make a report on their travel documents (e.g passports), personal data, and employment contracts. this is conducted to provide protection and to avoid risks of imw in the country where they are employed. it is also a procedural standard that imw protection is given from the recruitment process until the return to indonesia. since the beginning, imw is encouraged to complete the basic and required documents to prevent possible risks when they arrive and work in designated countries.4 what occurred in the present case is that the 16 seamen who work at cf did not report themselves to the indonesian embassy in paramaribo, suriname. besides, the agent (pjtki) and indonesian migrant workers placement (p3mi), formerly known as the indonesian migrant worker placement and service centre (bp2tki), did not contact the embassy and provide an official report of their seafarers working in suriname. this leads to the lack of ability of the embassy to monitor the presence of those imw in suriname. whatsoever, when imw face s a problem abroad, the indonesian government, through its official representatives, has a responsi bility to take action.5 the authority of the indonesian embassy is limited by international law and the jurisdiction of the receiving state, that in this case, the suriname government. the indonesian national law that guarantees the rights of imws cannot be directly applied in suriname, because suriname has established its national law to be effectively enforced in its territory . therefore, the next issue is on how the indonesian embassy applies international law, especially relevant treaties, to dealing with the case in concern. considering international labour organization (ilo) is an international organization that deals with the issue of migrant workers, the rights and protections of 16 imw, in this case, may be analyzed by looking at relevant ilo conventions. ilo is a united nations agency that brings together governments, employers, and workers of 187 member states, aims to set labour standards, develop policies and devise programs promoting 2 name of the company initialized in honor to protect and respect their reputation. 3 supit, loc.cit. 4 see deny tri wahyudi, "perlindungan hukum terhadap tenaga kerja indonesia di luar negeri”, jurnal ilmu hukum, (2015): 170-184. doi: https://doi.org/10.30996/mk.v0i0.2118 5 see koesrianti. “perlindungan hukum pekerja migran plrt di luar negeri oleh negara ditinjau dari konsep tanggung jawab negara”, yustitia 4, no. 2 (2015): 247-288. https://doi.org/10.30996/mk.v0i0.2118 udayana journal of law and culture vol. 5 no. 2, jul y 2021 140 decent work for all women and men. the ilo has a mission to investigate, promote, or support the creation of chances for migrant workers or employees who work abroad to acquire decent work for their rights in a free, fair, and secure manner. in this sense, the ilo convention aims to improve employees' rights at work, increase social protection, and strengthen discourse to address issues relating to the world of workers.6 the ilo works to forge policies to maximize the benefits of labour migration for all those involved.7 both indonesia and suriname are a member of the ilo. one side, indonesia is a member of ilo since 12 may 1950 and until the present has ratified 20 ilo conventions,8 while suriname has become an ilo member since 24 february 1976 and currently has ratified 33 ilo conventions along with 1 protocol.9 the ilo's policy on active partnerships has the objective of unifying the ilo with tripartite elements in member countries and continuously improving the technical services program. special assistance is provided to workers within the framework of an active partnership policy. the priority of the active partnership is the provision of technical assistance and advice in the application of international labor standards, in particular the ilo basic conventions on human rights.10 1.2. research problem in general, this article aims to analyze the role of the indonesian embassy in paramaribo, suriname to protect the rights of indonesian migrant workers based on the international labour organisation (ilo) conventions. in specific, this research article formulates 3 (three questions). first, how is the detail of the case involving the 16 indonesian fishing boat crew who fled from the company they worked? second, how is the function of indonesian representatives to protect indonesian migrant workers in suriname? lastly, how ilo conventions may be used as a legal instrument to advocate the rights of those indonesian fishermen? 6 international labour organization “ilo global” http://www.ilo.org/global/what_we_do/publications/lang--en/contlang--id/docname wcms_098256 / index.htm. 7 international labour organization, “labour migration”, https://www.ilo.org/global/topics/labour-migration/lang--en/index.htm 8 international labour organization, normlex, ratification by country, “ra tifications for indonesia”. https://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::no:11200:p11200_country_id :102938 9 international labour organization, normlex, ratification by country, “ratifications for suriname”. https://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::no:11200:p11200_country_id :103287 10 international labour organization, “what we do” http://www.ilo.org/global/what_we_do/publications/lang--en/contlang--id/docname wcms_098256 / index.htm http://www.ilo.org/global/what_we_do/publications/lang--en/contlang--id/docname%20wcms_098256%20/%20index.htm http://www.ilo.org/global/what_we_do/publications/lang--en/contlang--id/docname%20wcms_098256%20/%20index.htm https://www.ilo.org/global/topics/labour-migration/lang--en/index.htm https://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::no:11200:p11200_country_id:102938 https://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::no:11200:p11200_country_id:102938 https://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::no:11200:p11200_country_id:103287 https://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::no:11200:p11200_country_id:103287 http://www.ilo.org/global/what_we_do/publications/lang--en/contlang--id/docname%20wcms_098256%20/%20index.htm http://www.ilo.org/global/what_we_do/publications/lang--en/contlang--id/docname%20wcms_098256%20/%20index.htm protection of migrant workers in suriname: how do indonesian representatives implement international labour o rganization conventions? lutecia zahra maharani wibisono and diani sadiawati 141 1.3. method this article is written based on juridical-empirical research. the primary data is collected from a visiting and field research to the indonesian embassy in paramaribo, suriname on 6 november 2020 that resulted in a set of documents and reports as well as information obtained from an interview. secondary data consists of primary legal sources in form of treaties and national law and regulations as well as additional sources in form of textbooks, journal articles, newspapers, and online sources. 1.4. conceptual framework this paper is conceived to identify the legal protection of indonesian migrant workers, the role of indonesian representatives in protecting migrant workers, and more specific, the role of the international labor organization (ilo) in protecting indonesian migrant workers it is necessary to have a protection that can overcome existing problems related to the placement and protection of imw before leaving, during work, or after returning to indonesia.11 the right to work is part of human rights and therefore state is encouraged to play an active role in protecting its citizens’ rights.12 legal protection is all efforts to fulfill rights and provide assistance to provide a sense of security to witnesses and/or victims.13 this legal protection is essential for imw who work overseas due to the lack of job opportunities in indonesia. in specific, the indonesian government should provide protection and assistance to ensure fair wages as well as equal and non-abusive treatments, are given to imw by the company where they work. to achieve that aim, three strategies could be used to protect migrant workers, namely: (1) prevention, (2) early detention, (3) immediate response. these strategies may also be used by indonesian representatives to always be ready in facilitating the fulfillment of imw’s rights. in the placement period, the protection may include a. guidance and supervision; b. assistance and consular protection; c. the provision of legal aid; d. the advocating on the fulfillment of the rights of mi grant workers; e. protection and other assistance in accordance with the provisions of the legislation as well as international law and practice; and f. diplomatic efforts.14 as can be observed in the fields, the indonesian representatives give an immediate 11 a.a. titah ratihtiari and i wayan parsa, "perlindungan hukum terhadap pekerja migran indonesia di luar negeri". kertha semaya 7, no. 7 (2019) : 4. doi: https://ojs.unud.ac.id/index.php/kerthasemaya/article/view/50129/29846 12 see the 1945 constitution of the republic of indonesia, art. 28d paragraph (2). see also lukas banu, “implementasi hukum pasal 35 uu no. 39 tahun 2004 dalam program recognized seasonal employment”, jurnal magister hukum udayana 7, no. 1 (2018): 92 doi: https://doi.org/10.24843/jmhu.2018.v07.i01.p08. 13 soerjono soekanto, pengantar penelitian hukum (jakarta: ui press, 1984): 133. 14 henni wijayanti and arovah windiani. “legal protection and advocacy for indonesian migrant workers”, jurnal universitas muhammadiyah 1, no. 1 (2017): 1005 doi: https://jurnal.umj.ac.id/index.php/imc/article/view/1300/1171 https://ojs.unud.ac.id/index.php/kerthasemaya/article/view/50129/29846 https://doi.org/10.24843/jmhu.2018.v07.i01.p08 https://jurnal.umj.ac.id/index.php/imc/article/view/1300/1171 udayana journal of law and culture vol. 5 no. 2, jul y 2021 142 response in case imw has trouble with the company, in particular with regards to an employment relationship, due to various factors. at the international level, ilo conventions were established to promote and ensure the fulfillment of the rights of migrant workers. ilo also works with governments in various countries to campaign the importance of ratifying the international convention on the protection of the rights of all migrant workers and members of their families.15 ilo supported the indonesian government to develop and strengthen policies and plans for imw.16 2. result and analysis 2.1. the flee of indonesian migrant w orkers on 3 june 2020, sixteen (16) imw who worked as fbc in a foreign company fled to the indonesian embassy to acquire protection and assistance. they were received by the ambassador and the head of consular affairs and were heard about their problems with cf, an initial of the company where they work.17 data regarding the name, employment agent, amount of salary, job division, and duration of work are listed in table 1. table 1 list of seamen18 no name initial agent amount of salary per month (in usd) position/job divison duration of work (month) 1 a. w bpm 600.00 oiler 4 2 a. a bpm 450.00 deck 4 3 n. r bpm 600.00 oiler 4 4 y. a. w bpm 450.00 deck 4 5 a. h gsjst 600.00 oiler 13 6 a. w gsjst 600.00 oiler 13 15 office of the united nations high commissioner for human rights, “ status of ratification interactive dashboard,” international convention on the protection of the rights of all migrant workers and members of their families, https://indicators.ohchr.org/ 16 cici valensy, “peran international labor organization (ilo) dalam melindungi buruh migran indonesia di arab saudi tahun 2012-2016, jurnal online mahasiswa fisip 4 no. 2, (2017): 6. doi: https://jom.unri.ac.id/index.php/jomfsip/article/view/16335/15800 17 data obtained from the indonesian embassy in paramaribo, suriname on december 18, 2020 18 supit, loc.cit. the name of the sixteen indonesian migrant workers and the name of agent were initialized in honor to protect and respect their dignity and reputation. https://indicators.ohchr.org/ https://jom.unri.ac.id/index.php/jomfsip/article/view/16335/15800 protection of migrant workers in suriname: how do indonesian representatives implement international labour o rganization conventions? lutecia zahra maharani wibisono and diani sadiawati 143 7 h. b gsjst 550.00 trainee captain 7 8 h gsjst 350.00 deck 9 9 i. s gsjst 450.00 deck 13 10 m gsjst 450.00 security 7 11 m. a. s gsjst 800.00 mechanic 10 12 n gsjst 500.00 wielder 8 13 sf gsjst 600.00 oiler 5 14 st gsjst 450.00 deck 15 15 sg gsjst 450.00 deck 9 16 sy gsjst 450.00 deck 13 based on data provided in table 1, there are two agents, initialized bpm and gsjst. the salary is varied, de pends on job division that is related to skill and responsi bility, duration of works, and other considerations by the company. in 2018 there was a relatively similar case to the present case. an imw initialized s.s reported that he was badly treated, tortured, and faced excessive human mistreatment by r.r until he lost part of his mind and experienced trauma. besides, there were marks of beating on his body which confirmed the fact. when s.s was not on work schedule, he was forced to work at r.r’s house by doing the type of job that was unmentioned in the contract.19 suriname was in "code red" because of the covid-19 outbreak when the 16 fbc run away to the indonesian embassy. 20 from 4 until 12 june 2020, the suriname government imposed a total lockdown that caused panic buying in the community that entails an obstacle to getting logistics. this has an impact on the embassy's ability to provide service and protection to those fbc.21 the embassy then rented property as a temporary shelter to accommodate the m.22 according to the data obtained by the embassy, imw that worked for the cf has been placed since 2015, probably even earlier, and there have been still many cases until 2020. several employees were detained and compelled to work in the plantation sector since they could not return to their hometowns. there was also a case where some fbc have been accused 19 ibid. 20 for migrant fish workers, covid-19 has added another layer of vulnerabilities their working and living conditions render them vulnerable to transmission of the virus. see melissa marschke, et.al, “covid-19, instability and migrant fish workers in asia,” maritime studies 20 (2021): 87. 21 supit, loc.cit. 22 ibid. udayana journal of law and culture vol. 5 no. 2, jul y 2021 144 by cf of causing damage to the company's ships and equipment , although, there was no evidence to back up these claims. cf then decided on pay deduction as a form of compensation. the fbc has declared their notification and reasons before leaving the company, but they were ignored.23 2.2. function of indonesian representatives on protection of indonesian migrant w orker indonesian embassy in paramaribo, suriname is concurrently accredited to the co-operative republic of guyana and the caribbean community.24 during the covid-19 pandemic, the embassy facilitated the repatriation of imw from suriname and guyana to indonesia.25 as mentioned in section 2.1, when 16 fbc fled from cf to the indonesian embassy in june 2020, the indonesian ambassador and the embassy's head of consular affairs greeted them. these 16 fbcs left the cf because they were mistreated and their rights were not respected and fulfilled by the company. they refused to return to cf, fearing that they would be tormented by the owner or management of the company. therefore, they requested assistance from the embassy to facilitate the return of their passports, the payment of wages, and the return to indonesia.26 it can be assessed that the indonesian representative in paramaribo, suriname has complied with the vienna convention on consular relations 196327 in exercising its consular function when handling the case, especially in protecting, helping, and assisting its national in the receiving state.28 in terms of the basic needs of the 16 fbcs, the embassy regularly monitors the health condition of the fbc and provides logistics. in facilitating the problem solving, the embassy has tried to negotiate with cf, but the company was not cooperative. the embassy was informed that the company management cannot meet directly with the representative of the indonesian embassy due to the pandemic situation. the embassy is still working to obtain the travel documents and remaining salary. in doing so, the embassy has sent notes to the ministry of labor and the ministry of foreign affairs of suriname (mofa) to inform about the case between 16 indonesian fbcs and cf. the embassy has done its utmost to solve the problem t hrough all possible means, including mediation, negotiation, diplomatic channels. considering the complexity of the cases faced by them, the embassy decided to hire a lawyer who knows the national law of suriname. but, as far as the 23 ibid. 24 the embassy of the republic of indonesia, paramaribo, the republic of suriname, https://kemlu.go.id/paramaribo/en 25 the embassy of the republic of indonesia, paramaribo, the republic of suriname, kbri paramaribo bantu repatriasi 60 wni dari suriname dan guyana kembali ke indonesia, 10 june 2021, https://kemlu.go.id/paramaribo/en/news/13752/kbri paramaribo-bantu-repatriasi-60-wni-dari-suriname-dan-guyana-kembali-ke-indonesia 26 ibid. 27 the convention has been ratified by indonesia through law no. 1 year 1982. 28 see vienna convention on consular relations 1963, arts. 5a, 5e, and 5l. https://kemlu.go.id/paramaribo/en https://kemlu.go.id/paramaribo/en/news/13752/kbri-paramaribo-bantu-repatriasi-60-wni-dari-suriname-dan-guyana-kembali-ke-indonesia https://kemlu.go.id/paramaribo/en/news/13752/kbri-paramaribo-bantu-repatriasi-60-wni-dari-suriname-dan-guyana-kembali-ke-indonesia protection of migrant workers in suriname: how do indonesian representatives implement international labour o rganization conventions? lutecia zahra maharani wibisono and diani sadiawati 145 authors’ knowledge, the case was not submitted before the suriname court.29 the case has not been resolved yet, but both indonesian embassy and the 16 fbcs were in constraint to continue to stay in a shelter. the lack of money is the factor that leads the choice to return to indonesia. to replace their passports that are still being held by cf, on october 6, 2020 the embassy issued a temporary travel document called surat perjalanan laksana paspor (splp) or a travel document in lieu of a passport to the 16 fbcs to be used as a legitimate document to leave suriname to indonesia.30 despite the decision of the 16 indonesian fbcs to leave suriname, the mofa has taken action in response to the indonesian embassy's report by forwarding it to the police and labor inspectors to be initiated for an investigation. based on a meeting between the indonesian ambassador and the permanent secretary for administrative and consular affairs on december 9, 2020, the suriname government indicated an intention to cooperate in handling the case. the indonesian embassy has also proposed a ‘blacklisting’ to cf. it filed a report to the indonesian ministry of foreign affairs, requesting bp2mi (the national board for the placement and protection of indonesian migrant workers) and pjtki agents no longer send imw to work for cf.31 cf act to hold the fbc’s travel documents,32 non-payment of salaries, arbitrary reduction of agreed wage rates,33 and beatings34 are violated international law and national laws of both indonesia and suriname. from a normative sense, cf may be imposed sanctions according to the protocol of 2014 (p029), in force in suriname since 3 june 2019 together with the additional guidance provided by r203 forced labor (supplementary measures) recommendation 2014 adds considerably more detail concerni ng access to remedies in cases of forced labor. the p029 refers to both compensation for victims and effective sanctions as follows: “in giving effect to its obligations under the convention so suppress forced or compulsory labor, each member shall take effective measures to prevent and eliminate its use, to provide to victims of protection and access to appropriate and effective 29 as a comparative view, there was a case in 2018 before republic of ireland’s high court where some of the migrant fishermen were believed to have been trafficked and worked under harsh conditions, including being racially abused, underpaid and overworked. see international organisation for migration, world migration report 2020, geneva, 2019, 95. 30 supit, loc.cit. 31 ibid. 32 see ilo seafarers' identity document convention (1958) no. 108, art 3. 33 see protection of wages convention (1949) no. 95, art, 8. 34 see constitution of the republic of suriname; bulletin of acts and decrees 1987 no. 166, art. 15 and 9, also ilo forced labor convention (1930) no. 29 art. 2. udayana journal of law and culture vol. 5 no. 2, jul y 2021 146 remedies, such as compensation, and to sanction the perpetrators of forced and compulsory labor”. 35 this is supplemented by further guidance in r203 relating to access to remedies that requested all to take measures in ensuring all victims of forced or compulsory labor have access to justice and other appropriate and effective remedies, such as compensation for personal and materi al damages.36 in addition, r203 urges member states to strengthen the enforcement of national laws and regulations by giving mandate, resource, and training to the relevant authorities, providing for the imposition of additional sanctions to complement criminal sanctions and guaranteeing the liability of legal persons that committed forced or compulsory labor.37 the above articles did not explain examples of any clear attempts by states parties to regulate business activities extraterritorially. however, some countries have extended the geographical scope of criminal law to cover trafficking offenses committed by their nationals extraterritorially (e.g., united kingdom).38 this could be a reference for the indonesian and suriname governments in resolving issue s related to human rights abuses in a business context, particularly to vulnerable migrant workers. the embassy uses ilo conventions as the basis for bilateral agreements and knows that there is no memorandum of understanding (mou) on the placement and protection of migrant workers. with this convention, migrant workers certainly need not be afraid when their rights at work are threatened, especially if both countries have ratified it, so there are clear rules in the law to protect their rights. neverthele ss, it is not easy to do so, because there is no proper bilateral agreement to ease the settlement of the case. the importance of the mou is to establish a monitoring system in which resettlement issues can be better resolved and to prevent migrant workers from becoming victims of any form of injustice. with the stipulation of new provisions as outlined in law of the republic of indonesia on no. 11 of 2020 concerning job creation,39 the indonesian government has generally designed changes that aim to facili tate the establishment of a company for placement of indonesian migrant workers (p3mi), remembering their position is very crucial in preventing migrant workers from leaving illegally/non-procedural. lack of education to the workers and pressure from economic factors makes it easy for them to be tempted by the offers made by placement companies. currently, many 35 international labour organization, normlex, ratifications of p029 protocol of 2014 to the forced labour convention, 1930, art.1 (1). 36 see r203 – forced labor (supplementary measures) recommendation 2014, art. 12 37 ibid., art. 13. 38 unhcr web, “business and human rights: enhancing accountability and access to remedy”. the most recent ceacr comments on implementation of c029 by the united kingdom notes that this has been done as part of a series of measures to implement the eu directive on human trafficking, retrieved from https://www.ohchr.org/documents/issues/business/domesticlawremedies/preliminaryi lotreaties.pdf accessed on july 2021. 39 see law of the republic of indonesia on no. 11 of 2020 concerning job creation, art. 57. https://www.ohchr.org/documents/issues/business/domesticlawremedies/preliminaryilotreaties.pdf https://www.ohchr.org/documents/issues/business/domesticlawremedies/preliminaryilotreaties.pdf protection of migrant workers in suriname: how do indonesian representatives implement international labour o rganization conventions? lutecia zahra maharani wibisono and diani sadiawati 147 placement companies carry out large -scale recruitment but only prioritize economic goals without paying attention to the procedures and interests of migrant workers. the indonesian government has stipulated regulations to protect crew members to encourage industry players to be certified through the ministry of maritime and fisheries affairs regulation no.2 of 2017 concerning requirements and mechanisms human rights certification for fisheries. this regulation complemented the previous ministry of maritime and fisheries affairs regulation no.42 of 2016 concerning marine work agreements for fishing boat crew.40 suriname and indonesia's ratification of the ilo conventions and the enactment of national regulations seem to become a wonderful law on the text that protects the rights of workers. one of the recent indonesian legislative products covers the protection of worker's rights to wages, the obligation of employers to provide wages, and the minimum standard of wages.41 the law of suriname also stipulates the issue of wages, working hours, labor conditions, and special categories of workers, special protection for those engaged in work that requires special effort or who work in unsanitary or hazardous conditions.42 yet there is still much violation of their rights on the ground. the unequal working relationship between employees and employers is obvious. the lack of knowledge and skill43 made workers rely too much on their employers. the numerous examples of violation of imw rights, in particular the present case, demonstrate the incapability of the government has failed to provide complete security and safety, since the recruitment process. this should serve as a lesson learned to the community and migrant workers about the necessity of self-awareness and preparation prior to working overseas. 2.3. international labour organization conventions perspective fbcs are among the most exploited labor force compared to other sectors of migrants. they are often forced to work very long hours and are paid very cheaply under intense and hazardous working conditions. the profession of fbcs is vulnerable to be exploited.44 their sheer physical 40 tri sulistiyono, et. al. “indonesian manpower agency’s responsibility in fisheries sector for the protection of indonesian migrant workers in taiwan, “international journal of business, economics and law 23, no. 1 (2020): 148. 41 referring to article 81 (25) of law no. 11 of 2020 on job creation regulates about: 42 the constitution of the republic of suriname, art. 29. 43 a report revealed that the vanishing fish stocks in territorial seas is a factor why traditional fishermen who have no professional fishing skills become migrant workers. see organisation for migration, indonesian ministry of marine affairs and fisheries and coventry university (2016) report on human trafficking, forced labour and fisheries crime in the indonesian fishing industry. jakarta, indonesia, 23. 44 kompas news web, “eksploitasi pekerja di sektor perikanan bukan hal baru di indonesia” retrieved from, https://www.kompas.com/sains/read/2020/05/10/193000323/eksploitasi-pekerja-disektor-perikanan-bukan-hal-baru-di-indonesia. accessed on february 2021 https://www.kompas.com/sains/read/2020/05/10/193000323/eksploitasi-pekerja-di-sektor-perikanan-bukan-hal-baru-di-indonesia https://www.kompas.com/sains/read/2020/05/10/193000323/eksploitasi-pekerja-di-sektor-perikanan-bukan-hal-baru-di-indonesia udayana journal of law and culture vol. 5 no. 2, jul y 2021 148 isolation is a factor that contributes to this vulnerability as fishermen are cut off from their fellow citizens, have no access to lawyers, and were not given the most basic medical treatment when working onboard ships. 45 the ilo work in fishing convention no. 188 of 2007 primarily regulates fbc protection standards. it governs several aspects of the workforce in the maritime industry, including those who work as fbcs, the responsibilities of fishing boat owners, skippers, and ship crews. it also recognizes the rights of member states to provide protection and exercise law enforcement in the event of a violation of the rights that fbcs should receive while working on fishing boats. regarding wages, this convention obliged the member states to adopt laws, regulations, or other measures providing those fishers who are paid a wage are ensured a monthly or other regular payment. 46 further, annex ii of the ilo convention 188/2007 states that: “the fisher’s work agreement shall contain the following particulars, except in so far as the inclusion of one or more of them is rendered unnecessary by the fact that the matter is regulated in another manner by national laws or regulations, or a collective bargaining agreement where applicable: (i) the amount of wages, or the amount of share and the method of calculating such share if remuneration is to be on a share basis, or the amount of the wage and share and the method of calculating the latter if remuneration is to be on a combined basis, and any agreed minimum wage”. the cf did not give a copy of the employment contract to 16 fbcs. it is an infringement of the principles of law on contracts based on international private law. ministry of manpower should overlook agreements between cf and fbcs. the relationship between employers and imw shall be based on a work agreement that has elements of work, wages, and orders. the contract should also be transparent and are communicated by the government, fbc, and the company.47 regarding the fbcs document that was held by cf, it violated the provisions in the ilo seafarers' identity document convention 1958 no. 108. the convention regulates that seafarers' identity documents will remain in the hands of seafarers at all times.48 the deduction of salary by cf was also not compatible with the protection of wages convention 1949 no. 95 that stipulate s “no deductions shall be permitted only under the conditions and to the extent prescribed regulations or fixed by collective agreement or arbitration award”.49 having in mind that the deduction was not fair and transparent, considering that all human beings have the right to pursue their material well -being in 45 chris armstrong, abuse , exploitation, and floating jurisdiction: protecting workers at sea*, the journal of political philosophy 0 no. 0 (2020): 2 46 ilo work in fishing convention (2007), no. 188, art. 23. 47 see also law of the republic of indonesia no.18 of 2017 concerning protection of indonesian migrant workers, arts. 14 and 15 48 ilo seafarers' identity document convention (1958) no. 108, art, 3. 49 ilo protection of wages convention (1949) no. 95, art. 8. protection of migrant workers in suriname: how do indonesian representatives implement international labour o rganization conventions? lutecia zahra maharani wibisono and diani sadiawati 149 dignity, economic security, and equal opportunity, therefore any unlawful act of deduction of the seamen’s wages constitute a violation enunciated by the universal declaration of human rights 1948.50 fbc notified the ir reasons for contract termination when they left cf, as required by article 1615o (sbw), 51 which states that “the other party immediately communicated the reason for termination.” therefore cf is not accountable for seeking compensation from them. according to 1615q (sbw)52, the fbcs may reasonably not anticipate their job to be prolonged due to urgent reasons/grounds or serious misconduct, and their act of decamping, which can be regarded as a ground of justification, cannot be blamed for the attribution of their act. it is a constitutional guarantee in suriname that everyone has a right to physical, mental, and moral integrity. the constitution of the republic of suriname also ensures no one may be subjected to torture, degrading, or inhumane.53 the abusive and unlawful acts by cf in the territory of suriname violated the constitution of the republic of suriname ,54 as well as the ilo private employment agencies convention 1997 no. 181, 55 in relation to freedom of association, minimum wages, working time, and other working conditions, access to training, occupational safety and health and protection of workers claims as mentioned in the provision. it may also be referred to the ilo forced labor convention, 1930, no. 29 that defines forced or compulsory labor as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”56 and the abolition of forced labor convention 1957 no. 105 that urges the states to undertake to suppress and not to make use of any form of forced or compulsory labor. 57 lastly, the failure of the owner of cf to provide decent work and living conditions onboard is also incompatible with convention no. 188/2007. 58 3. conclusion workers are frequently subjected to abuse because they are perceived as lacking in work abilities; this is due to a lack of preparation before traveling abroad. it is important to provide information and instruction about the fundamentals of knowledge prior to working abroad. it is expected that in case of a breach of rights by the foreign company where the workers 50 see the universal declaration of human rights (1948), art. 23. 51 see surinams burgerlijk wetboek, art. 1615o. 52 ibid., art. 1615q. 53 see constitution of the republic of suriname; bulletin of acts and decrees 1987 no. 166, arts. 9 and 15. 54 ibid., arts. 9, 15, and 29. 55 see private employment agencies convention (1997) no. 181, art 11. 56 see ilo forced labor convention (1930) no. 29, art. 2.1. 57 ilo abolition of forced labor convention (1957) no. 105, art. 1. 58 ilo work in fishing convention (2007), no. 188, art. 11. udayana journal of law and culture vol. 5 no. 2, jul y 2021 150 are employed, they will have a proper understanding of the procedure to defend their rights and get what they deserved to get. with regards to the case of 16 imw who worked at a company in suriname, the company is strongly alleged to breaching the employment contracts and violating law and regulations of the republic of suriname as well as many international treaties, particularly the international labour organization (ilo) conventions. indonesian representatives in paramaribo, suriname have conducted some efforts to facilitate and assist the advocation of their rights through all possible means, including mediation, negotiation, and diplomatic channels, but the results seems not to be succeded yet. to prevent asimilar case in the future, indonesia and suriname should create a memorandum of understanding (mou) on the protection of migrant workers. the mou shall comply with ilo conventions that are ratified by the two states and other relevant international treaties that cover the protection of the rights of the migrant workers. bibliography book soekanto, soerjono. pengantar penelitian hukum. jakarta: ui press, 1984 journal article armstrong, chris. “abuse, exploitation, and floating jurisdiction: protecting workers at sea*, the journal of political philosophy 0 no. 0 (2020): 1-23. doi: https://doi.org/10.1111/jopp.12238 banu, lukas. 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"perlindungan hukum terhadap tenaga kerja indonesia di luar negeri”, jurnal ilmu hukum, (2015): 170-184. doi: https://doi.org/10.30996/mk.v0i0.2118 wijayanti, henni and arovah windiani. “legal protection and advocacy for indonesian migrant workers”, jurnal universitas muhammadiyah 1, no. 1 (2017): 1005. doi: https://jurnal.umj.ac.id/index.php/imc/article/view/1300/1171 legal documents indonesia, the 1945 constitution of the republic of indonesia . indonesia, law no.18 of 2017 concerning protection of indonesian migrant workers. indonesia, law no. 11 of 2020 concerning job creation. indonesia, ministry of maritime and fisheries affairs regulation no.2 of 2017 concerning requirements and mechanisms human rights certification for fisheries. indonesia, ministry of maritime and fisheries affairs regulation no.42 of 2016 concerning marine work agreements for fishing boat crew . suriname, constitution of the republic of suriname; bulletin of acts and decrees 1987 no. 166. suriname, surinams burgerlijk wetboek. international convention on the protection of the rights of all migrant workers and members of their families. international labour organization, forced labor convention 1930, no. 29 international labour organization, seafarers' identity document convention 1958, no. 108. international labour organization, protection of wages convention 1949, no. 95. international labour organization, forced labor (supplementary measures) recommendation 2014. international labour organization, work in fishing convention 2007, no. 188. international labour organization, abolition of forced labor convention 1957, no. 105. vienna convention on consular relations, 1963. vienna convention on the law of treaties, 1969. universal declaration of human rights, 1948. other document organisation for migration, indonesian ministry of marine affairs and fisheries and coventry university (2016) report on human trafficking, forced labour and fisheries crime in the indonesian fishing industry. jakarta, indonesia international organisation for migration, world migration report 2020, geneva, 2019. https://doi.org/10.30996/mk.v0i0.2118 https://jurnal.umj.ac.id/index.php/imc/article/view/1300/1171 udayana journal of law and culture vol. 5 no. 2, jul y 2021 152 interview supit, michael bastian. head of protocol & consular, indonesia embassy in paramaribo-suriname. “protection of migrant workers in suriname: how do indonesian representatives implement ilo conventions?” interview by lutecia wibisono, suriname, december 18, 2020. website content international labour organization, normlex, ratifications of p029 protocol of 2014 to the forced labour convention, 1930, https://www.ilo.org/dyn/normlex/en/f?p=normlexpub:11300:0:: no:11300:p11300_instrument_id:3174672:no accessed on 29 june 2021. kompas news web, “eksploitasi pekerja di sektor perikanan bukan hal baru di indonesia”. https://www.kompas.com/sains/read/2020/05/10/193000323/eks 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country, “ratifications for suriname”. https://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::no:11200: p11200_country_id:103287 the sbmi official web, “ilo conventions that have been ratified by the government of indonesia” http://sbmi.or.id/2018/05/konvensi-iloyang-telah-diratifikasi-oleh-pemerinah-indonesia/ unhcr web, “business and human rights: enhancing accountability and access to remedy”. the most recent ceacr comments on implementation of c029 by the united kingdom notes that this has been done as part of a series of measures to implement the eu directive on human trafficking. https://www.ohchr.org/documents/issues/business/domesticlaw remedies/preliminaryilotreaties.pdf https://www.ilo.org/dyn/normlex/en/f?p=normlexpub:11300:0::no:11300:p11300_instrument_id:3174672:no https://www.ilo.org/dyn/normlex/en/f?p=normlexpub:11300:0::no:11300:p11300_instrument_id:3174672:no https://www.kompas.com/sains/read/2020/05/10/193000323/eksploitasi-pekerja-di-sektor-perikanan-bukan-hal-baru-di-indonesia https://www.kompas.com/sains/read/2020/05/10/193000323/eksploitasi-pekerja-di-sektor-perikanan-bukan-hal-baru-di-indonesia https://indicators.ohchr.org/ http://www.ilo.org/global/what_we_do/publications/lang--en/contlang--id/docname%20wcms_098256%20/%20index.htm http://www.ilo.org/global/what_we_do/publications/lang--en/contlang--id/docname%20wcms_098256%20/%20index.htm https://www.ilo.org/global/topics/labour-migration/lang--en/index.htm https://www.ilo.org/global/topics/labour-migration/lang--en/index.htm http://www.ilo.org/global/what_we_do/publications/lang--en/contlang--id/docname%20wcms_098256%20/index.htm http://www.ilo.org/global/what_we_do/publications/lang--en/contlang--id/docname%20wcms_098256%20/index.htm https://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::no:11200:p11200_country_id:102938 https://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::no:11200:p11200_country_id:102938 https://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::no:11200:p11200_country_id:103287 https://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::no:11200:p11200_country_id:103287 http://sbmi.or.id/2018/05/konvensi-ilo-yang-telah-diratifikasi-oleh-pemerinah-indonesia/ http://sbmi.or.id/2018/05/konvensi-ilo-yang-telah-diratifikasi-oleh-pemerinah-indonesia/ https://www.ohchr.org/documents/issues/business/domesticlawremedies/preliminaryilotreaties.pdf https://www.ohchr.org/documents/issues/business/domesticlawremedies/preliminaryilotreaties.pdf vol. 3, no. 2, july 2019, pp. 204-222 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3223 e-issn 2549-0680 204 has financial policy intervention benefited local society affected by natural disaster?: questioning the utilitarian approach ketut sukawati lanang putra perbawa* faculty of law, mahasaraswati university-bali, indonesia article received: 29th juni 2019; accepted: 27th july 2019; published: 31st july 2019 abstract mount agung eruptions have an impact on economic losses, especially the banking sector in bali. entrepreneurs and bank debtors, especially in karangasem regency and its surroundings, ask for relief from the implementation of the provisions of their credit agreements in terms of time, interest and also obligations performance. it is a legal research that focuses on analyzing the utilitarian approach used by the indonesian financial services authority (otoritas jasa keuangan/ojk) in the form of banking-relaxation policy in supporting the local society who affected by natural disaster. it has been concluded that local society who affected by the eruption of mount agung in karangasem regency bali may use ‘force majeure’ to suspend their obligation performance in any economic matters, including loan banking. in addressing this issue, ojk plays a role by issuing financial policy for the 3 years period that is expected to give a margin of appreciation for local society to re-arrange their economic situation after the disaster. such policy, seems has not properly been implemented by all banks in related area. therefore, a utilitarian approach that inspired the ojk financial relaxation policy should be improved by taking into consideration the concerns on cultural-economic issues, the real declining and uncertain situation of the local economy, and the fragile tourism industry in karangasem regency. keywords: natural disaster; financial service authority; financial relaxation policy; local society, utilitarian approach. how to cite (chicago 16th): putra perbawa, ketut sukawati lanang. "has financial policy intervention benefited local society affected by natural disaster?: questioning the utilitarian approach." udayana journal of law and culture 3, no. 2 (2019): 204-222. https://doi.org/10.24843/ujlc.2019.v03.i02.p05. doi: https://doi.org/10.24843/ujlc.2019.v03.i02.p05 * email/corresponding author: sukawatilanang@gmail.com https://doi.org/10.24843/ujlc.2019.v03.i02.p05 mailto:sukawatilanang@gmail.com has financial policy intervention benefited local society who affected by natural disaster?: questioning a utilitarian approach ketut sukawati lanang putra perbawa 205 1. introduction for the last three years, mount agung volcano eruptions have an impact on economic losses, especially the banking sector in bali. in 2017, the ratio of banking non-performing loan (npl) in the province of bali is 3,42 percent, higher than the national average npl which reached 2.59 percent. 1 in december 2017, the association of indonesian rural banks of bali released that 24 bank perkreditan rakyat/bpr (hereinafter referred to as rural banks) were affected by the eruption of mount agung, four of which were quite seriously affected because they had not temporarily operated. what they may offer to the affected debtors at that time was by conducting credit restructuring that includes correcting the value of obligations such as the basic, time period, and interest.2 in the beginning phase of the disaster at the end of the year of 2017, the government seemed merely focusing on providing emergency response assistance as there are many peoples left their home seeking safer shelters. it is quite obvious that there were relatively no programmatic economic incentives from the government. entrepreneurs and bank debtors, especially in karangasem regency and its surroundings, ask for relief from the implementation of their loan agreement provisions in terms of time, interest and also obligations performance. responding to the economic situation, the karangasem regency government officially requested the financial services authority to provide relaxation for banking customers who had difficulty to pay their loan because of the eruptions of mount agung. 3 furthermore, the regent of karangasem regency held a meeting with the financial services authority, the indonesian chamber of commerce of the bali province, the hotel and restaurant association, the bali cooperative office and the karangasem regency businessman to discuss the incapability of more than 71.000 karangasem residents, who left their home and lost their livelihood due to the eruption, to pay their banking loan. in that meeting, the regent of karangasem regency explicitly asked the indonesian financial services authority (otoritas jasa keuangan/ojk) that residents who live in an area around 8 to 10 km from the 1 nusabali.com. berita. kredit bermasalah di bali lampaui nasional. https://www.nusabali.com/berita/25259/kredit-bermasalah-di-bali-lampaui-nasional 2 wartaekonomi.co.id. kabar finansial. perbarindo harapkan dampak gunung agung tidak pengaruhi npl. https://www.wartaekonomi.co.id/read163744/perbarindo-harapkandampak-gunung-agung-tidak-pengaruhi-npl.html 3 bali.bisnis.com. bisnis bali dan nusra. karangasem resmi ajukan relaksasi kredit. https://bali.bisnis.com/read/20171106/538/772049/karangasem-resmi-ajukan-relaksasikredit https://www.nusabali.com/berita/25259/kredit-bermasalah-di-bali-lampaui-nasional https://www.wartaekonomi.co.id/read163744/perbarindo-harapkan-dampak-gunung-agung-tidak-pengaruhi-npl.html https://www.wartaekonomi.co.id/read163744/perbarindo-harapkan-dampak-gunung-agung-tidak-pengaruhi-npl.html about:blank about:blank about:blank udayana journal of law and culture vol. 3 no. 2, july 2019 206 summit of mount agung be free of principal and interest on loans and citizens who live outside those area only pay 50% of the interest.4 a specific banking sector policy was then issued following the impact of this natural disaster after indonesian ojk determined karangasem regency as an area that requires special treatment of bank loans for three years, starting december 29, 2017. 5 this policy was issued by referring to regulation of indonesian financial services authority no. 45/pojk.03/2017 on special treatment of credit or bank financing for certain areas in indonesia affected by natural disasters. this article focuses on analyzing the utilitarian approach used by ojk in the form of bankingfinancial relaxation policy in supporting the local society affected by natural disaster. the article cites many law and regulations, especially those issued by ojk. the analysis which is conducted based on a long observation by author who during the disaster period became an independent commissioner of a commercial bank in bali. this article is begun by discussing a basic legal notion on ‘force majeure’ (overmacht) that is generally associated with the common understanding of not imposing a strict performance of a contractual obligation under private laws in case of unforeseen and unexpected situation, in this case a natural disaster, that might have an impact to debtor. it continues with a general description of how ojk plays a role in addressing natural disaster. a specific analysis is then focused on the implementation of ojk policy in karangasem bali. this paper establishes an argument that the uniqueness of the economic situation in bali, that is very much influenced by the peculiarity of its social and cultural life of the local peoples, should be taken into consideration by relevant financial authorities in issuing a policy to address financial problems faced by those who affected by natural disasters. there have been some research done relating to the topics of the present paper. some studies discussed the risk-based capital ratio after the natural disaster of the independent banks in the area of disaster6 while some others focused on how banks adjust their asset structure in response to changes in 4 oke finance. economy. ojk diminta bebaskan bunga kredit bagi pengungsi gunung agung, https://economy.okezone.com/read/2017/12/26/320/1835879/ojk-dimintabebaskan-bunga-kredit-bagi-pengungsi-gunung-agung 5 hukumonline.com. berita. ojk tetapkan karangasem bali dalam perlakuan khusus soal kredit bankhttps://www.hukumonline.com/berita/baca/lt5a4c8d7c228b4/ojk-tetapkankarangasem-bali-dalam-perlakuan-khusus-soal-kredit-bank/ 6 ulrich schüwer, claudia lambert, felix noth, "how do banks react to catastrophic events? evidence from hurricane katrina." review of finance 23, no. 1 (2018): 75-116 https://economy.okezone.com/read/2017/12/26/320/1835879/ojk-diminta-bebaskan-bunga-kredit-bagi-pengungsi-gunung-agung https://economy.okezone.com/read/2017/12/26/320/1835879/ojk-diminta-bebaskan-bunga-kredit-bagi-pengungsi-gunung-agung https://www.hukumonline.com/berita/baca/lt5a4c8d7c228b4/ojk-tetapkan-karangasem-bali-dalam-perlakuan-khusus-soal-kredit-bank/ https://www.hukumonline.com/berita/baca/lt5a4c8d7c228b4/ojk-tetapkan-karangasem-bali-dalam-perlakuan-khusus-soal-kredit-bank/ has financial policy intervention benefited local society who affected by natural disaster?: questioning a utilitarian approach ketut sukawati lanang putra perbawa 207 loan demand after natural disasters. 7 haeva hadi et.al conducted legal research that analyzes the obstacles that occur in the implementation of the agreement on home loan (kpr) after severe damaged due to the earthquake that occurred in north lombok regency, province of west nusa tenggara. 8 pujiyono et.al study issues on the implementation of the regulation of financial service authority with regards to the dispute of non-performed small and micro loans due to a natural disaster. 9 felix noth and ulrich schuwer explored whether or not natural disasters affect bank stability and found that disaster damages in the banks’ business regions indeed weaken bank stability and performance. 10 norman i. silber, addresses inequities in the apportionment of losses that arise when traditional rules of consumer finance are applied to enforce payment obligations that accrue during and after catastrophes and explores the contracts and debt obligations of those who would be affected in another disaster of similar or even greater magnitude and duration and suggests a reform that could ameliorate foreseeable consumer finance difficulties in a manner consistent with contemporary approaches to consumer protection.11 2. result and analysis 2.1. natural disaster and the clause of force majeure there is a common understanding that the inability of the debtor to pay their loans due to earthquakes, flash floods, and the presence of lava/eruption of mount agung should be connected to the concept of force majeure. force majeure simply means “an event or effect that cannot be reasonably anticipated or controlled.”12 this phrase commonly used in the field of law to refer to “an unexpected event such as a war, crime, or 7 jaap bos, runliang li, and mark sanders. "hazardous lending: the impact of natural disasters on banks' asset portfolio." (2018). 8 haeva hadi, zainal asikin, muhammad sood. agreement on home loan (kpr) due to natural disaster (case study in north lombok regency)." international journal of multicultural and multireligious understanding 6, no. 3 (2019): 267-276. 9 pujiyono, m najib imannullah, ryan ganang kurnia, "problematika pelaksanaan pojk nomor 45/pojk. 03/2017 dalam penyelesaian kredit kecil dan mikro yang macet karena bencana alam." jurnal ius kajian hukum dan keadilan 6, no. 3 (2018): 466. 10 noth, felix; schüwer, ulrich. "natural disaster and bank stability: evidence from the us financial system." safe working paper, no. 167. (2018). 11 norman i. silber, debts, disasters, and delinquencies: a case for placing a mandatory force majeure provision into consumer credit agreements." nyu rev. l. & soc. change 34 (2010): 760-792. 12 merriam-webster. https://www.merriam-webster.com/dictionary/force%20majeure https://dictionary.cambridge.org/dictionary/english/unexpected https://dictionary.cambridge.org/dictionary/english/event https://dictionary.cambridge.org/dictionary/english/war https://dictionary.cambridge.org/dictionary/english/crime https://www.merriam-webster.com/dictionary/force%20majeure udayana journal of law and culture vol. 3 no. 2, july 2019 208 an earthquake which prevents someone from doing something that is written in a legal agreement”13 one can be given relief in an agreement because of the existence of a force majeure, which is a matter/condition or clause that can be used in providing relief or reducing performance (obligations in the agreement) of the parties. force majeure is one of the clauses that are usually in an agreement, said one clause because the position of force majeure in an agreement is in the main agreement, not separate as an additional agreement and associated with the main agreement as an agreement. a force majeure clause refers to “contract provision that allows a party to suspend or terminate the performance of its obligations when certain circumstances beyond their control arise, making performance inadvisable, commercially impracticable, illegal, or impossible.”14 indonesian civil code does not regulate in a formal manner about force majeure but rather regulates force majeure in relation to compensation for loss and interest. whatsoever, general conclusions can be drawn from special arrangements. this can be seen in the regulation section on compensation, or risk regulation due to force majeure for unilateral contracts or in special contracts. article 1244 of the indonesian civil code mentions that “if there is any reason for such, the debtor is compensated for costs, damages, and interests if he cannot prove, that the non-performance or the late performance of such obligation, is caused by an unforeseen event, for which he is not responsible and he was not acting in bad faith.” further, article 1244 of indonesian civil code regulates that “the debtor needs not to compensate for costs, damages or interests if an act of god or an accident prevented him from giving or doing an obligation, or because of such reasons he committed a prohibited act” the elements of force majeure in the indonesian civil code can be detailed as follows: first, the event that causes the occurrence of force majeure must be "unexpected" by the parties, or not included in the basic assumption when the parties make the contract (article 1244 of the indonesian civil code ); second, the event cannot be accounted for by the party who must carry out the presentation (the debtor) (article 1244 of the indonesian civil code); third, events that cause force majeure are outside the fault of the debtor (article 1244 of the indonesian civil code); fourth, the event that caused the force majeure was not a deliberate incident by the debtor. this is an inaccurate formulation, 13 cambridge dictionary. https://dictionary.cambridge.org/dictionary/english/forcemajeure 14 contract standards. clauses. force majeure. https://www.contractstandards.com/public/clauses/force-majeure https://dictionary.cambridge.org/dictionary/english/earthquake https://dictionary.cambridge.org/dictionary/english/prevent https://dictionary.cambridge.org/dictionary/english/legal https://dictionary.cambridge.org/dictionary/english/agreement https://dictionary.cambridge.org/dictionary/english/force-majeure https://dictionary.cambridge.org/dictionary/english/force-majeure https://www.contractstandards.com/public/clauses/force-majeure has financial policy intervention benefited local society who affected by natural disaster?: questioning a utilitarian approach ketut sukawati lanang putra perbawa 209 the cause of which should be "beyond the fault of the parties (article 1545 of the indonesian civil code), not accidentally". because, the mistakes of the parties are either done intentionally or unintentionally, namely in the form of "negligence" (negligence); fifth, the parties are not in a state of bad faith (article 1244 of the indonesian civil code).15 the qualification of natural disaster as a type of force majeure, as usually appears is the clause of the contract, makes the non-performing loans are credit risk in the banking business. 16 one of them is due to natural disasters and this is a force majeure where the presence of unexpected events that occurred outside the fault of the debtor after entering into the agreement, these events preclude the debtor from fulfilling his achievements before debtor is declared to be negligent and therefore the debtor cannot be blamed and do not bear the risk for such events. natural disasters are included in the clause of force majeure.17 2.2. the role of indonesian financial services authority in addressing natural disaster the establishment of indonesian financial services authority (otoritas jasa keuangan/ojk) was aimed at ensuring the activities in the financial services sector to be implemented in an organized, fair, transparent and accountable manner, capable of realizing the financial system that grows in a sustainable and stable manner, and capable of protecting the consumers and society interests.18 the creation of ojk enables the central bank of indonesia to focus on monetary management and do not need to deal anymore with bank supervision matters as a sector in the economy.19 article 5 makes clear that the functions of ojk are to establish an integrated regulatory and supervisory system for all activities in the financial services sector. ojk performs its regulatory and supervisory duties over:20 a. financial services activities in the banking sector; b. financial services activities in the capital market sector; and 15 agri chairunisa isradjuningtias, force majeure (overmacht) dalam hukum kontrak (perjanjian) indonesia, veritas et justitia1 no.1 (2015): 136-154. 16 see rudy haposan siahaan, "natural disaster as the reason to writing off banking credit in indonesia." brawijaya law journal 1, no. 1 (2014): 14-25, 17 ibid. 18 law of the republic of indonesia no. 21 year 2011 on financial services authority, art. 4. 19 adrian sutedi, aspek hukum otoritas jasa keuangan. jakarta: raih asa sukses, 2014. 43 20 law of the republic of indonesia no. 21 year 2011 on financial services authority, art. 6. udayana journal of law and culture vol. 3 no. 2, july 2019 210 c. financial services activities in the sectors of insurance, pension fund, financing institutions, and other financial services institutions. ojk is authorized to take necessary actions to prevent consumers and public from losses by ordering the financial services institutions to terminate their activities if such activities are potential to cause losses to the public and by taking other actions deemed necessary in accordance with the provisions of laws and regulations in the financial services sectors. 21 in substance, authorities given to ojk reflects constitutional mandate that aims to ensure that the financial services sector is orderly, orderly, fair, transparent and accountable, which in turn creates a stable and sustainable financial system.22 with regards to natural disaster, ojk issued regulation of indonesian financial services authority no. 45/pojk.03/2017 on special treatment of credit or bank financing for certain areas in indonesia affected by natural disasters. this ojk regulation was adopted by the board of commissioners in considering the following aspects. 23 1. confirmation that natural disasters that have hit various regions in indonesia several times generally have a significant impact on economic growth in certain areas affected by natural disasters 2. acknowledgment that indonesia is geographically located in a vulnerable area affected by natural disasters that leads to potency for natural disaster 3. the belief that efforts to support recovery economic conditions may be carried out by granting special treatment of bank credit or financing with a certain amount and credit or financing restructured 4. the authority of ojk to re-arrangement of treatment specifically for bank credit or financing for the certain regions in indonesia affected by natural disasters due to its functions, tasks, and regulatory authority and supervision of financial services at the banking sector with regard to granting of credit, this regulation explains a bank may grant credit or financing and/or other provision of funds which is given after a 21 ibid, art. 28. 22 hermansyah, hukum perbankan nasional indonesia, edisi kedua, cetakan ke-8, jakarta: prenadamedia group, 2014, 228. 23 regulation of indonesia financial servives authority no. 45 /pojk.03/2017 on special treatment for credit or financing of banks in certain regions of indonesia that are affected by natural disasters, part consideration, a, b, c, d. has financial policy intervention benefited local society who affected by natural disaster?: questioning a utilitarian approach ketut sukawati lanang putra perbawa 211 disaster occurs to borrowers in certain regions of indonesia affected by natural disasters. 24 article 6 of regulation of indonesian financial services authority no. 45/pojk.03/2017 on special treatment of credit or bank financing for certain areas in indonesia affected by natural disasters makes clear that determination of certain areas affected by natural disasters stipulated in a decision of the authority board of commissioners financial services by paying attention to aspects: a. the area affected by natural disasters; b. the number of deaths; c. amount of material loss; d. the number of debtors expected to be affected by the natural disaster; e. percentage of the amount of credit or financing provided to debtors affected by natural disasters f. the amount of credit or financing in the area affected by natural disasters; g. percentage of credit or financing with a ceiling of up to rp 5.000.000.000,00 (five billion rupiahs) to the amount of credit or financing in areas affected by natural disasters; and h. other aspects according to the financial services authority need to be considered. pujiyono, m najib imannullah, ryan ganang kurnia reveals a bank practice of restructuring bad loans as affected by natural disasters in the form of a reduction in credit principal arrears. despite its expected effectivity, such practice is without any risks as it is the last resort of credit restructuring provided by banks because it is usually followed by the elimination of interest and total penalties.25 credit restructuring is an improvement effort made by the bank in credit activities to debtors who have difficulties to fulfill its obligations, which are carried out among others through:26 a. reduction in loan interest rates; b. extension of credit period; 24 delloite, new financial services authority (ojk) regulations, the summary of the new financial services authority (ojk) regulations, 3 august 2017 km 6/8/2017 25 pujiyono, m najib imannullah, ryan ganang kurnia, loc.cit. 26 regulation of central bank of indonesia no. 14/ 15 /pbi/2012 concerning assessment of commercial bank asset quality, article 1 (26) udayana journal of law and culture vol. 3 no. 2, july 2019 212 c. reduction in interest on credit arrears; d. reduction of credit principal arrears; e. addition of credit facilities; and/or f. credit conversion into temporary equity participation. in 2017, several cities in indonesia were affected by natural disasters, including earthquakes, volcanic eruptions, and flooding. in light of the circumstances, ojktook action and issued a board of commissioners (hereinafter referred to as boc) decree containing several policies for the special treatment of loans in disaster areas as follows:27 1. ojk boc decree no. 02/kdk.03/2017 on designating pidie jaya as a regency requiring special bank loan treatment the regulation was issued to banks in natural disaster areas, in this case, pidie jaya regency that was affected by an earthquake. the provisions of the regulation stipulated that loan requirements would be relaxed in pidie jaya for three years from 20th january 2017. 2. ojk boc decree no. 03/kdk.03/2017 on extending the maturity of bank loans in several districts of karo as a regency requiring special bank loan treatment the regulation was issued to extend the maturity on bank loans in payung, nawanran, simpang ampat and tiganderket districts in karo as a regency requiring special bank loan status. the provisions of the regulation extended the maturity of bank loans in several districts of karo by one year from 22nd january 2017. 3. ojk boc decree no. 04/kdk.03/2017 on designating bima as a city requiring special bank loan treatment the regulation was issued to banks in natural disaster areas, in this case, bima city, west nusa tenggara, that were affected by flash flooding. the provisions of the regulation stipulated that loan requirements would be relaxed in bima for three years from 20th january 2017. 4. ojk boc decree no. 20/kdk.03/2017 on designating karangasem, bali, as a regency requiring special bank loan treatment the regulation loosened the criteria to determine the quality of loans and restructured loans for borrowers affected by the mount agung volcanic eruption in karangasem, bali. the provisions of the regulation stipulated that loan requirements would be relaxed in karangasem, bali, for three years from 29th december 2017. 27 indonesia financial services authority 2017 annual report, 99-100 https://ojk.go.id/id/data-dan-statistik/laporantahunan/documents/laporan%20tahunan%20ojk%202017.pdf https://ojk.go.id/id/data-dan-statistik/laporan-tahunan/documents/laporan%20tahunan%20ojk%202017.pdf https://ojk.go.id/id/data-dan-statistik/laporan-tahunan/documents/laporan%20tahunan%20ojk%202017.pdf has financial policy intervention benefited local society who affected by natural disaster?: questioning a utilitarian approach ketut sukawati lanang putra perbawa 213 in august 2018 the financial services authority (ojk) established a policy to provide special treatment for islamic credit and financing from banking, for debtors or projects located in natural disaster locations in the province of west nusa tenggara.28 some economic impacts of natural disasters in indonesia have challenged the role of ojk. in january 2019, the chairman of the indonesian people’s representative council asked the government to help eliminate bank credit bills for around 10.000 debtors affected by the earthquake and tsunami disaster in palu, donggala and sigi, south sulawesi. the debtor whose business cannot run properly because of being hit by a disaster is difficult to start a business or pay for credit. the elimination policy is expected to not only ease the burden of victims of natural disasters but also to accelerate economic recovery in those areas.29 after the ojk boc announced a credit and financing payment relief policy for customers affected by the earthquake and tsunami victims in central sulawesi, a number of banks positively welcomed the loan repayment relief policy for customers who were victims of the central sulawesi natural disaster in order to restore the economy and financial services industry in the region. however, there are also concerns that this policy has the potential to be used by parties who have moral hazard intentions to avoid the obligation to repay loans from banks and other financial services industries.30 recently, ojk releases circular letter of the indonesian financial authority no. 1 / seojk.03/2019 on application of risk management for rural banks, as a technical implementation of the financial services authority regulation no 13 / pojk.03 / 2015 concerning application of risk management for rural banks, that alerts some issues of disaster. in this letter, ojk urges rural banks to adopt risk management policies that should at least include the creation of a contingency plan in the worst condition. it is a scenario development plan to anticipate internal disturbances including system 28 sp 54/dhms/ojk/viii/2018 siaran pers perlakuan khusus terhadap kredit atau pembiayaan bank dan industri jasa keuangan yang terkena bencana alam gempa bumi di provinsi nusa tenggara barat, https://www.ojk.go.id/id/berita-dan-kegiatan/siaranpers/documents/pages/siaran-pers-perlakuan-khusus-terhadap-nasabah-dan-ojkterdampak-gempa-ntb/siaran%20pers%20perlakuan%20khusus%20lombok.pdf 29 dpr ri. berita. pemerintah diharapkan hapus tagihan kredit perbankan korban bencana. last modified january 17, 2019. http://www.dpr.go.id/berita/detail/id/23557/t/pemerintah+diharapkan+hapus+tagihan+kre dit+perbankan+korban+bencana 30 hukumonline.com. berita. begini cara ojk ringankan kredit korban gempa sulteng. last modified october 11, 2018. https://www.hukumonline.com/berita/baca/lt5bbf3916dcf6a/begini-cara-ojkringankan-kredit-korban-gempa-sulteng/ https://www.ojk.go.id/id/berita-dan-kegiatan/siaran-pers/documents/pages/siaran-pers-perlakuan-khusus-terhadap-nasabah-dan-ojk-terdampak-gempa-ntb/siaran%20pers%20perlakuan%20khusus%20lombok.pdf https://www.ojk.go.id/id/berita-dan-kegiatan/siaran-pers/documents/pages/siaran-pers-perlakuan-khusus-terhadap-nasabah-dan-ojk-terdampak-gempa-ntb/siaran%20pers%20perlakuan%20khusus%20lombok.pdf https://www.ojk.go.id/id/berita-dan-kegiatan/siaran-pers/documents/pages/siaran-pers-perlakuan-khusus-terhadap-nasabah-dan-ojk-terdampak-gempa-ntb/siaran%20pers%20perlakuan%20khusus%20lombok.pdf http://www.dpr.go.id/berita/detail/id/23557/t/pemerintah+diharapkan+hapus+tagihan+kredit+perbankan+korban+bencana http://www.dpr.go.id/berita/detail/id/23557/t/pemerintah+diharapkan+hapus+tagihan+kredit+perbankan+korban+bencana https://www.hukumonline.com/berita/baca/lt5bbf3916dcf6a/begini-cara-ojk-ringankan-kredit-korban-gempa-sulteng/ https://www.hukumonline.com/berita/baca/lt5bbf3916dcf6a/begini-cara-ojk-ringankan-kredit-korban-gempa-sulteng/ udayana journal of law and culture vol. 3 no. 2, july 2019 214 failure and external interference cause an emergency that can cause disruption to rural bank operations. in preparing an emergency plan, the rural bank must also develop a business continuity plan policy for possible conditions extern and worst internal, so business continuity rural bank can be maintained including a disaster recovery plan.31 in terms of policy and procedure, ojk expected rural banks to have business continuity management (bcm) as an integrated protocol and overall to ensure the continuity of rural banks their operations in conducting business and serving customers, for anticipating force conditions such as natural disasters, fire, robbery, or technical problems experienced by rural banks that affect the sustainability of their operations.32 further, this circular letter also addresses that in identifying credit risk, it is necessary considered factors that can affect the level of risk future credit, as is possible changes in economic conditions, including changes in consequences natural disasters and government policies.33 the above analysis shows that in indonesia the efforts of financial stabilisation in responding to the natural disaster is primarily taken by the ojk by issuing a relaxation policy. this may relatively differ from the practices in other countries. vietnam law stipulates that rural households can receive a lump sum for the destruction of their house affected by a natural disaster. the government often increases this amount as it generally considered insufficient. 34 in latin america, development organizations and private investors created a novel intermediary institution, the emergency liquidity facility mechanisms for financing the costs of disasters which acts as a lender of last resort by providing needed and immediate post-disaster liquidity to mfis, this institution was developed as they realize that the risks of post-disaster microcredit as it increases post-disaster demand that can challenge the liquidity of micro-credit organizations and tempt relaxed loan conditions or even debt pardoning. 35 in africa, economic constraints resulted from natural disasters are infrequently and incompletely reported that entails an underestimation of 31 circular letter of the indonesian financial authority no. 1 / seojk.03/2019 on application of risk management for rural banks, section b.2.f.5) 32 ibid., section c.2.h 33 ibid., section d.1.d 34 ghesquiere, francis and mahul, olivier, "financial protection of the state against natural disasters: a primer." world bank policy research working paper 5429 (2010). 35 mechanisms for financing the costs of disasters joanne linnerooth-bayer, stefan hochreiner-stigler and reinhard mechler1 27 november 2012 report produced for the government office of science, foresight project ‘reducing risks of future disasters: priorities for decision makers’, 10-11. as a comparison, bank-lending channel is that a relaxed monetary policy induces banks to provide more lending. seesantiago carbó valverde · rafael lópez del paso, bank-lending channel and non-financial firms: evidence for spain, spanish economic review 11, no.2 (2009): 125-140. has financial policy intervention benefited local society who affected by natural disaster?: questioning a utilitarian approach ketut sukawati lanang putra perbawa 215 damage figures. the inefficiency of formal (state and market) institutions to handle natural disasters in this continent presents a major handicap for its development. 36 2.3. the implementation of ojk rules in bali and the concern of local community ojk discovered that the distribution of credit from banks to communities on the island of bali is still centered on the municipality of denpasar, badung regency, and gianyar regency while the other potential regencies for credit distribution are bangli, klungkung, dan tabanan. 37 therefore, karangasem regency is actually not part of those credit circulation in bali. for karangasem regency in bali province, decision ojk boc no.20/kdk.03/2017 determines karangasem regency-bali as an area that needs its special treatment of bank credit and is valid for three years since december 29, 2017.38 in general, banks will make efforts to overcome problem loans by way of rescheduling, reconditioning and restructuring. 39 the following explanation reveals an example of how a public bank (commercial bank), namely bpd bali in responding to the policy. the head of bpd bali karangasem branch said that ojk relaxation rules for credit due to the eruption of mount agung were quite significant. but the credit settlement process that can be carried out relaxation is the smooth one. ojk's rules regarding it are not fully implemented, because banks must choose and sort out loans that can be relaxed. most relaxation is given to productive credit, even though there are some debtors seem do not need such measure as they can afford to pay even in the event of economic uncertainty. the bank does not apply such relaxation for consumer loans, especially for civil servants and other types of employees. credit realization until december 2017 amounted to rp 1.2 trillion with an npl of 5.28%, which was restructured at rp 12.6 billion. until the end of december 2018, the realization of credit was rp 1.2 trillion with an npl of 4.24% which was restructured in the amount of rp. 147, 4 billion. looking at the data of the bpd bali karangasem branch, it can be assumed that in the period of 2017 to 36 emmanuel innocents edoun, roland azibo balgah & charles mbohwa. "the impact of effective management of natural disasters for africa’s development." economic researchekonomska istraživanja 28, no. 1 (2015): 924-938. 37 cnn indonesia. berita keuangan. ojk ungkap tiga kabupaten di bali yang paling aktif berutang. https://www.cnnindonesia.com/ekonomi/20160819162536-78-152496/ojkungkap-tiga-kabupaten-di-bali-yang-paling-aktif-berutang 38 press release of the indonesian financial service authority no. sp 01/dhms/ojk/i/2018 on special policies for banking in karangasem bali 39 pujiyono, m najib imannullah, ryan ganang kurnia, op.cit., 461. https://www.cnnindonesia.com/ekonomi/20160819162536-78-152496/ojk-ungkap-tiga-kabupaten-di-bali-yang-paling-aktif-berutang https://www.cnnindonesia.com/ekonomi/20160819162536-78-152496/ojk-ungkap-tiga-kabupaten-di-bali-yang-paling-aktif-berutang udayana journal of law and culture vol. 3 no. 2, july 2019 216 2018 the credit realization has not changed or remained, but there have been additional restructuring between 2017 and 2018, which included the result of ojk's loan relaxation rules. so that makes the npl from 2017 and 2018 decline, which means that the performance of troubled loans also decreases in terms of quantity. whatsoever, in the year 2019 bpd bali optimistically targetted the credit will grow up until 9 percent, although in 2018 the realization was not 2 percent. the target is made based on the high allocation on kredit usaha rakyat (people’s business credit) for mainly production sector (e.g tourism and agriculture) and trade sector, the supply chain financing (scf), local government financing as well as a wish that there will be no natural disaster occurs anymore.40 bpr performance in bali grew slowly during the period of januaryseptember 2018 due to unstable economic growth and the process of banking consolidation continued as a result of the eruption of mount agung and the earthquake. the npl ratio of bprs in bali until september 2018 reached 9.24 percent, up from the previous position of 7.82 percent, exceeding the national average of 7.16 percent.41 a leading rural bank in bali, bpr lestari organized a focus group discussion with the topic of the handling of non performing loans and the impact of mount agung eruption by virtue of mapping the strategy to be applied in dealing with the situation faced. one of its bankers conveyed three aspects that become the focus in addressing the financial storm situation, namely credit quality, costs, and human resources. the fgd concluded that central bank of indonesia and ojk rules have to be implemented that ensure the rural banks are in the right track.42 it cannot be denied that a utilitarian approach was used by ojk in the form of banking-relaxation policy in supporting the local society affected by natural disaster. however, the ojk rules seems to have not been fully implemented by both public and rural banks in bali. it can be argued that the uniqueness of the economic situation in bali that is very much influenced by the peculiarity of its social and cultural life of 40 tribunbali.com. bisnis. bpd bali optimistis target pertumbuhan kredit 9 persen, ojk segera rampungkan calon dewan komisaris. https://bali.tribunnews.com/2019/02/01/bpd-bali-optimistis-target-pertumbuhan-kredit-9persen-ojk-segera-rampungkan-calon-dewan-komisaris 41 antara bali. berita. ojk: kinerja bpr di bali tumbuh melambat. last modified december 4, 2018. https://bali.antaranews.com/berita/134345/ojk-kinerja-bpr-di-balitumbuh-melambat 42 bpr lestari. lestari news. risiko kredit terus naik, bpr lestari gelar focus group discussion bpr se-indonesia. last modified february 12, 2018. https://bprlestari.com/en/berita-lestari/risiko-kredit-terus-naik-bpr-lestari-gelar-focusgroup-discussion-bpr-se-indonesia?page=17 https://bali.tribunnews.com/2019/02/01/bpd-bali-optimistis-target-pertumbuhan-kredit-9-persen-ojk-segera-rampungkan-calon-dewan-komisaris https://bali.tribunnews.com/2019/02/01/bpd-bali-optimistis-target-pertumbuhan-kredit-9-persen-ojk-segera-rampungkan-calon-dewan-komisaris https://bali.antaranews.com/berita/134345/ojk-kinerja-bpr-di-bali-tumbuh-melambat https://bali.antaranews.com/berita/134345/ojk-kinerja-bpr-di-bali-tumbuh-melambat https://bprlestari.com/en/berita-lestari/risiko-kredit-terus-naik-bpr-lestari-gelar-focus-group-discussion-bpr-se-indonesia?page=17 https://bprlestari.com/en/berita-lestari/risiko-kredit-terus-naik-bpr-lestari-gelar-focus-group-discussion-bpr-se-indonesia?page=17 has financial policy intervention benefited local society who affected by natural disaster?: questioning a utilitarian approach ketut sukawati lanang putra perbawa 217 the local peoples has not to be taken into consideration by relevant financial authorities in issuing a policy to address financial problems faced by those who affected by natural disasters. the following narrations will explore three matters that were not seriously be addressed. first of all, the concerns on cultural-economic issues. the majority of bali population are balinese hindus who use parts of the money for practicing their religious, cultural, and tradition activities and supporting the establishment of temples.43 it has ever been studied that almost 60% of the budget is not used for meals consumption.44 not all loan is used for initiating or developing the business as sometimes, they need a loan to support the incidental ceremonies such as cremation.45 as an example, in south bali, a few years ago the cost of the simplest cremation ceremony was around idr.10.000.000,(currently is about us$700) while the middle-level of cremation ceremonies may cost between idr 50.000.000,(us$ 3.500) and idr 60.000.000,(us$ 4.250). a bunch of budgets mostly spent by the royalty who may reach hundreds of millions or even billions of indonesian rupiah.46 second, in the context of local economies. karangasem regency gained a lack of revenue that leads it becomes the lowest average economic growth rate compared to other regencies/municipality in bali.47 many potential residents of karangasem choose to work in southern are of bali that more wealth in terms of economics, mainly denpasar city and badung regency. despite the government has tried to initiate micro, small, and middle-size business in karangasem regency in order to enable them to manage their own economic potency, the remaining residents are relatively struggling with their livelihood. third, in terms of the tourism industry. it is generally known that bali is a tourist destination in which the tourism industry plays a main role in generating economics of the local society. some travel advisory issued by foreign countries suggesting not to visit bali due to this natural disaster has an 43 ni nyoman alit triani and made dudy satyawan, "memaknai sisi akuntansi sumbangan keagamaan masyarakat hindu bali." jurnal akuntansi multiparadigma 7, no. 2 (2016): 240-255. 44 tirto.id. sosial budaya. hampir 60% pengeluaran masyarakat bali bukan untuk makanan. https://tirto.id/hampir-60-pengeluaran-masyarakat-bali-bukan-untuk-makanancleb 45 see nengah bawa atmadja dan tuty maryat. "geria pusat industri banten ngaben di bali perspektif sosiologi komodifikasi agama." jurnal kawistara 4, no. 2 (2014): 111-224. 46 i made arsana. bali’s ritual economy. center for religious and cross-cultural studies, universitas gadjah mada, yogyakarta, https://crcs.ugm.ac.id/balis-ritual-economy/ 47 ni made winda savitri dewi and i nyoman mahaendra yasa. analisis sektor potensial dalam menetapkan perencanaan pembangunan di kabupaten karangasem. e-jurnal ekonomi pembangunan universitas udayana 7, no.1 (2018): 152-183. https://tirto.id/hampir-60-pengeluaran-masyarakat-bali-bukan-untuk-makanan-cleb https://tirto.id/hampir-60-pengeluaran-masyarakat-bali-bukan-untuk-makanan-cleb https://crcs.ugm.ac.id/balis-ritual-economy/ udayana journal of law and culture vol. 3 no. 2, july 2019 218 impact on the decreasing numbers of visitors that leads to fragile and uncertainty economic situation. as an illustration, in december 2017 there was 21% decrease in room occupancy in bali, and if the average room price in bali is around idr 1 million, the total lost is around idr 1.100 billion, that affect 80% of the people in bali whose economically dependent on the tourism sector.48 the fact is that karangasem regency is like a ‘newbie’ in developing the tourism industry compared to badung, denpasar, and gianyar. most tourists prefer to stay in the southern part of bali, close to the international airport and famous tourist attractions, leaving karangasem regency as a secondary option to stay. it entails an unstable income for karangasem residents who work in the field of the tourism industry that would have an impact on their ability to perform their loans. these three reasons may raise an understanding that the ojk financial relaxation policy may have an impact on the general and rural banks in the context of loan policy. the policy also seems to help local society, especially those who have an obligation for loan performance, but temporarily. however, this utilitarian policy cannot solve the economic problems faced by local society affected by mount agung eruptions, especially karangasem residents, as the abovementioned issues have not to be taken into account. 3. conclusion based on indonesian law, the performance of obligation raises from a contractual agreement may be waived in case of a natural disaster. this is generally known as a ‘force majeure’ condition that in most contracts, appears as a specific clause. the present article argues that local society who affected by the eruption of mount agung in karangasem regency-bali may use ‘force majeure’ to suspend their obligation performance in any economic matters, including loan banking. this private law concern has been realized by the indonesian financial service authority that has issued a commissioner board decision in addressing the impact of such disaster in bali. the decision is a kind of relaxation financial policy for the period of 3 years that is expected to give flexibility to local society to re-arrange their economic situation after the disaster. it seems that such a policy has not properly been implemented by all banks in a related area. a utilitarian approach that inspired the ojk relaxation policy seems to need to be adjusted by considering the concerns on cultural 48 putu indah rahmawati, nana trianasari, a.a.ngr.yudha martin, "the economic impact of mount agung eruption on bali tourism." in international conference on tourism, economics, accounting, management, and social science (teams 2018). atlantis press, 2019: 98-107. has financial policy intervention benefited local society who affected by natural disaster?: questioning a utilitarian approach ketut sukawati lanang putra perbawa 219 economic issues, the real declining and uncertain situation of the local economy, and the fragile tourism industry in karangasem regency. acknowledgment author would like to recognize the role of maheswara sukawati perbawa for doing technical aspects of this publication. bibliography book hermansyah. hukum perbankan nasional indonesia. edisi kedua, cetakan ke8. jakarta: prenadamedia group, 2014. sutedi, adrian. aspek hukum otoritas jasa keuangan. jakarta: raih asa sukses, 2014. . journal article isradjuningtias, agri chairunisa. force majeure (overmacht) dalam hukum kontrak (perjanjian) indonesia, veritas et justitia1 no.1 (2015): 136154, https://doi.org/10.25123/vej.1420 bos, jaap, runliang li, and mark sanders. 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dan sigi. last modified october 10, 2018. https://www.gatra.com/detail/news/353484-begini-detil-perlakuankhusus-ojk-bagi-nasabah-dan-industri-jasa-keuangan-korbanbencana-palu-donggala-dan-sigi bpr lestari. lestari news. risiko kredit terus naik, bpr lestari gelar focus group discussion bpr se-indonesia. last modified february 12, 2018. https://bprlestari.com/en/berita-lestari/risiko-kredit-terus-naik-bprlestari-gelar-focus-group-discussion-bpr-se-indonesia?page=17 tribunbali.com. bisnis. bpd bali optimistis target pertumbuhan kredit 9 persen, ojk segera rampungkan calon dewan komisaris. last modified february 1, 2017. https://bali.tribunnews.com/2019/02/01/bpd-bali-optimistis-targetpertumbuhan-kredit-9-persen-ojk-segera-rampungkan-calon-dewankomisaris contract standarts. clauses. force majeure. https://www.contractstandards.com/public/clauses/force-majeure dictionary cambridge dictionary. https://dictionary.cambridge.org/dictionary/english/force-majeure merriam-webster. https://www.merriamwebster.com/dictionary/force%20majeure https://www.wartaekonomi.co.id/read163744/perbarindo-harapkan-dampak-gunung-agung-tidak-pengaruhi-npl.html https://www.wartaekonomi.co.id/read163744/perbarindo-harapkan-dampak-gunung-agung-tidak-pengaruhi-npl.html about:blank about:blank about:blank https://economy.okezone.com/read/2017/12/26/320/1835879/ojk-diminta-bebaskan-bunga-kredit-bagi-pengungsi-gunung-agung https://economy.okezone.com/read/2017/12/26/320/1835879/ojk-diminta-bebaskan-bunga-kredit-bagi-pengungsi-gunung-agung https://www.hukumonline.com/berita/baca/lt5a4c8d7c228b4/ojk-tetapkan-karangasem-bali-dalam-perlakuan-khusus-soal-kredit-bank/ https://www.hukumonline.com/berita/baca/lt5a4c8d7c228b4/ojk-tetapkan-karangasem-bali-dalam-perlakuan-khusus-soal-kredit-bank/ https://www.gatra.com/detail/news/353484-begini-detil-perlakuan-khusus-ojk-bagi-nasabah-dan-industri-jasa-keuangan-korban-bencana-palu-donggala-dan-sigi https://www.gatra.com/detail/news/353484-begini-detil-perlakuan-khusus-ojk-bagi-nasabah-dan-industri-jasa-keuangan-korban-bencana-palu-donggala-dan-sigi https://www.gatra.com/detail/news/353484-begini-detil-perlakuan-khusus-ojk-bagi-nasabah-dan-industri-jasa-keuangan-korban-bencana-palu-donggala-dan-sigi https://bprlestari.com/en/berita-lestari/risiko-kredit-terus-naik-bpr-lestari-gelar-focus-group-discussion-bpr-se-indonesia?page=17 https://bprlestari.com/en/berita-lestari/risiko-kredit-terus-naik-bpr-lestari-gelar-focus-group-discussion-bpr-se-indonesia?page=17 https://bali.tribunnews.com/2019/02/01/bpd-bali-optimistis-target-pertumbuhan-kredit-9-persen-ojk-segera-rampungkan-calon-dewan-komisaris https://bali.tribunnews.com/2019/02/01/bpd-bali-optimistis-target-pertumbuhan-kredit-9-persen-ojk-segera-rampungkan-calon-dewan-komisaris https://bali.tribunnews.com/2019/02/01/bpd-bali-optimistis-target-pertumbuhan-kredit-9-persen-ojk-segera-rampungkan-calon-dewan-komisaris https://www.contractstandards.com/public/clauses/force-majeure https://dictionary.cambridge.org/dictionary/english/force-majeure https://www.merriam-webster.com/dictionary/force%20majeure https://www.merriam-webster.com/dictionary/force%20majeure vol. 3, no. 2, july 2019, pp. 184-203 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3223 e-issn 2549-0680 184 indigenous whaling tradition in faroe islands under international law olivia martha setyonugroho  faculty of law udayana university, bali-indonesia i gede pasek eka wisanjaya  faculty of law udayana university, bali-indonesia made maharta yasa  faculty of law udayana university, bali-indonesia article received: 14th may 2019; accepted: 27th july 2019; published: 31st july 2019 abstract the issue of whaling has been extensively debated on various international occasions since it causes a decline in many of the world’s whale population. presently, faroe islands is one of the few regions in denmark that still adamantly practiced whaling for traditional purposes, even though denmark itself has prohibited it. this writing aims to analyze the whaling tradition in faroe islands from the international law perspective. further, to examine whether denmark has an international obligation to end whaling activities in faroe islands. the method that is used in this writing is the normative legal research. the result of this analysis shows that the tradition in faroe islands is consistent with international law, thus denmark has no international obligation to end the tradition. keywords: whaling tradition; faroe islands; international law how to cite (chicago 16th): setyonugroho, olivia martha, i gede pasek eka wisanjaya, and made maharta yasa. "indigenous whaling tradition in faroe islands under international law." udayana journal of law and culture 3, no. 2 (2019): 184-203. https://doi.org/10.24843/ujlc.2019.v03.i02.p04. :doi: https://doi.org/10.24843/ujlc.2019.v03.i02.p04  email/corresponding author: oliviamarthau@gmail.com  email: eka_wisanjaya@unud.ac.id  email: maharta_yasa@unud.ac.id https://doi.org/10.24843/ujlc.2019.v03.i02.p04 mailto:oliviamarthau@gmail.com mailto:eka_wisanjaya@unud.ac.id mailto:maharta_yasa@unud.ac.id indigenous whaling tradition in faroe islands under international law olivia martha setyonugroho, i gede pasek eka wisanjaya, and made maharta yasa 185 1. introduction 1.1. background according to the research published by international whaling commission (iwc) the populations of several species of whales, such as minke whales, blue whales, fin whales, gray whales, bowhead whales, humpback whales, right whales, bryde’s whales, pilot whales, balin whales, and sei whales, had declined precipitously. 1 the main factor contributing to the decline in whale stock is overexploitation. nations have exploited whales for hundreds of years.2 many people in several regions of the world hunted whales for their meat and blubber were able to fulfill their basic survival needs, such as food and lamp oil. most whale hunters are “indigenous peoples”,3 such as the ainu of japan, the inuit of the arctic regions (russia, canada, usa, and greenland), the maori of new zealand, the basques of the northwest spain and southwest france, the makah of the northwestern coastal region of the usa and canada, and the faroese of denmark. 4 indigenous whaling peoples, often living in isolated communities in the high arctic with no agriculture were seen to have limited opportunities to supplement local food production such as whale meat and blubber, with imported alternatives. moreover, they have made repeated calls for the protection of their lives, their cultures, their lands, and, ultimately, for the recognition of their right to selfdetermination.5 faroese lived in the faroe islands. the faroe islands are part of the kingdom of denmark, but are geographically isolated and culturally distinct. they are a self-governing archipelago of eighteen small islands in the north atlantic ocean, with a population of just 50,000 people.6 the faroese have control of most of their domestic affairs. those that are the responsibility of denmark include military defense, policing and the justice department, currency, and foreign affairs. since 1000 years ago, the people of faroe 1 “estimates: whales populations estimates, the international whaling commission's most recent information on estimated abundance”. https://iwc.int/estimate#table 2 benjamin van drimmelen. the international mismanagement of whaling." ucla pac. basin lj 10 (1991): 240-259. 3 the term indigenous peoples will be used for similar meaning as aborigines. indigenous peoples is the term normally used in international context while aborigines is normally used in domestic context. 4 sean patrick kerins, “whaling in the faroese.” (thesis, griffith school of environment, 2008), 6. 5 catherine j. iorns. “indigenous peoples and self determination: challenging state sovereignty.” 24 case w. res. j. int'l l. 199, (1992): 201-202. 6 faroeisland.fo. the official gateway to the faroe islands. https://www.faroeislands.fo/people-society/people-of-the-faroe-islands/population/ https://iwc.int/estimate#table https://www.faroeislands.fo/people-society/people-of-the-faroe-islands/population/ udayana journal of law and culture vol. 3 no. 2, july 2019 186 islands have counted on the ocean, and especially pilot whales, for food, blubber, and other biomaterials.7 the faroe islands pilot whaling tradition known as the “grindadrap” is highly controversial. grindadrap is an annual event that sees the faroese hunt long-finned pilot whales.8 it happens between june to august. it has been occurring since the 9th century when norse settlers brought with them practices for driving the pilot whales ashore where they slaughtered, hauled up, assessed, flensed, and then divided freely amongst the community to be used as food.9 as stated by the north atlantic marine mammal conservation organization (nammco) each year the slaughter is estimated to take less than 0.1% of the pilot whales population. 10 most faroese consider the grindadrap an important part of their culture and history. it has become an example of an important subsistence practice which demands cooperation between villages and survival through cooperation.11 in the 1980s the world at large became aware of the grindradrap tradition. a number of animal-rights group and environmental organizations starting to protest and criticize against the practice since 1985 with occasional campaigns occurring since. they claim the hunt as being cruel and unnecessary. these campaigns involved letter writing, sporadic sabotage efforts and attempts to enact an economic boycott of faroese product. since the 1980s the sea shepherd conservation society (sscs) has become one of a group of organizations protesting against grindadrap tradition.12 sscs was one of the first animal rights groups to target faroese whaling. as such, sscs has periodically campaigned in the faroe islands prior to grindstop 2014, where their actions were broadcast as part of the television series whale wars.13 7 lucas isacowitz. “culture or cruelty: why the faore islands still kills hundreds of whales every year”. http://projectearth.us/on-the-faroe-islands-killing-hundreds-ofwhales-every-1796848516 8 phillip budgen. news. “what is grindadrap and why is whaling in the faroe islands so controversial”. https://www.lifegate.com/people/news/what-is-grindadrap-why-isit-controversial; o'barry, helene hesselager. "heart of darkness." earth island journal 27, no. 4 (2013): 18-23. 9 sean patrick kerins, op.cit, 1. 10 tim ecott. “why we should let faroe islanders hunt whales”. http://www.spectator.co.uk/2014/02/why-we-should-let-faroe-islanders-huntwhales/ 11 ragnheiður bogadóttir and elisabeth skarðhamar olsen. "making degrowth locally meaningful: the case of the faroese grindadráp." journal of political ecology 24, no. 1 (2017): 504-518 12 e. b. heinesen. “cultural clashes make sea shepherd campaign counterproductive”, the arctic journal 67 (2014); sscs, about the campaign, grindstop 2014: defending dolphins in the faroe islands. http://www.seashepherd.global/grindstop/aboutcampaign/about-the-campaign.html 13 benedict e. singleton. "love-iathan, the meat-whale and hidden people: ordering faroese pilot whaling." journal of political ecology 23, no. 1 (2016): 26-48. http://projectearth.us/on-the-faroe-islands-killing-hundreds-of-whales-every-1796848516 http://projectearth.us/on-the-faroe-islands-killing-hundreds-of-whales-every-1796848516 https://www.lifegate.com/people/news/what-is-grindradap-why-is-it-controversial https://www.lifegate.com/people/news/what-is-grindradap-why-is-it-controversial http://www.spectator.co.uk/2014/02/why-we-should-let-faroe-islanders-hunt-whales/ http://www.spectator.co.uk/2014/02/why-we-should-let-faroe-islanders-hunt-whales/ http://www.seashepherd.global/grindstop/about-campaign/about-the-campaign.html http://www.seashepherd.global/grindstop/about-campaign/about-the-campaign.html indigenous whaling tradition in faroe islands under international law olivia martha setyonugroho, i gede pasek eka wisanjaya, and made maharta yasa 187 however, according to the fisheries minister of faroe islands, hogni hoydal, the practice by the people of faroe islands is a key part of the faroese tradition of living in a sustainable way off their marine resources.14 moreover, a spokesman for the faroese government, pall nolse, stated that whaling is a natural part of faroese life and it is conducted in accordance with international law.15 this statement shows that they will continue such hunting, even if there is a large protest regarding their whaling tradition. based on those concerns, it is needed to analyze whether the grindadrap in faroe islands is lawful under the international law. 1.2. purpose this paper addresses two main legal issues: firstly, what is the legal status of grindadrap under international law, and secondly, does denmark have an international legal obligation to end grindadrap in faroe islands. this paper aims to analyze how does the existing legal framework of whaling for aboriginal subsistence in international law. 1.3. research method and article outline the research method applied in this paper is normative legal research, using a combination of comparative, statutory, analytical and conceptual approaches. the analysis is focused on primary sources of law contained in international instruments and statutes, as well as secondary sources (the concept of laws provided in journals, books, and the internet).16 perspectives in this paper are enriched by statute, comparative, and fact-based approaches concerning whaling in general, as well as aboriginal whaling subsistence in particular. section 2.1. of this writing will assess the legal status of indigenous rights in international law, followed by international law regulating whaling in section 2.2. finally, section 2.3. will provide an analysis regarding denmark’s international obligation regarding the grindadrap in faroe islands. 1.4. literature review whaling has been carried out by man for thousands of years and records show that the first whaling expeditions were carried out by 14 phys.org. ecology. “pilot whale meal poses health hazard, faroese warned”. http://phys.org/news/2018-06-whale-meat-poses-health-hazard.html 15 phys.org. ecology. “up to 50 pilot whales killed in faroese: activists”. http://phys.org/news/2016-07-whales-faroes-activists.html 16 laire de marco. “legal research strategy.” http://guides.library.harvard.edu/law/researchstrategy/primarysources; i made pasek diantha, “metodologi penelitian hukum normatif dalam justifikasi teori hukum.” jakarta: prenada media group, (2016): 149-151. http://phys.org/news/2018-06-whale-meat-poses-health-hazard.html http://phys.org/news/2016-07-whales-faroes-activists.html http://guides.library.harvard.edu/law/researchstrategy/primarysources udayana journal of law and culture vol. 3 no. 2, july 2019 188 norsemen and polar eskimos four thousand years ago. 17 whaling for aboriginal subsistence has been previously studied by scholars. jeremy firestone and jonathan lilley18 wrote an article concerning whaling by the makah indian nation. the studies show that whale hunting is makah peoples’ cultural heritage and state recognize their dependence as indigenous people on marine wildlife. they state that toward recognition of indigenous peoples’ self-determination and sovereignty will provide more principled models of how a pluralistic society and the norm of cultural diversity should accommodate indigenous culture, rights, and knowledge. another writer, sean patrick kerins 19 analyze whaling activities in faroe islands and demonstrate that the grindadrap provides resource users with significant incentives, through the provision of locally produced meat and blubber, so that they continue to commit themselves to conform to its operational rules, to monitor each other’s compliance, and continue to replicate the common property resource institution across generational boundaries. furthermore, he finds that grindadrap is an example of communitybased resource management at its best. one where the users themselves are provided with the opportunity and responsibility to manage their own resources; define their needs, goals, and aspirations; and to make decisions affecting their well-being. the faroese exhibit a high level of capability, responsibility and accountability in the management of their common property resource. the grindadráp is evolutionary, participatory and localespecific and considers the technical, ecological, socioeconomic and environmental issues impinging upon this geographically isolated community. ragnheiður bogadóttir and elisabeth skarðhamar olsen in their article have explored the symbolic and material dimensions of the deeprooted non-growth oriented practice of grindadráp in faroe island. they suggest a conceptualization of the grindadráp as a “colonial difference” that renders alternative lifeways and degrowth imaginable and contextually meaningful. the ongoing debates among and between faroese, and between faroese and protesters of pilot whaling have led faroese people to reflect upon the relevance and meaning that grindadráp has in their life. 17 william burns. the berlin initiative on strengthening the conservation agenda of the international whaling commission: toward a new era for cetaceans." rev. eur. comp. & int'l envtl. l. 13 (2004): 72-84; pamela r. stern. “historical dictionary of the inuit 2nd ed.,” the scarecrow press inc., united kingdom, (2013): xxiii. 18 jeremy firestone and jonathan lilley. "aboriginal subsistence whaling and the right to practice and revitalize cultural traditions and customs." journal of international wildlife law & policy 8, no. 2-3 (2005): 177-219. 19 sean patrick kerins, op.cit., 237-238. indigenous whaling tradition in faroe islands under international law olivia martha setyonugroho, i gede pasek eka wisanjaya, and made maharta yasa 189 2. result and analysis 2.1. the faroese are indigenous peoples under international law the right of person to freely participate in tradition or cultural life has shown in numerous international instruments,20 affirmed in declarations of states,21 and has practiced in several states constitutions.22 according to lubicon lake case, indigenous people defined as those “who have maintained their traditional economy and way of life and have occupied their traditional territory since time immemorial.”23 furthermore, in awas tigni case “indigenous peoples are defined as those social and human groups, culturally identified and who maintain a historical continuity with their ancestors…that historical continuity can be seen in their forms of organization, in their own culture, in their self-identification, and in the use of a language the origin of which is pre-hispanic.”24 awas tigni case is an inter-american court of human rights’ 2001 decision concerning the communal property rights of indigenous peoples and state’s obligation to protect those rights. its decision has helped advance the development of growing importance of human rights instruments to indigenous peoples in their efforts to protect their rights.25 its decision also holds important lessons for other indigenous communities facing similar battles for the recognition of their land and natural resource rights. as stated in kichwa case26 and rio negro case27 indigenous people also have the rights to self-identify themselves as indigenous people. several international law instruments, such as universal declaration of human rights (udhr), international covenant on economic, social, and cultural rights (icescr), international covenant on civil and political rights (iccpr), indigenous and tribal peoples convention of 1989 and the 20 universal declaration of human rights, art. 27; international covenant on economic, social, and cultural rights, art. 15(1)(a), art. 17; international covenant on civil and political rights, art. 27; international convention on elimination of all forms of racial discrimination, art. 5. 21 declaration on the rights of persons belonging to national or etnich, religious and linguistic minorities, art. 2(1), art. 2(2); declaration of the principles of international cultural co-operation, art. 4. 22 constitution of indonesia 1945, art. 28c(1); constitution of china 1982, art. 22; constitution of croatia 1990, art. 68; constitution of the slovak republic 1992, art. 42(3); constitution of south africa 1996, art. 30. 23 chief bernanrd ominyak and lubicon lake band v. canada, merits, hrc, communication no. 167/1984, 26 march 1990, para. 7. 24 case of the mayagna (sumo) awas tigni community v. nicaragua, judgement on merits and reparations, iacthr, series c no. 79, 30 august 2001, 23. 25 leonardo j. alvarado, 2007, prospects and challenges in the implementation of indigenous peoples' human rights in international law: lessons from the case of awas tingni v. nicaragua." ariz. j. int'l & comp. l. 24 (2007): 609-643. 26 kichwa indigenous people of sarayaku v. ecuador, iacthr, series c no. 245, 2012, para. 217. 27 caso masacres de rio negro v. guatemala, iacthr, series c no. 250, 2012, para 52. udayana journal of law and culture vol. 3 no. 2, july 2019 190 united nations declaration on the rights of indigenous peoples (undrip), acknowledge the indigenous peoples’ right.28 the udhr is an international declaration that recognize the fundamental human rights for all people and nations. in essence, the udhr guarantees the right to life,29 the right to an adequate standard of living,30 and the right to freely participate in the cultural life of the community.31 furthermore, article 6 – article 15 of icescr ensure that “everyone” has the right to food, clothing, shelter, and the right to take part in cultural life. the committee on economic, social, and cultural rights (cescr), whose interpretation of icescr under this court is deemed authoritative,32 has further explained that “everyone” involves individuals acting alone or in a group, such as indigenous peoples.33 this provision is affirmed in several jurisprudences.34 article 27 of iccpr also ruled that “in those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” moreover, the scope of cultural rights is rather broad, as specified in the united nations declaration on the rights of indigenous peoples (undrip), it involves the rights to cultural customs and traditions,35 as well as the rights to spiritual and religious traditions.36 the people of faroe islands’ shall be considered as indigenous people as they are living on the lands they inherited from their ancestor which is the faroe islands, and practicing their grindadrap tradition since thousands 28 united nations human rights office of the high commissioner. “indigenous peoples and the united nations human rights system.” human rights fact sheet no. 9/rev.2, geneva, (2013): 4-9; peter manus. “sovereignty, self-determination, and environment-based cultures: the emerging voice of indigenous peoples in international law.” wisconsin international law journal vol. 23, no. 4, (2012): 572575 29 udhr, art. 3. 30 udhr, art. 25. 31 rez gardi. “ from suppression to secession: kurds, human rights and the right to selfdetermination in turkey." ilsa j. int'l & comp. l. 24 (2017): 61-108. 32 legal consequences of the construction of a wall in the occupied palestinian territory, advisory opinion, 2004 icj 136, para. 112. 33 un commission on economic, social, and cultural rights, general comment no. 21, para. 9, un doc. e/c.12/gc/21. 34 aloeboetoe and others v. suriname, reparations, iacthr, series c no. 15, 1993, paras. 17, 58; plan de sanchez massacre v. guatemala, merits, iacthr, series c no. 105, 2004, para. 36(4); bamaca velazquez v. guatemala, reparations, iacthr, series c no. 91, 2002, para. 82; mahuika and others v. new zealand, views, human rights committee 70th session, 2000, para. 9.3. 35 undrip, art. 11(1). 36 undrip, art. 12. indigenous whaling tradition in faroe islands under international law olivia martha setyonugroho, i gede pasek eka wisanjaya, and made maharta yasa 191 of years ago.37 moreover, states parties to icescr and undrip should take measures to guarantee that the exercise of the right to take part in cultural life takes due account of the values of cultural life, which may be strongly communal or which can only be expressed and enjoyed as a community by indigenous peoples. therefore, since faroese is indigenous people, the international environmental law recognizes the special situation of indigenous peoples and their dependence on subsistence and cultural marine resources for selfdetermination. the following section of this writing addresses sources of international law that recognize indigenous peoples’ right to food from the marine environment. the three sources of international law that will be analyzed are: (1) international regulation concerning whaling (international convention for the regulation of whaling) (2) international environmental law (namely; the aboriginal subsistence exception in the convention on migratory species); and (3) international convention regarding endangered species (convention on international trade in endangered species of wild flora and fauna). 2.2. whaling in international law 2.2.1. grindadrap under the international convention for the regulation of whaling in 1982, the iwc established zero catch limits for all whaling, with two exceptions: aboriginal whaling and special permit scientific whaling under article viii of the international convention for the regulation of whaling (icrw). the persistence of the moratorium on commercial whaling 38 and japan’s scientific research whaling39 under the international convention for 37 catherine bennett. “sea of red: the faroe islands’ controversial whale-killing tradition”. france 24, https://observers.france24.com/en/20180803-faroe-islandscontroversial-whale-killing-grindadrap accessed on 19 february 2019; rachael revesz. “faroe islanders’ ritual slaughter of pilot whales turns sea blood red.” the independent, https://www.independent.co.uk/news/world/europe/faroe-islandsslaughter-pilot-whales-sea-blood-red-north-atlantic-iceland-denmark-ritualtradition-a7798436.html 38 international convention for the regulation of whaling art. xi(10), the schedule is an integral part of the icrw art. i(1). the schedule was last amended at the 65th annual meeting of the iwc in september 2014. at the moment, however, the iwc’s website only provides a link to the schedule as amended in 2012; international convention for the regulation of whaling, schedule art. iii(10)(e), dec. 2, 1946, 62 stat. 1716, 161 u.n.t.s. 72; the 2014 amendments can be found in iwc, 2014, summary of main outcomes, decisions and required actions from the 65th meeting, url: http://iwc.int/iwc65docs 39 between 1987 and 2001, the iwc has condemned japan’s so-called scientific whaling for failing to meet the criteria for scientific whaling and the iwc’s scientific committee has stated that japan’s scientific whaling does not provide data relevant to any critically important management purpose. see, e.g., iwc, resolution on whaling https://observers.france24.com/en/20180803-faroe-islands-controversial-whale-killing-grindadrap https://observers.france24.com/en/20180803-faroe-islands-controversial-whale-killing-grindadrap https://www.independent.co.uk/news/world/europe/faroe-islands-slaughter-pilot-whales-sea-blood-red-north-atlantic-iceland-denmark-ritual-tradition-a7798436.html https://www.independent.co.uk/news/world/europe/faroe-islands-slaughter-pilot-whales-sea-blood-red-north-atlantic-iceland-denmark-ritual-tradition-a7798436.html https://www.independent.co.uk/news/world/europe/faroe-islands-slaughter-pilot-whales-sea-blood-red-north-atlantic-iceland-denmark-ritual-tradition-a7798436.html http://iwc.int/iwc65docs udayana journal of law and culture vol. 3 no. 2, july 2019 192 the regulation of whaling (icrw)40 have dominated discussion within iwc for about three decades. further, in march 2014, a decision of the international court of justice (icj) ruled that japan’s antarctic whaling was not for purposes of scientific research. 41 however, the recent issue is regarding aboriginal subsistence whaling (asw). to understand the current whaling regime, it is necessary to briefly sketch the history of the iwc. the iwc is based on article iii of the icrw. the convention came into force on 10 november 1948. by 2018, icrw membership has risen to 89 members. at first, the icrw primarily concerned is to “provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry.” 42 in order to achieve these goals, it creates a commission, the iwc, 43 with the authority to adopt binding regulations “with respect to the conservation and utilization of whale resources.”44 the elementary part of the regulation is the schedule which outlines specific provisions and catches limits for specific regions and species. aboriginal subsistence whaling (asw) has been addressed in the icrw schedule. as noted above, the schedule is part of the treaty in every meaningful sense.45 when the icrw was negotiated and came into force, it is notable that the schedule explicitly provided an exception for aboriginal hunting of gray whales. the schedule provided that, “it is forbidden to take or kill gray or right whales, except when the meat and products of such under special permit in the north pacific ocean, iwc res. 2000-5 (2000); iwc, resolution on whaling under special permit in the southern ocean sanctuary, iwc res. 2000-5 (2000); iwc, resolution on whaling under special permit, iwc res. 1998-4 (1998); iwc, resolution on special permit catches in the north pacific by japan, iwc res. 1997-6 (1997); iwc, resolution on special permit catches in the southern ocean by japan, iwc res. 1997-5 (1997); iwc, resolution on special permit catches by japan, iwc res. 1996-7 (1996); iwc, resolution on special permit catches by japan in the southern hemisphere, iwc res. 1994-10 (1994); iwc, resolution on special permit catches by norway, iwc res. 1994-11 (1994); iwc, resolution on special permit catches by japan in the southern hemisphere, iwc res. 1993-7 (1993); iwc, resolution on special permit catches by japan in the southern hemisphere, iwc res. 1991appendix 2 (1991); iwc, resolution on special permit catches by japan in the southern hemisphere, iwc res. 1990-2 (1990); iwc, resolution on the proposed take by japan of whales in the southern hemisphere under special permit, iwc res. 1989-3 (1989); iwc, resolution on japanese proposal for special permits, iwc res. 1987-4 (1987); petition to certify japan pursuant to 22 u.s.c. § 1978 for trading in the meat of minke, bryde’s, and sperm whales from the north pacific and the southern hemisphere (nov. 14, 2000), url: http://law.lclark.edu/clinics/international_environmental_law_project/our_work/w haling 40 icrw, art. viii 41 whaling in the antarctic (australia. v. japan), 2014 i.c.j. 148, paras. 35-37. 42 last preamble paragraph of the icrw. 43 icrw, art. iii(1) 44 ibid., art. v(1) 45 ibid., art. i.1 http://law.lclark.edu/clinics/international_environmental_law_project/our_work/whaling http://law.lclark.edu/clinics/international_environmental_law_project/our_work/whaling indigenous whaling tradition in faroe islands under international law olivia martha setyonugroho, i gede pasek eka wisanjaya, and made maharta yasa 193 whales are to be used exclusively for local consumption by the aborigines.”46 from its inception, the icrw recognized the important role that whale products play in the nutritional and cultural life of some native peoples.47 over the next several decades, subsequent requests for aboriginal subsistence whaling of other whale species or stocks were handled in a similar fashion.48 nonetheless, since its creation, the icrw’s mandate has undoubtedly shifted from regulations of whaling fishery to a moratorium, or a complete ban, on commercial whaling. 49 the icrw implemented the moratorium through the iwc. in the early 1980s, the iwc created a special ad hoc workgroup to provide it with guidance on how to handle proposals for aboriginal subsistence whaling. the workgroup reached agreement on the following three definitions, which are relevant to the question of the status of faroese whaling: 50 a. “aboriginal subsistence whaling” means “whaling, for purposes of local aboriginal consumption, carried out by or on behalf of aboriginal, indigenous or native peoples who share strong community, familial, social and cultural ties related to a continuing traditional dependence on whaling and on the use of whales.” b. “local aboriginal consumption” means “the traditional uses of whale products by local aboriginal, indigenous or native communities in meeting their nutritional, subsistence and cultural requirements. the term includes trade in items which are byproducts of subsistence catches.” c. “subsistence catches” are “catches of whales by aboriginal subsistence whaling operations.” the efforts of the workgroup ultimately led the iwc to adopt a resolution in 1983 on aboriginal subsistence whaling and to establish a more formal aboriginal subsistence whaling subcommittee. in the resolution, the iwc stated that it “recognizes the importance and desirability of accommodating, consistent with effective conservation of whale stocks, 46 ibid., schedule, para 2. 47 iwc, “bowhead whale, qeqertarsuaq, greenland.” http://iwc.int/aboriginal (noting the two major objectives of iwc regulation of asw is to maintain healthy populations of whale and to allow aboriginal groups to maintain cultural practices of whaling). 48 alexander gillespie. aboriginal subsistence whaling: a critique of the inter-relationship between international law and the international whaling commission." colo. j. int'l envtl. l. & pol'y 12 (2001): 80. 49 monder khoury. “ whaling in circles: the makahs, the international whaling commission, and aboriginal subsistence whaling." hastings lj 67 (2015): 293-322. 50 iwc. “aboriginal/subsistence whaling (with special reference to the alaska and greenland fisheries).” 1983): 83. http://iwc.int/aboriginal udayana journal of law and culture vol. 3 no. 2, july 2019 194 the needs of aboriginal people who are dependent upon whales for nutritional, subsistence and cultural purposes.”51 in conclusion, the international community has recognized the special relationship between aboriginal peoples and marine mammals for at least 90 years, with increasing attention over time dedicated to ensuring that the needs of aboriginal peoples and the conservation and proper management of whale stocks are ensured and accommodated. 2.2.2. grindadrap tradition under the convention on migratory species (cms) 2.2.2.1. the government of denmark and faroe islands have acknowledged the importance of yak conservation cms obligates states to acknowledge the importance of migratory species being conserved 52 and avoid any migratory species becoming endangered. 53 such provision was acknowledged in pulp mills case 54 and blufin tuna case.55 on 19th june 1993, the grindamannafelagio or the faroese pilot whalers association was officially founded. 56 representatives from all authorized whaling bays were present and gave their unanimous support to the creation of the association. the association would formalize the exchange of information between whaling districts. the aims of the new organization, are:57 (1) to maintain and enhance pilot whaling in order to ensure a sustainable catch of pilot whales according to need; (2) to co-operate internationally with other organizations with similar objectives; (3) to inform about pilot whales and pilot whaling nationally and internationally; and (4) to support scientific projects about pilot whales and their living conditions. therefore, the establishment of the faroese pilot whalers association proven that denmark and faroe islands acknowledge the importance of pilot whale conservation. 51 office of the commission. “report of the thirty-fifth meeting of the international commission on whaling 38.” (1983): app. iii 52 cms, art. 2(1) 53 ibid, art. 2(2) 54 pulp mills on the river uruguay (argentina v. uruguay), judgment, icj rep. 2010, para. 262. 55 southern bluefin tuna (new zealand v. japan; australia v. japan), order, itlos rep. 1999, para 48. 56 sean patrick kerins, op.cit, 223. 57 ibid. indigenous whaling tradition in faroe islands under international law olivia martha setyonugroho, i gede pasek eka wisanjaya, and made maharta yasa 195 2.2.2.2. the whaling tradition in faroe islands is considered as an exception cms objective is to conserve habitat and protect migratory species threatened with extinction. 58 article 3(5)(a) and 3(5)(c) of the convention governs that exceptions may be made upon the prohibition of the taking of the endangered migratory species, on the grounds that the taking is for scientific purposes, 59 or the taking is to accommodate the needs of traditional subsistence users of such species.60 as submitted supra, faroese as indigenous peoples still need the whales to maintain their traditional subsistence. the grindadrap is a tradition, not a ritual. a tradition is a cultural element passed through generations,61 on the other hand, a ritual is a procedure or collection of processes relating to a rite or ceremony.62 in the case at hand, there is no ceremony or rite attached to the hunts, because for the past 1000 years the sole purpose of grindadrap has always been to provide the local community with food. the mountainous islands and harsh conditions of the faroe island are largely unfit for agriculture, therefore pilot whales were instrumental to faroese survival. it is also important to note that whale meat does still represent about a quarter of the meat consumption in the faroes, and as such remains economically significant.63 moreover, denmark as a state party to this convention has authorized the faroese to practice their tradition for decades. thus, the hunting of the whale in faroe islands is justifiable. 2.2.3. grindadrap under the convention on international trade in endangered species of wild flora and fauna up to present, there are 183 state parties to the convention on international trade in endangered species of wild flora and fauna (cites).64 the aim of the agreement is to control or prohibit trade in species 58 malcolm d. evans, loc.cit. 59 philip j. j. drost. “multilateral environmental agreements: states of affairs and developments.” eleven international publishing, (2008): 405-406. 60 united nations environment programmed (unep). handbook of environmental law, (1997): 166. 61 nwoye charles egbo. “traditions and customs in community development: the case of nkanu west and nkanu east local government areas of enugu state, nigeria”, journal of education and practice vol.7 no.18, (2016): 120-121. 62 meg jerrad, “understanding the faroe islands grindadrap”, https://www.mappingmegan.com/understanding-faroe-islands-grindadrap/ 63 megan jerrard. “whale hunting in the faroe islands has received a bad reputation. but here’s what social media is getting wrong”, https://matadornetwork.com/life/whale-hunting-faroe-islands-received-badreputation-heres-social-media-getting-wrong/ 64 cites, list of contracting parties. https://cites.org/eng/disc/parties/chronolo.php https://www.mappingmegan.com/understanding-faroe-islands-grindadrap/ https://matadornetwork.com/life/whale-hunting-faroe-islands-received-bad-reputation-heres-social-media-getting-wrong/ https://matadornetwork.com/life/whale-hunting-faroe-islands-received-bad-reputation-heres-social-media-getting-wrong/ https://cites.org/eng/disc/parties/chronolo.php udayana journal of law and culture vol. 3 no. 2, july 2019 196 or their products where those species are in danger of extinction.65 cites is legally binding instrument that needs to be adopted into the domestic legislation of the state parties, and further, to be implemented.66 the pilot whale is listed in appendix ii, meaning that international trade in the products derived from them is very limited.67 the faroe islands is part of the kingdom of denmark, but for whaling issue (and many more) the indigenous faroese are autonomous from the government of denmark. 68 even though they issue the permit for whale hunting, while denmark itself does not, there is no evidence of any commercialization of whale by the people of faroe islands. the pilot whale meat harvested during the grindadrap is mainly distributed for free to the faroese community and does not enter into market.69 therefore, it is proven that grindadrap tradition is lawful under cites. 2.3. legal obligation of denmark in respect of the whaling activities in faroe islands article 1(2) of international covenant on civil and political rights (iccpr), article 1(2) of icescr, article 3 of convention on biological diversity (cbd), and preamble of nagoya protocol recognize that states shall have sovereign rights to exploit their own resources. this rule was acknowledged in north sea case70 and volga case.71 furthermore, the concept of a state’s sovereignty over its natural resources is rooted in the old principle of territorial sovereignty, that the right of peoples and nations to permanent sovereignty over their natural resources and wealth must be exercised in the interest of their national development, and of the well-being of the people of the state.72 the consequence, of the existence of sovereign rights over wild animals is that states have exclusive jurisdiction ratione loci over them in all areas under their jurisdiction and no jurisdiction outside their national jurisdictional limits, of sovereignty over natural resources is considered a universal principle of international law, 73 and has been elevated to the 65 malcolm d. evans. “international law 2nd edition.” oxford university press, united states, (2006): 680. 66 ibid, p. 681. 67 cites, appendix i, ii, iii 68 ian hurd, https://blogs.lse.ac.uk/europpblog/2013/02/18/whaling-europe-eu-norwayiceland-greenland-faroe-islands0cites-international-whaling-commission 69 margherita. “faroe islands grindadrap – understanding faroese perspective”. https://www.thecrowdedplanet.com/faroe-islands-grindadrap-faroese-perspective/ 70 north sea continental shelf (federal republic of germany v. denmark; federal republic of germany v. netherlands), icj rep. 1969, para 19. 71 volga (russian federation v. australia), judgment, itlos rep. 2002, paras. 76, 79. 72 max valverde soto. “ general principles of international environmental law." ilsa j. int'l & comp. l. 3 (1996): 193-209. 73 klemm c. de. “migratory species in international law.” 29 nat. resources j. 935, (1989): 936. https://blogs.lse.ac.uk/europpblog/2013/02/18/whaling-europe-eu-norway-iceland-greenland-faroe-islands0cites-international-whaling-commission https://blogs.lse.ac.uk/europpblog/2013/02/18/whaling-europe-eu-norway-iceland-greenland-faroe-islands0cites-international-whaling-commission https://www.thecrowdedplanet.com/faroe-islands-grindadrap-faroese-perspective/ indigenous whaling tradition in faroe islands under international law olivia martha setyonugroho, i gede pasek eka wisanjaya, and made maharta yasa 197 status of jus cogens. as a result, animals that migrate from one jurisdiction to another are subject, in succession, to the sovereign rights and jurisdiction of all the states along their migration route.74 moreover, denmark is a signatory to several international conventions such as iccpr, which recognizes in article 27 the right of minority groups to the protection of “all those characteristics that are necessary for the preservation of their cultural identity.” article 27 stipulates that “in those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” the un human rights committee, formed under the iccpr, has confirmed that for indigenous groups, such as the awas tingni, traditional land possession is an aspect of the enjoyment of its culture protected by article 27 of the iccpr, “culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. that right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law.” denmark has also undertaken responsibilities under the international convention on the elimination of all forms of racial discrimination. this convention focuses on the right to equality and, in particular, it obliges states parties to eliminate any form of racial discrimination. as has already been observed, the principle of non-discrimination has particular significance when it concerns indigenous peoples and the maintenance of their traditional or customary forms of land possession. as a result, within its mandate of safeguarding the fulfillment of the aforementioned convention, the un committee on the elimination of racial discrimination “calls upon the states parties to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories, and resources and where they have been deprived of their lands…or used without their free and informed consent, to take steps to return those lands and territories.” article 25 and article 26(2) of undrip also ruled that indigenous people have the right to own, use, develop and control the lands, territories, waters, coastal seas, and resources that they possess to uphold their responsibilities to future generations. faroe islands as a part of the kingdom of denmark is the providing party of the pilot whales, noting that pilot whale is a migratory species, and the hunting is conducted within the territory of faroe islands. providing 74 klemm c. de, loc.cit. udayana journal of law and culture vol. 3 no. 2, july 2019 198 party is a state or other parties of origin that acquired and supplied the concerned resources.75 thus, shows that faroe islands have sovereign rights to exploit pilot whale which is faroe islands’ resources. therefore, denmark has no legal obligation to end whaling tradition by the people of faroe islands as the faroese are indigenous people who have practiced such tradition for decades in its territory. additionally, denmark has a legal obligation to ensure the right of the faroese to their culture and traditional subsistence are enjoyed. 3. conclusion and recommendation 3.1. conclusion the grindadrap tradition in faroe islands is lawful according to undrip, iccpr, and icescr, because as an indigenous peoples, faroese have a right to practice their tradition and cultural life. furthermore, the tradition is lawful under the cites because there is no prove regarding the international trade of the whale meat/products, and does not contravene the cms and icrw because the whaling activities is considered as exception, which is to accommodate the needs of traditional subsistence. moreover, denmark has no obligation to end whaling activities in faroe islands because as the providing party of the pilot whale, faroe islands enjoy the sovereign rights to use and develop the pilot whale as their resources including the whaling in their territory. 3.2. recommendation it is recommended for the government of denmark and faroe islands to establish authorization procedures, commitments to environmental standards, ways to access information, the use of penalties, and the need to carry out environmental impact assessments. it is also proposed for the relevant agencies in denmark to actively monitor and control the number of whales hunted in grindadrap tradition to prevent over whaling of the pilot whale. bibliography books diantha, i. made pasek. metodologi penelitian hukum normatif dalam justifikasi teori hukum. jakarta: prenada media group, 2016 drost, philip j. j., “multilateral environmental agreements: states of 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https://matadornetwork.com/life/whale-hunting-faroe-islandsreceived-bad-reputation-heres-social-media-getting-wrong/ petition to certify japan pursuant to 22 u.s.c. § 1978 for trading in the meat of minke, bryde’s, and sperm whales from the north pacific and the southern hemisphere. http://law.lclark.edu/clinics/international_environmental_law_projec t/our_work/whaling phillip budgen. news. “what is grindadrap and why is whaling in the faroe islands so controversial”. https://www.lifegate.com/people/news/what-is-grindadrap-why-is-itcontroversial sscs, about the campaign, grindstop 2014: defending dolphins in the faroe islands. http://www.seashepherd.global/grindstop/aboutcampaign/about-the-campaign.html sscs, sea shepherd launches pilot whale defense campaign. operation grindstop 2014, at press conference in the faroe islands. http://www.seashepherd.global/news-and-media/news-1406171.html stuart winter. “we kill whales because its communal, natural, and suistanable say faroe islands 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https://blogs.lse.ac.uk/europpblog/2013/02/18/whaling-europe-eu-norway-iceland-greenland-faroe-islands0cites-international-whaling-commission http://iwc.int/aboriginal http://projectearth.us/on-the-faroe-islands-killing-hundreds-of-whales-every-1796848516 http://projectearth.us/on-the-faroe-islands-killing-hundreds-of-whales-every-1796848516 https://www.thecrowdedplanet.com/faroe-islands-grindadrap-faroese-perspective/ https://www.thecrowdedplanet.com/faroe-islands-grindadrap-faroese-perspective/ https://www.mappingmegan.com/understanding-faroe-islands-grindadrap/ https://www.mappingmegan.com/understanding-faroe-islands-grindadrap/ https://matadornetwork.com/life/whale-hunting-faroe-islands-received-bad-reputation-heres-social-media-getting-wrong/ https://matadornetwork.com/life/whale-hunting-faroe-islands-received-bad-reputation-heres-social-media-getting-wrong/ http://law.lclark.edu/clinics/international_environmental_law_project/our_work/whaling http://law.lclark.edu/clinics/international_environmental_law_project/our_work/whaling https://www.lifegate.com/people/news/what-is-grindradap-why-is-it-controversial https://www.lifegate.com/people/news/what-is-grindradap-why-is-it-controversial http://www.seashepherd.global/grindstop/about-campaign/about-the-campaign.html http://www.seashepherd.global/grindstop/about-campaign/about-the-campaign.html http://www.seashepherd.global/news-and-media/news-140617-1.html http://www.seashepherd.global/news-and-media/news-140617-1.html http://www.express.co.uk/news/nature/599187/we-kill-whales-because-communal-natural-and-suistanable-faroe-islands-officials http://www.express.co.uk/news/nature/599187/we-kill-whales-because-communal-natural-and-suistanable-faroe-islands-officials https://www.faroeislands.fo/people-society/people-of-the-faroe-islands/population/ https://www.faroeislands.fo/people-society/people-of-the-faroe-islands/population/ http://www.spectator.co.uk/2014/02/why-we-should-let-faroe-islanders-hunt-whales/ http://www.spectator.co.uk/2014/02/why-we-should-let-faroe-islanders-hunt-whales/ indigenous whaling tradition in faroe islands under international law olivia martha setyonugroho, i gede pasek eka wisanjaya, and made maharta yasa 203 thesis/dissertation kerins, sean patrick. “whaling in the faroese.” thesis (phd doctorate), griffith school of environment, 2008 other office of the commission, 1983, report of the thirty-fifth meeting of the international commission on whaling 38, app. iii e-issn 2549-0680 vol. 6, no. 1, january 2022, pp. 42-61 doi: https://doi.org/10.24843/ujlc.2021.v06.i01.p03 this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licenses/by/4.0/), 42 prison overcrowding: alternative sentencing in indonesia’s draft criminal code and its consequences on correctional system nadia utami larasati* criminology department, faculty of social and political sciences, universitas budi luhur, jakarta, indonesia fahlesa munabari** international relations department, faculty of social and political sciences, universitas budi luhur, jakarta, indonesia untung sumarwan*** criminology department, faculty of social and political sciences, universitas budi luhur, jakarta, indonesia abstract imprisonment is often the most preferred choice of punishment in the eyes of law enforcement officers. as a result, prison overcrowding is inevitable and leads to the emergence of various problems in prisons. the discourse of alternative sentencing has recently gained increasing prominence in the indonesian public with a view to addressing such problems amid the ongoing review of the draft criminal code (rancangan kitab undang-undang hukum pidana/ rkuhp). this article aims to analyze alternative sentencing in the form of community service and probation penalties. it discusses the role and strategic measures taken by the indonesian correctional system related to the performance of community correctional counselors in order to prepare for the implementation of alternative sentencing in the future. employing a qualitative method, this study shows that alternative sentencing is principally in line with the concept of social reintegration and the philosophy of the current indonesian correctional institution (lembaga pemasyarakatan). the correctional system in the country has also begun to take strategic measures to respond to the future implementation of the alternative sentencing in the rkuhp by means of updating the legal framework and improving infrastructure as well as the quality of human resources in accordance with the framework of community-based corrections. keywords: alternative sentencing; community correctional counselor; correctional system; prison overcrowding; social reintegration. 1. introduction 1.1. backgrounds the increase in the population of inmates is always much faster than the growth of the occupancy capacity of the prison itself. the construction of new prisons has never been able to accommodate the increasing number of * email: nadia.utamilarasati@budiluhur.ac.id ** email/corresponding author: fahlesa.munabari@budiluhur.ac.id ***email: untung.sumarwan@budiluhur.ac.id mailto:nadia.utamilarasati@budiluhur.ac.id mailto:fahlesa.munabari@budiluhur.ac.id mailto:untung.sumarwan@budiluhur.ac.id prison o vercrowding: alternative sentencing in indonesia’s draft criminal code and its consequences on correctional system nadia utam i larasati, fahlesa munabari, untung sumarwan 43 convicts.1 based on data from the world prison population list, since 2000, the total population in prisons in the world has increased by 24% or equal to the estimated world population growth in the same period. the largest increase in the population of prison inmates was in oceania, while in other continents such as europe, the number of prison inmates has decreased by 22%. in asia, the prison population showed an increase of 38%, as shown in the following graph.2 figure 1. percentage increase in prison populations in 5 continents in the year 2000s source: walmsley.3 the increase in the number of imprisoned criminals is inextricably linked to the tradition of the criminal justice system adopted by law enforcement officers, that is, imposing imprisonment for criminals. imprisonment is a decision that is often chosen by judges, not only for serious crimes but also for crimes with light penalties. 4 this ultimately contributed greatly to prison overcrowding. this automatically brings a domino effect of other problems. prison is like a crime school in which novice criminals can learn from their seniors who are more experienced as criminals, and then after being released they will recommit another crime.5 prisoners experience deprivation or a decrease in quality of life because prisons find it difficult to meet the living needs of prisoners whose numbers are greater than the budget provided by the state.6 1 steven raphael, “how do we reduce incarceration rates while maintaining public safety,” criminology & pub. pol’y 13, (2014): 579. 2 roy walmsley, world prison population list (home office london, 2003), 2. 3 ibid. 4 mike hough, jessica jacobson, and andrew millie . the decision to imprison: sentencing and the prison population (london: south bank university, 2003), 37. 5 clarke r jones, “are prisons really schools for terrorism? challenging the rhetoric on prison radicalization,” punishment and society 16, no. 1 (2014): 74-103. 6 morag macdonald, “overcrowding and its impact on prison conditions and health,” international journal of prisoner health 14, no. 2 (2018): 65–68. udayana journal of law and culture vol. 6 no.1, january 2022 44 the problem of an increasing number of the prison population in various worlds mentioned above also occurs in indonesia. the indonesian correctional institution (lembaga pemasyarakatan) has an unequal percentage of the number of occupants and the number of prison occupancy. within 5 years from 2015 to 2019, there has been a significant increase in the prison population, from 36.19% in 2015 to more than 100% in 2019. table 1. increase in the population of prisoners in indonesia (2016-2019) no. year prisoners convicts total occupancy (to) occupancy capacity (oc) the difference betw een to and oc percentage of excess occupancy 1. 2015 55,929 118,449 174,378 128,040 46,338 36.19% 2. 2016 66,749 130,907 197,656 128,040 69,616 54.37% 3. 2017 69,643 154,961 224,604 128,040 96,564 75.41% 4. 2018 73,872 176,060 249,932 128,040 121,892 95.19% 5. 2019 66,657 197,590 264,247 128,040 136,207 106.37% source: database system of directorate of corrections of indonesia (available on its website: http://smslap.ditjenpas.go.id/) therefore, the indonesian correctional institution is often confronted with many problems, ranging from violence between inmates, homosexuality, riots to failure to protect the rights of inmates, all of which leads to ineffective inmates mentoring in prisons so that crimes are consequently ofte n recommitted in society.7 the current situation of prison overcrowding places indonesia at a vulnerable stage with an overcrowding percentage of 188%. this in turn creates various problems such as the escape of inmates, riots, narcotics circulation controlled from within prisons, burning of prisons by inmates, illegal fees by prison officers, and other issues. these problems are triggered by some factors such as the errors or mistakes of prison officers in the correct implementation of correctional guidelines, the lack of facilities and infrastructure, and the ineffective implementation of the prison system.8 the aforementioned problems have in turn made alternative sentencing increasingly prominent in virtually all legal systems in the world, including indonesia. alternative sentencing is considered one of the most effective solutions in overcoming various problems that exist in prisons. adding prison facilities can hardly solve the problems because 7 ismail rumadan, “problem lembaga pemasyarakatan di indonesia dan reorientasi tujuan pemidanaan,” jurnal hukum dan peradilan 2, no. 2 (2013): 263–76. 8 leopold sudaryono. drivers of prison overcrowding in indonesia (new york: routledge, 2020), 11; institute for criminal justice, “strategies to reduce overcrowding in indonesia: causes, impacts, and solutions,” 2018, 112. http://smslap.ditjenpas.go.id/ prison o vercrowding: alternative sentencing in indonesia’s draft criminal code and its consequences on correctional system nadia utam i larasati, fahlesa munabari, untung sumarwan 45 imprisonment is still the most preferred choice of punishment in the eyers of law enforcement officers in indonesia.9 the united nations (un) minimum standards for non-custodial measures, which is also known as the tokyo rules, also encourages alternatives to imprisonment as a measure to reduce prison overcrowding and accelerate the need for the social reintegration of inmates. the alternative sentencing in this context is in the form of community service and probation penalties. 10 alternative sentencing is defined as a form of punishment outside the prison that takes form of a fine or community service from 3 months to one year in community service centers. this program can be in the form of training or placement in certain professional centers. the objective of this alternative sentencing is to overcome the problem of prison overcrowding and other problems that arise from it. this form of criminal punishment is often referred to as a new model in the concept of social control.11 in western countries, studies and implementation of alternative sentencing have bee n done for quite some time.12 alternative sentencing is often found in various other terms such as “alternative to imprisonment”, “non-custodial measures”, and “alternative sanctions”.13 seventy percent of criminals in prison only need to be placed in community-based development activity centers. in other words, these are criminals with short-term punishment categories. placing convicts in prisons will only create various prisons’ problems. 14 this is emphasized by a study conducted by chaerudin,15 which argues that imprisonment is considered less effective since convicts do not become better people by serving imprisonment. similarly, if the prison sentence is imposed on children and adolescents, their chance of recommitting another crime upon the completion of t heir 9 barda nawawi arief muladi and barda nawawi arief. teori-teori dan kebijakan pidana (bandung: alumni press, 1998), 47; iskandar wibawa, “pidana kerja sosial dan restitusi sebagai alternatif pidana penjara dalam pembaharuan hukum pidana indonesia,” jurnal media hukum 24, no. 2 (2017): 105–14. 10 ann skelton, “alternative sentencing review,” cspri research paper series, no. 6 (2004): 17. 11 lynn geurin, melanie d otis, and david royse, “increasing alternative sentencing in the juvenile justice system through a partnership between public defenders and social workers,” journal of forensic social work 3, no. 3 (2013): 261–77. 12 semisch courtney. alternative sentencing in the federal criminal justice system (washington d.c.: government printing office, 2015), 1; james pitts ma, et al., “contemporary prison overcrowding: short-term fixes to a perpetual problem,” contemporary justice review 17, no. 1 (2017): 124-139. 13 novian et al., “strategies to reduce overcrowding in indonesia: causes, impacts, and solutions”, 168. 14 milton burdman, “realism in community-based correctional services,” the annals of the american academy of political and social science 381, no. 1 (1969): 71–80. 15 chaerudin, “masalah prisonisasi dalam hubungannya dengan sistem pemasyarakatan: studi pada lembaga pemasyarakatan cipinang jakarta” (master’s thesis, de partment of law university of indonesia, 1995), 85. udayana journal of law and culture vol. 6 no.1, january 2022 46 prison term will even be greater. this is because prisons are also believed to be facilities that can reproduce crime.16 based on the cost-benefit analysis, imprisonment is also considered to be a financial burden for the state budget. this is because when a person is sentenced to prison, the government is obliged to bear the basic needs of the inmates for 24 hours a day and 365 days a year during the prison term. the state also covers the cost of health care and treatment when the inmates are sick. this factor makes the correctional budget expensive. basically, prisons are not designed with adequate physical and mental health care mechanisms. 17 in indonesia, limitations in meeting basic needs often prompt the desire of certain inmates to solicit luxuri ous facilities in prisons. the financial advantages possessed by these inmates facilitate the flourishing of fraudulent actions aimed to solicit such facilities, which should never be available in correctional institutions.18 in some countries, alternative sentencing has been implemented as part of community-based corrections (cbc). through the lens of a labelling theory, the concept of cbc is a form of coaching program for prisoners or law violators that are aimed at avoiding them from being ostracized by the community they belong to.19 snarr and wolford argue that in the united states of america, the concept of cbc has been highly adopted and is in line with the concept of social reintegration. therefore, all activities involving the community that is carried out to reunite or reintegrate prisoners with the community can be interpreted as cbc.20 the concept of cbc has started since 1950s with a view to supporting the development of a new concept of punishment. based on the report of the united nations on drugs and crime (unodc) published in 2007, several countries have succeeded in implementing cbc. several factors must be heeded by institutions that implement this form of punishment, such as (1) basic knowledge of alternative sentencing, (2) political initiatives, (3) the improvement of laws and regulations, (4) infrastructure and resources, (5) supervision, and (6) public outreach. in the current draft criminal code (rancangan kitab undang-undang hukum pidana, abbreviated as rkuhp), there are two new alte rnative forms of punishment other than imprisonment, which are community service and 16 joanna shepherd, “the imprisonment puzzle: understanding how prison growth affects crime,” criminology & public policy 5, no. 2 (2006): 285–98. 17 jude uchenna okoye, “imprisonment in nigeria: a comparative study," unizik law journal 15, (2020): 13. 18 y a ohoiwutun and samsudi samsudi, “menalar sel mewah di lembaga pemasyarakatan,” masalah-masalah hukum 24, no. 1 (2017): 48-54. 19 aditya nugraha, “konsep community based corrections pada sistem pemasyarakatan dalam menghadapi dampak pemenjaraan,” jurnal sains sosio humaniora 4, no. 1 (2020): 141–51. 20 richard w snarr and bruce i wolford. introduction to corrections (wm. c. brown, 1985), 103. prison o vercrowding: alternative sentencing in indonesia’s draft criminal code and its consequences on correctional system nadia utam i larasati, fahlesa munabari, untung sumarwan 47 probation penalties.21 these two alternatives are not found in the colonial legacy of the existing criminal code (kuhp).22 community service penalty in this context should not contain any commercial aspects. therefore, its implementation is purely aimed at realizing the theory of restorative justice.23 the criminal code bill is currently under discussion in the house of representatives of the republic of indonesia and is expected to be passed soon to replace the colonial legacy of the criminal code. against this background, the correctional institution as the administrator of the punishment needs to be prepared for the consequences of this alternative sentencing. this will have an impact on changes and additions to the functions of the correctional institution. based on the experience of several countries that have implemented this alternative sentencing, the costs incurred by the state will be less compared to imprisonment, and it also provides inmates with more humane treatment. however, there is still a possibility that inmates who receive this alternative sentencing cannot be accepted by the community, particularly if the implementation of the alternative sentencing is not carried out transparently and fairly based on the perspective of victims.24 against the background of issues revolving around the implementation of alternative sentencing discussed above, this study aims to analyze alternative sentencing in the form of community service and probation penalties according to the current indonesia’s rkuhp. the level of analysis in this study is focused on several factors that should be heeded and implemented by the indonesian correctional system, which are the reform of laws and regulations as well as the readiness of infrastructure and resources. 1.2. method this study employed a qualitative method. this method is chosen because it can draw a better understanding of the reality in the field than the quantitative method. furthermore, a qualitative approach is believed to be able to reveal a variety of social aspects that are difficult to capture through statistical figures. 25 this study was conducted through several stages as follows: a literature review and initial observation, preparation of 21 draft criminal code of 2019, art. 65. 22 law no. 1 of 1946 concerning criminal code, art. 10. 23 iqrak sulhin, “correctional governance: an indonesian experience,” 2010; jamin ginting, “sanksi kerja sosial sebagai alternatif bentuk pemidanaan dalam sistem hukum di indonesia,” law review 19, no. 3 (2020): 246–67. 24 united nations office on drugs and criminal, “handbook of basic principles and promising practices on alternatives to imprisonment,” 2017, 24. 25 william lawrence neuman. workbook for neumann social research methods: qualitative and quantitative approaches (allyn & bacon, 2006), 113. udayana journal of law and culture vol. 6 no.1, january 2022 48 data collection instruments, data and information collection, and data processing as well as analysis. data collection was carried out through a literature study by reading the latest rkuhp and having discussions with practitioners regarding the dynamics of the development of the rkuhp. journal articles, books, legal documents, and other legislation were included as reference sources, particularly regarding the implementation of alternative sentencing applied in other countries. the field data of this study were also obtained through interviews with officials at the directorate general of corrections. in this study, the interviews conducted were unstructured, because even though the researchers had an interview guide, the interview process in the field did not depend solely on this guideline. the interview revolved around the extent to which the indonesian correctional system has prepared legislation, infrastructure, and resources in anticipation of the implementation of the rkuhp in the future. in interviews, researchers continue to develop the “logic in practice” technique, which is the development of research questions based on the results of field data found to anticipate developing facts or questions that might not have been stated in the list of questions. data analysis was carried out by verbatim analysis in which the data were analyzed based on the results of interviews. these data were then categorized according to the perspective of cbc as the theoretical perspective employed in this study. 2. result and analysis 2.1. alternative sentencing and community-based corrections the implementation of alternative sentencing has received considerable attention at the international level. this is evidenced by the recommendation of the 6th united nations congress in 1980 held in caracas that specifically discussed the topic of deinstitutionalization of punishment.26 the main purpose of alternative sentencing is to overcome the problem of prison overcrowding. sudirman argues that efforts to deal with the prison overcrowding do not have to be addressed by burdening the state budget, such as building new prison facilities or detention centers.27 several solutions can be categorized as low-cost programs, for example, the “front end” policy or prison avoidance programming and the “back end” alternative policy. the “front end” or prison avoidance programming can be done through several ways, such as providing alternative punishment (restitution), conditional punishment, intensifying forms of house arrest or 26 muladi and arief, op.cit, 97. 27 didin sudirman. reposisi dan revitalisasi pemasyarakatan dalam sistem peradilan pidana di indonesia (jakarta: pusat pengkajian dan pengembangan kebijakan departemen hukum dan hak asasi manusia ri, 2007), 77. prison o vercrowding: alternative sentencing in indonesia’s draft criminal code and its consequences on correctional system nadia utam i larasati, fahlesa munabari, untung sumarwan 49 city detention, and providing alternative sentencing. meanwhile, the “back end” alternatives can be carried out through parole and granting remissions. correctional system is a criminal policy that is part of social management. social management carried out through this correctional system can be divided into imprisonment policies and non-imprisonment policies. this non-imprisonment policy is called deinstitutionalization. deinstitutionalization of punishment by the sub-systems of the criminal justice system outside the correctional system can be implemented through the forms of discretion, diversion, restorative justice, and decisions on probation or community service by the court. meanwhile, deinstitutionalization of punishment by the correctional system takes the forms of parole and community-based forms of punishment such as cbc.28 cbc can be defined as a non-institutional punishment programs for criminals. the following are some fundamental aspects of cbc: 1. efforts that are made to divert perpetrators of violations from criminal justice system or prosecution in prisons; 2. programs that set limits for criminals while in the community; 3. efforts that are made to expedite the process of transitioning ex-convicts from prisons to their freedom.29 all programs of cbc aim to protect communities and rehabilitate convicts and reintegrate them into society. these objectives can be achieved at a fraction of the cost of imprisonment. furthermore, cbc also holds that punishment should be proportional, i.e., not too heavy but not too light. the cbc also allows a set of sanctions and programs that equal the punishment and the crime committed by convicts.30 2.2. alternative sentencing in the draft criminal code alternative sentencing has been existing in several laws and regulations in indonesia, such as the criminal code, the juvenile criminal justice system act, and the narcotics law, as presented in the following table: 28 minister of law and human rights regulation no. 40 of 2018 concerning the blueprint for the revitalization of the implementation of indonesian correctional institution (2019-2023), 8. 29 belinda rodgers mccarthy, bernard j mccarthy, and matthew c leone. community-based corrections (wadsworth publishing company, 1997), 33. 30 ibid. udayana journal of law and culture vol. 6 no.1, january 2022 50 table 2. alternative sentencing in indonesian legislation alternative sentences mentioned in criminal fines criminal code conditional sentences (house arrest) rehabilitation law no. 35 of 2009 concerning narcotics31 crime warning law no. 11 of 2012 concerning the juvenile criminal justice system32 job training conditional sentences (house arrest) source: gathered from various laws and regulations however, in practice, the implementation of these alternative forms are not effective. for example, regarding fines, the criminal code does not stipulate a time limit for paying fines, and if a defendant declares that he or she is unable to pay the fine, the fine can be replaced with maximum imprisonment of eight months. furthermore, fines cannot be effectively imposed because the value of the fines stipulated in the criminal code is significantly under-valued based on the current value of the indonesian rupiah. 33 similarly, regarding a conditional sentence, although there are provisions in the criminal code, it is rarely practiced by law enforcement officers. this is due to the implementation of regulations in indonesia that tend to impose imprisonment rather than the conditional sentence. furthermore, there is a widely held assumption in indonesian society that a conditional sentence is not considered a form of punishment because it does not have a deterrent effect for the perpetrators of crime.34 it is against the aforementioned background that the current rkuhp contains important changes, particularly those related to the purpose of sentencing and principal criminal sanction. in the existing draft, there is a strong commitment to reduce dependence on imprisonment. there are at least 15 clauses in the draft that stipulate that imprisonment should be imposed under certain conditions, such as in the case where the defendant is a child; the defendant is over 75 years old; the defendant commits a crime for the first time, and several other requirements.35 31 law no. 35 of 2009 concerning narcotics, art. 127. 32 law no. 11 of 2012 concerning juvenile criminal justice system, art. 71. 33 novian, et al., op.cit., 77; supreme court regulation no. 2 of 2012 concerning settlement of minor crime limits and amount of fines in the criminal code. 34 surastini fitriasih, “pidana pengawasan dalam konsep rancangan kuhp: suatu analisis mengenai penyempurnaan pidana bersyarat” (master’s thesis, department of law university of indonesia university of indonesia, 1997), 68. 35 draft criminal code of 2019, art. 70. prison o vercrowding: alternative sentencing in indonesia’s draft criminal code and its consequences on correctional system nadia utam i larasati, fahlesa munabari, untung sumarwan 51 regarding principal criminal sanction, in the latest draft of the rkuhp, 3 types of non-imprisonment are regulated, namely fines, community service, and probation. of these three alternative forms of criminal sentences, community service and probation are the new forms of sentences and therefore serve as the focus of discussion in this study. the probation penalty as stipulated in article 76 of the rkuhp is imposed for a maximum period equal to imprisonment penalty of not more than 3 years with general conditions, such as the convict will not commit the crime again. in addition to these general requirements, there are also special requirements that must be met as follows: a. the convict within a certain period that is shorter than the probation penalty period must compensate all or part of the losses incurred as a result of the crime; and/or b. the convict must do or not do something without sacrificing religious and political freedom. when the convict violates the general conditions mentioned above, the convict is obliged to serve a prison term of no more than the imprisonment penalty for the crime committed. likewise, when the convict violates the special conditions, the convict can be proposed to serve imprisonment or have his probation period extended. community service penalty, as explained in article 85 of the rkuhp, is imposed on defendants who commit crimes punishable by imprisonment of fewer than 5 years, and the judge imposes maximum imprisonment of 6 months or a maximum fine of the second category. fines in the second category, as regulated in article 79 of the rkuhp, are fines with a maximum nominal value of idr 10 million. furthermore, the community service penalty cannot be commercialized and is imposed for a minimum of 8 hours and a maximum of 240 hours. in imposing a community service penalty on a defendant, the judge is obliged to consider matters such as the defendant’s confession regarding the committed criminal act; the ability of the defendant to work; the defendant’s approval regarding the objectives, and all matters relating to community service penalty; social history of the defendant; work safety protection; religious and political beliefs; as well as the ability of the defendant to pay criminal fines. udayana journal of law and culture vol. 6 no.1, january 2022 52 table 3. provisions on community service and probation penalties in the draft criminal code types of sentences articles in the rkuhp sentencing criteria in case of violation probation article 76 the maximum is equivalent to a prison sentence of not more than 3 years. the convict is obliged to:  serve a prison sentence that is not longer than the imprisonment penalty for the crime;  extend the probation period. community service article 85 criminal offenses are punishable by imprisonment of fewer than 5 years and the judge imposes maximum imprisonment of 6 months or a maximum fine of the second category. the convict must:  re-do all or portion of the community service penalty;  serve all or part of the jail sentence that is being substituted by community service penalty;  pay all or part of the criminal fine . source: draft criminal code of 201936 2.3. the strategic role of the indonesian correctional system in response to alternative sentencing in the draft criminal code the existence of community service and probation in the rkuhp as an alternative form of imprisonment is a welcome initiative in the eyes of the indonesian correctional system. this policy plan is expected to unravel t he complex problems of prisons, one of which is overcrowding. for this purpose, the indonesian correctional system believes that only people who are considered dangerous by society who should be put in prison. if a policy such as this is implemented, it will certainly help reduce prison overcrowding. the code of criminal procedure (kitab undang-undang hukum acara pidana, abbreviated as kuhap) regulates this as long as the perpetrator is guaranteed not to run away, not to destroy evidence, and not to commit the act again.37 the existence of this alternative sentencing, however, also leaves homework for the correctional system. alternative forms of nonimprisonment require adequate preparation on the part the indonesian correctional system so that the alternative sentencing can be implemented 36 draft criminal code of 2019, art. 76 and 85. 37 dindin sudirman (secretary of the directorate general of corrections), “alternative sentencing in indonesia,” interview by nadia utami larasati, jakarta, may 7, 2009; nadia utami larasati, “efek prisonisasi dan urgensi pemberian pidana alternatif bagi first offender,” deviance: jurnal kriminologi 2, no. 1 (2018): 51-64. prison o vercrowding: alternative sentencing in indonesia’s draft criminal code and its consequences on correctional system nadia utam i larasati, fahlesa munabari, untung sumarwan 53 effectively. in its future implementation, as explained in the rkuhp, community service and probation penalty will greatly depend on the duties and functions of the community correctional counselors. one of the primary roles of the community correctional counselors is to supervise convicts to ensure they do not re -offend or violate the terms of their probation or parole. in the regulation of criminal supervision in article 76 of the rkuhp, it is explained that the advice and suggestions of the community counselor are needed by the prosecutor in order to provide recommendations to the judge on matters related to whether the convict needs to serve imprisonment or extend the probation period if there is a violation of crimina l conditions for probation. furthermore, a proposal to reduce the probation period can also be submitted by the prosecutor to the judge if there is any advice or suggestions from the community correctional counselors that the convict shows good behavior.38 based on these provisions, community correctional counselors have an important role in supervising the implementation of the convicts’ probation period. the function of the community correctional counselors is to provide guidance and supervision to convict s who have been sentenced to probation and to report them to the prosecutor. this guidance and supervision include the observation of the convicts’ behavior while serving the sentence. in other words, the extent to which the convict shows a behavioral change is subject to the community correctional counselors’ observation and supervision. similar to the probation penalty, in article 85 of the rkuhp, it is explained that the observation of the implementation of community service penalty is carried out by prosecutors, and the supervision is carried out by community correctional counselors. thus, the community correctional counselors in this case also have the task of supervising the implementation of the community service penalty and changes in the behavior of the convicts.39 as explained above, correctional system and institution in indonesia are given a fairly important mandate if the current version of rkuhp is ratified in the future. this is because the task of observing and supervising the convicts will be in the hands of the community correctional counselors. based on the unodc report published in 2007, there are several factors that must be held and adhered to by the criminal justice system apparatus in implementing alternative forms of punishment effectively as follows: (1) fundamental knowledge; (2) political initiatives; (3) legal updates; (4) infrastructure and resources; (5) supervision; (6) publications; (7) media support; and (8) justice and equality. of all these factors, this study focuses 38 draft criminal code of 2019, art. 76. 39 djoko setiono (director of social guidance of the directorare general of corrections), “alternative sentencing in indonesia,” interview by nadia utami larasati, jakarta, november 10, 2017. udayana journal of law and culture vol. 6 no.1, january 2022 54 on the aspect of legal reform as well as infrastructure and resources in the indonesian correctional system and institution. 40 2.4. legal reform in the indonesian correctional institution to develop alternative penalties, policymakers need to reform legislation. the new legislation needs to be accompanied by seminars and trainings to facilitate the effective implementation of alternative sentencing.41 the formulation of policies is needed as a first step to prepare alternative sentencing practice. 42 therefore, since 2009, the indonesian correctional institution has compiled a blueprint for correctional reform that was stipulated through a ministerial regulation in 2009. 43 this blueprint details ideas, suggestions, and strategic measures to be taken to reform the indonesian correctional institution. it also serves as a means of reflection and evaluation of the implementation of the current correctional system. the blueprint appears to have a strong commitment to address the challenges and obstacles of the correctional system in indonesia. this is, for example, reflected in the proposed idea of deinstitutionalization of punishment or alternative punishments. furthermore, in the draft law on corrections, which will later be proposed to replace law no.12 of 1995 concerning corrections, in article 57 chapter iii part four concerning community guidance, it has also been regulated that community correctional counselors have responsibilities to carry out assistance, supervision, and observation of convicts undergoing community service and probation penalties. however, this provision does not yet regulate in detail the forms and mechanisms of the implementation of such responsibilities.44 the indonesian correctional institution also responds to the existence of alternative criminal penalties in the rkuhp by revising its previous blueprint. the above-mentioned regulation of the minister of law and human rights of the republic of indonesia published in 2009 has been amended with the issuance of the regulation of the minister of law and human rights of the republic of indonesia in 2018 on the blueprint for the revitalization of the implementation of indonesian correctional institution 40 united nations office on drugs and criminal, “handbook of basic principles and promising practices on alternatives to imprisonment”, 45. 41 ibid. 42 richard w snarr and bruce i wolford, op.cit., 89. 43 minister of law and human rights regulation no. m.hh-ot.02.02 of 2009 concerning the blueprint for the revision of the implementation of correctional system, art. 5. 44 narya (head of evaluation and reporting section at the secretariat of the directorate general of corrections), “alternative sentencing in indonesia,” interview by nadia utami larasati , jakarta, september 30, 2020. prison o vercrowding: alternative sentencing in indonesia’s draft criminal code and its consequences on correctional system nadia utam i larasati, fahlesa munabari, untung sumarwan 55 (2019-2023).45 this new blueprint is aimed at strengthening the supervisory function of the correctional center (balai pemasyarakatan, abbreviated as bapas) in the implementation of alternative sentencing. the revitalization programs are carried out through reviewing and making regulations as well as monitoring instruments, increasing the capacity and quantity of community mentoring resources, budget allocations, and increasing facilities and infrastructure. 2.5. the readiness of infrastructure and resources in the indonesian correctional institution in addition to readiness in terms of regulations and laws, alternative sentencing also requires adequate resources. 46 furthermore, it is also necessary to ensure the availability of necessary facilities and infrastructure with a view to not only initiating but also sustaining the implementation of this alternative sentencing the future.47 alternative sentencing is a policy that is in line with the philosophy of social reintegration as the underlying philosophy of the indonesian correctional institution. however, further measures need to be taken in terms of organizational and human resources in correctional institutions. one of them is the need to develop the function and role of the correctional center. the correctional center functions to provide judges with advice or suggestions based on a societal perspec tive for the purpose of issuing judicial decisions. the social aspect of the community is elaborated based on the results of studies conducted by correctional centers. therefore, the correctional center has a major role in the implementation of the alternative sentencing. this is because the findings of studies conducted by the correctional center through the community correctional counselors serve as a valuable basis upon which judicial decision is made by the judge. these societal studies principally aim to examine matters related to the dynamics of the social life of the convicts. moreover, the professionalism of correctional centers’ officers also needs to be improved. as mentioned above, alternative sentencing will be suggested to judges based on studies conducted by correctional centers. therefore, a pool of professional community research analysts is needed. the community research analysts cannot be made based on the “orders” of certain parties. essentially, punishment is based on the principles of t ruth, justice, and the protection of human rights. these three principles must 45 minister of law and human rights regulation no. 40 of 2018 concerning the blueprint for the revitalization of the implementation of indonesian correctional institution (2019-2023), art. 5. 46 iskandar wibawa, loc.cit. 47 united nations office on drugs and criminal, “handbook of basic principles and promising practices on alternatives to imprisonment”, 103. udayana journal of law and culture vol. 6 no.1, january 2022 56 therefore be balanced. truth must be upheld, but the truth must also not violate justice and human rights. these three variables need to be accommodated by community correctional counselors. thus, the presence of community correctional counselors is vital in the implementation of this alternative sentencing.48 snarr and wolford suggest that in order to implement alternative sentencing effectively, attention must be paid to deter mine what is to be achieved and what resources are available. 49 as described earlier, the principle of truth, justice, and protection of human rights can only be achieved if professional human resources are available. as one of the steps to strengthen this professionalism, a community correctional counselor has become a functional position that falls within the legal and judicial cluster as regulated in the regulation of the ministry of state apparatus empowerment and bureaucratic reform of the republic of indonesia published in 2016 concerning functional position of community correctional counselors. 50 the position of community correctional counselors is designated as a functional position in the category of expertise with the highest level being “ahli utama” and the lowest being “ahli pertama”. moreover, in terms of infrastructure, the indonesian correctional system has also added about 17 correctional centers. currently, there are 90 correctional centers throughout indonesia and this number will continue to increase in line with the increasingly difficult tasks of community correctional counselors. community correctional counselors will also be placed in the correctional centers to accommodate tasks that are not accessible due to the limited number of prisons currently available in the country.51 another task that must be implemented by the correctional center is to prepare for community participation. the main challenge in building cbc and alternative sentencing lie s in community involvement. although this is not easy, it is an important aspect to implement the cbc successfully. therefore, there needs to be an effective approach to get a good level of acceptance and involvement from the community.52 community correctional counselors also need to run a grass-roots campaign to inform the indonesian public that imprisonment is not always an effective form of punishment for convicts. in other words, the community also needs to be given understanding and empowerment regarding the implementation of alternative sentencing. furthermore, it is also important to realize an 48 dindin sudirman, loc.cit. 49 snarr and wolford, op.cit, 75. 50 minister of empowerment of the state apparatus and bureaucratic reform regulation no. 22 of 2016 concerning the functional position of community c orrectional counselors, art. 2. 51 narya, loc.cit. 52 snarr and wolford, op.cit, 97. prison o vercrowding: alternative sentencing in indonesia’s draft criminal code and its consequences on correctional system nadia utam i larasati, fahlesa munabari, untung sumarwan 57 integrated criminal justice system (icjs), because prison overcrowding is closely linked to the criminal justice system that tends to imprison as many people as possible. coordination is also needed to get correctional institutions involved in the criminal justice system from the outset, which is similar to the case of children in the criminal justice system. this is what snarr and wolford referred to as an effort to build cooperation and coordination be tween parties within criminal justice system with a view to implementing alternative sentencing effectively.53 3. conclusion the philosophy of social reintegration that underlies the indonesian correctional system is quite advanced. however, the implementation of the correctional system is not effective because it is riddled with problems that hinder the achievement of the system’s objectives, that is, reintegrating prisoners into society. one of the problems is prison overcrowding, which in turn renders correctional institutions unmanageable and increasingly vulnerable. thus, an effective observation and supervision of inmates becomes a difficult goal to achieve. this study attempted to address this issue by analyzing the extent to which indonesian correctional institution manages to adapt to the future alternative sentencing according to the latest version of rkuhp. the alternative form of punishment is actually in line with the philosophy of social reintegration that has been the basis of correctional system that aims to reintegrate prisoners into society.54 however, this aim is addressed through deinstitutionalization efforts or non-imprisonment policies. these efforts are currently being discussed in the rkhup, and several suggested alternative forms of punishment are community service and probation penalties. this study demonstrated that based on the rkuhp, the indonesian correctional system is preparing to undertake many strategic measures through the revisions of relevant regulations and laws, increasing the number of infrastructure and facilities, and increasing the quality of human resources for community correctional counselors according to the framework of cbc. however, this study showed that some measures mentioned above are unfortunately not enough, because there are still many improvements that need to be made by the indonesian correctional system. reviewing and formulating regulations, monitoring instruments, increasing the capacity and quantity of community correctional counselors, allocating an appropriate budget, and adding facilities and infrastructure need to be 53 ibid. 54 alpaslan özerdem, “a re-conceptualisation of ex-combatant reintegration: ‘social reintegration’ approach,” conflict, security & development 12, no. 1 (2012): 51-73. udayana journal of law and culture vol. 6 no.1, january 2022 58 addressed and accommodated. thus, when the time of the ratification of the rkuhp comes, alternative sentencing can be implemented effectively. otherwise, expectation that alternative sentencing can be a solution to solve the prison overcrowding will only be wishful thinking. in addition to policies, infrastructure, and human resources, the cbc approach still leaves some key determinants in order for the alternative sentencing to be implemented successfully, such as publications, community involvement, and media support. therefore, the authors suggest that future studies are needed to examine alternative sentencing with determinants other than those mentioned above. furthermore, the readiness for the implementation of this alternative sentencing must not only be implemented by the indonesian correctional institution, but also by the entire sub-system of the criminal justice system including the police, prosecutors, and judges. therefore, future studies within the scope of these institutions also need to be carried out in order to evaluate 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utami larasati, jakarta, november 10, 2017. https://doi.org/10.18196/jmh.2017.0086.105-114 prison o vercrowding: alternative sentencing in indonesia’s draft criminal code and its consequences on correctional system nadia utam i larasati, fahlesa munabari, untung sumarwan 61 narya (head of evaluation and reporting section at the secretariat of the directorate general of corrections). “alternative sentencing in indonesia,” interview by nadia utami larasati, jakarta, september 30, 2020. other documents institute for criminal justice. “strategies to reduce overcrowding in indonesia: causes, impacts, and solutions.” (2018). https://icjr.or.id/strategies-to-reduce-overcrowding-in-indonesiacauses-impacts-and-solutions/ walmsley, roy. “world prison population list.” (2003). https://www.prisonstudies.org/sites/default/files/resources/downloa ds/wppl_12.pdf https://icjr.or.id/strategies-to-reduce-overcrowding-in-indonesia-causes-impacts-and-solutions/ https://icjr.or.id/strategies-to-reduce-overcrowding-in-indonesia-causes-impacts-and-solutions/ https://www.prisonstudies.org/sites/default/files/resources/downloads/wppl_12.pdf https://www.prisonstudies.org/sites/default/files/resources/downloads/wppl_12.pdf e-issn 2549-0680 vol. 5 no. 1, january 2021, pp. 41-57 doi: https://doi.org/10.24843/ujlc.2021.v05.i01.p03 this is an open access article, distributed under the terms of the creative commons attribution licence (http://creativecommons.org/licenses/by/4.0/), 41 strengthening regulations in protecting indonesian migrant workers before departing to the destination country rifqon khairazi* master of laws study program, faculty of law, university of indonesia, depok–indonesia abstract the lack of employment opportunities and intense level of job competitiveness contribute to the increasing number of job seekers in indonesia. by the availability of opportunities to work abroad, people choose to work as migrant workers. fact reveals many legal problems faced by migrant workers, especially those who work as domestic workers in foreign countries. this study analyzes the reasons and legal issues that cause indonesian migrant workers to experience many violations of their rights, particularly in the pre-departure period. it discusses the rights and protection for migrant workers as stipulated in relevant laws and regulations. this research applies a normative legal method, analyzing legal documents in statutory regulations and several supporting references related to migrant workers. the results revealed that the violations of indonesian migrant workers’ rights occurred due to the lack of implementation of before working (pre-departure) protection. besides, numerous migrant workers departed without going through a departure mechanism as determined in law no. 18 of 2017 concerning the protection of indonesian migrant workers. therefore, it is necessary to consider revising the current laws and regulations or strengthening them through implementing regulations. keywords: indonesian migrant workers; preparation before departing; human rights; legal protection. 1. introduction 1.1. background as a developing country with a high population, indonesia is faced with various problems, including labour. the lack of jobs opportunity has led to an increased number of unemployed. the central statistics agency (bps) recorded that the number of unemployed people in indonesia in august 2020 reached 9.77 million people, or 7.07 percent, an increase of 1.84 percent compared to august 2019. 1 limited skills, education, and capital to start a business, as well as the lack of accessible employment opportunities, have caused many people to choose to work abroad as migrant workers. every year thousands of indonesian citizens work for foreign employers abroad, mostly for domestic services, the indonesian migrant ** email/corresponding author: rifqon.khairazi@ui.ac.id 1 badan pusat statistik, keadaan ketenagakerjaan indonesia agustus 2020, nomor 86/11/th. xxiii, 05 november 2020. https://doi.org/10.24843/ujlc.2021.v05.i01.p03 http://creativecommons.org/licenses/by/4.0/ mailto:rifqon.khairazi@ui.ac.id strengthening regulations in protecting indonesian migrant workers before departing to the destination country rifqon khairazi 42 workers protection board (badan pelindungan pekerja migran indonesia/bp2mi) published that 276.553 migrant workers in 2019.2 these workers are usually women, financially less fortunate persons, from small cities or villages with limited work experience. they tend to come from an area with minimal employment opportunities. in general, this is a complex matter, it is not easy to generalize the reason to work overseas as migrant workers. however, the reason for working in a more developed country with the expectation of a higher income is becoming popular on prospective domestic workers. instead of expecting a high salary, prospective migrant workers should pay more attention to undergo a procedural way to avoid potential arising legal problems.3 one group that often attracts global attention due to legal issues is workers working abroad. they usually work outside the formal sector and need more attention from the government. these workers are commonly referred to as foreign migrant workers or migrant workers. the international convention on the protection of the rights of all migrant workers and members of their families defines migrant workers as a person "engaged in a remunerated activity in a state of which he or she is not a national."4 a similar understanding by international organization for migration (iom) defines "labour migration "as a" cross-border movement for employment in a foreign country."5 higher-income than the wages paid in indonesia is the most common reason. in this regard, high levels of unemployment and poverty in the source country act as driving factors in the decision to emigrate. economic disparities among asian country groups have been cited as a major factor in terms of per capita income ranging from as low as us$200 in the poorest countries to around us$35-40,000 in developed countries.6 for example, japan, the republic of korea, the taiwan provinces of china, singapore, and hong kong sar had record growth during the 1970s and 1980s leading to what has been called the 'east asian economic miracle'.7 the choice to work abroad is not only because of the amount of salary received, although it is true that the wages received can be up to three to four times more than salary in indonesia, but also due to the migrant worker candidate's ignorance of the conditions when working outside country. at this stage, 2 bp2mi, data penempatan dan perlindungan tki periode tahun 2020, https://bp2mi.go.id/statistik-detail/data-penempatan-dan-perlindungan-tki-periodetahun-2019, 10/02/2020, accessed 20 january 2021. 3 bp2mi, sebanyak 149 pmi purna korea asal jawa timur lolos ujian cbt khusus, https://www.bp2mi.go.id/index.php/berita-detail/sebanyak-149-pmi-purn-korea-asaljawa-timur-lolos-ujian-cbt-khusus, 13/11/2020, accessed 21 january 2021. 4 see article (2) international convention on the protection of the rights of all migrant workers and members of their families. 5 susan kneebone, introduction migrant workers between states: in search of exit and integration strategies in south east asia, asian journal of social science 40, no.4 (2012): 373. 6 ilo, asian labour migration: issues and challenges in an era of globalization, (international migration papers (imp), 2002), 7. 7 ibid, 8. https://bp2mi.go.id/statistik-detail/data-penempatan-dan-perlindungan-tki-periode-tahun-2019 https://bp2mi.go.id/statistik-detail/data-penempatan-dan-perlindungan-tki-periode-tahun-2019 https://www.bp2mi.go.id/index.php/berita-detail/sebanyak-149-pmi-purn-korea-asal-jawa-timur-lolos-ujian-cbt-khusus https://www.bp2mi.go.id/index.php/berita-detail/sebanyak-149-pmi-purn-korea-asal-jawa-timur-lolos-ujian-cbt-khusus udayana journal of law and culture vol. 5 no. 1, january 2021 43 prospective workers tend to look at their relatives or neighbours who have previously found work abroad.8 the limited knowledge of prospective migrant workers can cause legal problems, such as violations of migrant workers' rights before or after arriving in the destination country. the infringement that usually occurs pre-departure is the failure to fulfill the worker's privilege by the employment agency or known as the indonesian migrant worker placement company (pppmi), as stated in law no. 18 of 2017 concerning the protection of indonesian migrant workers (hereinafter, indonesian migrant worker protection law). for example, breaches of contracts, namely the absence of clauses in accordance with the standard placement agreement stipulated in the minister of manpower regulation no 22 of 2014 concerning the implementation of placement and protection of indonesian workers abroad. furthermore, other violations that are also prone to occur are related to the overcharging costs carried out by the employment agency in indonesia and similar agencies abroad. this issue is essential for prospective foreign workers to clearly know these rules because it can lead to a very detrimental violation of labor rights. regulation regarding the protection of migrant workers in indonesia is stating in the indonesian migrant worker protection law. this law regulates legal protection aspects for migrant workers in before, present, and post-working departure to working-country destination. however, its implementation faced various obstacles, so that it does not provide strict legal protection for migrant workers. the existence of migrant workers basically benefits the country, especially in reducing the number of unemployed in indonesia. workers are vulnerable to being exploited by agents or employers, particularly their rights before working in the destination country, as mentioned above. hence, the government should ensure the protection and fulfillment of migrant workers' rights. 1.2. purpose legal protection for migrant workers in the indonesian migrant worker protection law regulates three forms of protection: pre-departure protection, protection during work, and post-work protection. as on the practical level, migrant workers experienced violations of their rights, especially before departure. for instance, excluding some clauses in accordance with the standard contract regulated in manpower regulation by the agency. therefore, the indonesian government has a huge responsibility to fulfill the rights of its citizens. fundamentally, every citizen has the right to get a job and a decent living for humanity. based on these background problems, this study aims to offers an overview of how to strengthen the law and regulations in responding to critical issues related to the violations of indonesian migrant workers' rights, particularly in the pre-departure period. 8 maulidyah amalina rizqi, analisis faktor-faktor yang mempengaruhi masyarakat untuk menjadi tenaga kerja indonesia di luar negeri, seminar nasional dan call for papers: manajemen, akuntansi, & perbankan, fakultas ekonomi universitas islam negeri maulana malik ibrahim, 2018, 1173. strengthening regulations in protecting indonesian migrant workers before departing to the destination country rifqon khairazi 44 1.3 method the paper applies a normative legal research. it primarily collects statutory provisions related to indonesian migrant workers as stipulated in various law and regulations in indonesia besides general norms and principles contained in international treaties. the collected legal sources are analysed and presented in qualitative using prescriptive and argumentative techniques by explaining relevant sources including law and regulations, treaties reports, journal articles, and legal problems experienced by prospective indonesian migrant workers: and violations of their rights as regulated in the indonesian migrant workers protection law. 1.4 literature review this study uses the theory of legal protection. according to fitzgerald, the theory of legal protection aims to integrate and coordinate society's legal interests, which is carried out by protecting the parties' interests.9 according to satjipto rahardjo, legal protection is an effort to protect someone's interest by allocating power to him to act in that interest framework.10 the protection is necessary to provide security for human rights that others have harmed. there have been previous studies that discussed the issue of the protection of migrant workers. riri anggraini conducted research that focuses on irregular migrants vulnerable to violations of their human rights from an international human rights law perspective. this study indicates that irregular migrant workers also have the same rights as other migrant workers or other citizens. so that countries (especially countries in southeast asia) must recognize and protect them under any circumstances, as contained in the provisions of international human rights law, especially in the international convention on the protection of the rights of all migrant workers and their families.11 referring to this convention, the indonesian government must protect migrant workers. this aims to avoid various violations and legal cases experienced by indonesian migrant workers. in addition, supporting this article, the indonesian government is expected to strengthen existing regulations to avoid potential offenses such as the un-procedural dispatch of migrant workers in order to prevent the illegal departure of migrant workers. hartono widodo and r. jossi belgradoputra published an article on the topic of indonesian migrant workers protection. the research shows that the government still seems ignorant in dealing with the protection of migrant workers, resulting in cases of human trafficking, slavery, forced labor, abuse, crimes against human dignity, and other treatments that violate 9 satjipto rahardjo, ilmu hukum, (bandung: citra aditya bakti, 2000), 54. 10 satjipto rahardjo, sisi-sisi lain dari hukum di indonesia, (jakarta: kompas, 2003), 121. 11 riri anggriani, “perlindungan hukum bagi irregular migrant workers indonesia di kawasan asia tenggara (dalam perspektif hukum ham internasional),” jurnal yuridika 32, no. 2 (2017): 310. udayana journal of law and culture vol. 5 no. 1, january 2021 45 human rights. 12 it refers to migrant worker protection law and its derivatives regulations. basically, the government has made reasonable efforts in protecting indonesian migrant workers, especially with the issuance of the indonesian migrant worker protection law. to date, however, there are still several problems that the government has not resolved and seem ignorant. such as the establishment of training institutions for migrant workers, supervision for placement agencies, and the issuance of government regulations. through the strengthening of regulations, these issues can be solved for the welfare of migrant workers shortly. wafda vivid izziyana et, al discussed the legal protection for migrant workers through paralegal training. this study shows that prospective workers do not understand the flow and procedures of legal protection. paralegal assistance helps migrant workers understand contracts that consist of wages, working hours, working hours, social security, and procedures. the lack of understanding of the applicable agreement is also caused by insufficient explanation regarding the contract issue. 13 this research emphasizes the importance of training for prospective migrant workers and the lack of information of workers' candidates prone to violation of migrant workers' rights. this article focuses on the importance of strengthening regulations in protecting migrant workers, particularly before working. the aforementioned research and the present paper have a similarity, that is a concern on the protection of indonesian migrant workers. the particularity of this paper compares to the three studies above, is an emphasis on existing regulations, especially on indications of violations of migrant workers' rights in the predeparture period. 2. result and analysis 2.1. legal protection for indonesian migrant workers significant advancements occur in development in the past decades in the asia-pacific region, and migrant workers have contributed much to its development. sending and host countries both gain from the knowledge, skills, labor power, and financial remittances from migrant workers. therefore, every nation in the asia-pacific region is responsible for protecting migrant workers' health and rights.14 one of the state's objectives, as stated in the 1945 constitution of the republic of indonesia (hereinafter, indonesian constitution), is to protect the people of indonesia and their entire native land. the indonesian 12 hartono widodo and r. jossi belgradoputra, “perlindungan pekerja migran indonesia,” binamulia hukum 8, no. 1 (2019): 107. 13 wafda vivid izziyana, surisman, and andika yuli rimbawan, “perlindungan hukum bagi pekerja migran melalui pelatihan paralegal di ponorogo”, legal standing 4, no. 1 (2020): 328. 14 low, wah yun, wen ting tong, and colin binns, “migrant workers in asia pacific and their rights to health,” asia pacific journal of public health 27, no. 6 (2015): 586. strengthening regulations in protecting indonesian migrant workers before departing to the destination country rifqon khairazi 46 constitution enshrines the protection of human rights in general, including the fulfilment of the right to work in which every citizen has the right to a decent job and livelihood.15 the indonesian constitution also determines that everyone has the right to recognition, guarantees, protection, and legal certainty that is just and equal treatment before the law.16 the statutory provisions regarding indonesian migrant workers are regulated in various law and regulations. law no.13 of 2003 concerning manpower states that every worker has the same rights and opportunities to choose, get, or change jobs and earn a decent income at home or abroad. with regards to the placement of workers, this law underlines the need to place the worker in the right positions that are suitable to their expertise, skills, talents, interests, and abilities by paying attention the human dignity, human rights, and legal protection. 17 law no.39 of 2004 concerning the placement and protection of indonesian migrant workers abroad was the first law that specifically regulates the legality of sending foreign workers as well as prevention and efforts to combat trafficking. 18 the law seems to put more emphasis on administrative aspects rather than the rights of migrant workers. public opinion tends to judge this law has not successfully decreased the problems faced by indonesian migrant workers abroad. the issue of migrant workers' protection is mostly regulated in both bilateral and regional agreements. the international labour organization (ilo) notes that most of these agreements are ineffective19 many bilateral agreements are not implemented by the state party, especially in providing equal protection and treatment for migrant workers. in the context of international law, indonesia has ratified treaties that cover the issue of migrant workers' rights protection, namely the protocol against the smuggling of migrants by land, sea, and air, supplementing the united nations convention against transnational organized crime organized and international convention on the protection of the rights of all migrant workers and members of their families (icrmw).20 most of the provisions of the icrmw offer a firmer interpretation of human rights in the case of migrant workers and establish some specific rights for the conditions of migrant workers, such as the right to transfer money or have access to 15 ibid, art. 27 (2) 16 ibid, art. 28d (1) 17 see law no.13 of 2003 concerning manpower, art. 31 and 32. 18 safrida yusitarani, “analisis yuridis perlindungan hukum tenaga migran korban perdagangan manusia oleh pemerintah indonesia,” jurnal pembangunan hukum indonesia 2, no. 1 (2020): 29. 19 sarah rosengaertner, “pathways to protection and permanency: towards regulated global economic migration and mobility,” columbia journal of transnational law 56, no. 2 (2018): 284. 20 yusitarani, op.cit. 29. see law no. 15 of 2009 concerning ratification of the protocol against the smuggling of migrants by land, sea, and air, supplementing the united nations convention against transnational organized crime organized and law no. 6 of 2012 concerning ratification of the international convention on the protection of the rights of all migrant workers and members of their families (icrmw) udayana journal of law and culture vol. 5 no. 1, january 2021 47 information in the migration process.21 concisely, icrmw comes up with a serious effort to protect migrant workers' rights, meaning that 'everyone' in every human rights instrument 'really means as a human being, that nonoriginal citizens are covered and protected. therefore, a migrant is also covered by the provisions of human rights instruments. these also apply to immigration law and may restrict states' right to control the exit and entry of foreigners.22 the indonesian migrant workers protection law, enacted in 2017, emphasizes the aspects of protection of migrant workers based on the considerations specified in the international convention on the protection of the rights of all migrant workers and members of their families. it also regulates the issue of recruitment of prospective migrant workers, immigration services, health, and training are the central and local governments' responsibility. this regulation is the government's seriousness in protecting migrant workers. 2.2. migrant workers protection issues the indonesian migrant workers protection law provides rigorous protection for workers, especially regarding the recruitment of migrant workers. it underlines the need for prospective migrant workers to be determined for a particular field of work to classify their expertise and competence as well as to prevent unexpected treatment by the employer abroad. to protect migrant workers, indonesian migrant workers protection law mandates that only migrant workers candidates who already have acquired the competence and other specified requirements allow working abroad.23 in addition, both national and local governments are required to provide and facilitate the training of prospective indonesian migrant workers.24 moreover, current supervision carries through establishing onestop integrated services (ltsa) by the local government. however, the limited number of ltsa in various regions and the lack of integration between the national and regional governments make supervision notoptimal. additionally, there was still no government regulation on training for prospective indonesian migrant workers at the time of writing this article. domestic workers' case exposes violations in destination country because of assuming that work designated as low skilled is easy and can be done by anyone. low-skilled labour is imagined as fungible, easily 21 see international convention on the protection of the rights of all migrant workers and members of their families, art. 32 and 33. 22 bogusz barbara, ryszard c, adam c, erika. irregular migration and human rights: theoretical, european, and international perspectives. (leiden: martinus nijhoff, 2004), 19 23 see law no. 18 of 2017 concerning the protection of indonesian migrant workers, art. 5. 24 ibid, art. 38. strengthening regulations in protecting indonesian migrant workers before departing to the destination country rifqon khairazi 48 replaceable, and this is critical to the logic of immigration policy.25 today, the competency training for prospective workers carries by the indonesian migrant worker placement company (pppmi), under the supervision of the provincial and regency/municipality governments.26. however, the provision of work competency education and training for prospective migrant workers is still a significant issue that must be resolved on the ground that pppmi is established in the form of a company legal entity under the government or private company. so far, it has been noted that violations of migrant workers 'rights are caused by the workers' lack of work experience and knowledge. gordon's view puts it that, 'from the perspective of workers in the countries that accept them, the more immigrants, the more competition, and the worse the jobs'.27 of the many cases that have entered the national board for the placement and protection of indonesia overseas workers (bnp2tki) crisis center, including overstay, sickness, termination of employment before the end of the work agreement, unpaid salaries, workers wants to be repatriated, passed away, drops of contact, fraud on job opportunities, and jobs not in accordance with the work agreement.28 these legal issues can be identified by looking at the contracts and agreements, which are generally a violation of two agreements agreed upon by migrant workers, namely the placement agreement and the employment contract. the regulation of these two agreements can be seen in indonesian migrant workers protection law that the placement agreement is a written agreement between operator indonesian migrant workers placement and prospective indonesian migrant workers that contains the rights and obligations of each party, in the placement of indonesian migrant workers in the destination country in accordance with the legislation; and an employment contract as the written agreement between indonesian migrant workers and employer that contains terms of employment, rights and obligations of each party, as well as security and safety assurance during working in accordance with the legislation.29 in this regard, the government of indonesia through the minister of manpower regulation no. 22 of 2014 concerning the implementation of placement and protection of indonesian workers abroad sets a standard employment agreement for the domestic sector. this standard employment agreement also provides for the obligation to pay transportation costs for migrant workers to return home to their place of origin; the employment agreement also states that the employer is not allowed to deduct any 25 bridget anderson, “migrant domestic workers: good workers, poor slaves, new connections, social politics: international studies in gender,” state & society 22, no. 4 (2015): 647. 26 ibid, art. 40 and 41. 27 einat albin, “union responsibility to migrant workers: a global justice approach,” oxford journal of legal studies 34, no. 1 (2014): 135. 28 bp2mi, bentuk pengakuan kualitas pelayanan pengaduan di bnp2tki, 25/11/2019, https://bp2mi.go.id/program-detail/iso-9001-2015-bentuk-pengakuankualitas-pelayanan-pengaduan-di-bnp2tki/integrasi%20informasi%20&%20pengaduan, 29 see law no. 18 of 2017 concerning the protection of indonesian migrant workers, art. 1 (13) and (14). https://bp2mi.go.id/program-detail/iso-9001-2015-bentuk-pengakuan-kualitas-pelayanan-pengaduan-di-bnp2tki/integrasi%20informasi%20&%20pengaduan https://bp2mi.go.id/program-detail/iso-9001-2015-bentuk-pengakuan-kualitas-pelayanan-pengaduan-di-bnp2tki/integrasi%20informasi%20&%20pengaduan udayana journal of law and culture vol. 5 no. 1, january 2021 49 amount from the regular salary. in the case of a deduction for valid reasons, the deduction must be stated on the worker's wage slip. the following are several issues related to potential violators of placement agreements and work agreements: 1. failure to depart; 2. wage disputes between workers and employers that are not in accordance with the agreement; 3. overcharging; 4. different type of work as stated in employment contract, the workload is excessive or is done in several places; and 5. unilateral termination of employment; termination of employment, unpaid wages, migrant workers ask to be repatriated, and more are generally caused by the human resources of workers who are not ready to work, yet they leave. workers should have been equipped with expertise in their field of work in advance. one of the problems that may arise during migration is the language barrier which can lead to misunderstanding between migrant workers and their employers.30 workers are vulnerable to be exploited by agents or employers using deception or the lure of high-paying jobs. after they are trapped in a foreign country, they cannot speak a foreign language, and workers are then forced to work with heavy workloads, long working hours, and given dirty and unsanitary living quarters. this weakness forces them to tend to accept and obey the employer's wishes, which they should not do. consequently, migrant workers can be at high risk of exposure to workplace hazards and face additional work-related risk factors and unfavourable social determinants of health including employment and wage discrimination, poor working and living conditions.31 it is obvious that the root of the problem started from the departure process, namely before working. the practice of sending migrant workers without fulfilling the procedure as stipulated in law and regulation can cause significant harm to migrant workers when they get a job in the destination country. indonesian migrant workers protection law states that the protection of prospective indonesian migrant workers or indonesian migrant workers covers:32 a. before working (departing) protection; b. during working protection; and c. after (post) working protection. it is clear that the protection for migrant workers is started before the employment stage, which covers administrative and technical matters. 30 laporan bank dunia indonesia, pekerja global indonesia: antara peluang dan risiko, world bank group, 2017, 65. 31 yuka ujita, paul j douglas, “masatoki adachi, md, enhancing the health and safety of migrant workers,” journal of travel medicine 26, no. 2 (2019): 1. 32 law no. 18 of 2017 concerning the protection of indonesian migrant workers, art. 7. strengthening regulations in protecting indonesian migrant workers before departing to the destination country rifqon khairazi 50 the administrative aspect emphasizes the completeness and validity of documents. it determines working conditions such as a statement of marital status, letter of consent from husband or wife, health certificates, work competency certificates, passports, work visas, indonesian migrant workers agreement, employment contract. meanwhile, technical protection includes facilities provided to ensure prospective migrant workers' ability and quality when they depart. technical protection, as referred to in article 7, at least includes:33 a. socialization and dissemination of information; b. quality improvement of prospective migrant workers through education and job training; c. social security; d. facilitate the fulfillment of future indonesian migrant workers; e. role strengthening for work agent functional staff; f. placement services in one-stop placement and protection services for indonesian migrant workers; and g. coaching and supervision. indonesian migrant workers protection law authorizes three placement institutions the agency, the indonesian migrant worker placement company (perusahaan penempatan pekerja migran indonesia/pppmi), and the company, sending their workers for the company's interest. 34 the placement through the agency is carried out based on a written agreement between the two countries or the employer with a legal entity.35 in the absence of any further explanation regarding the placement of migrant workers with legal entity employers, it is understood that pppmi carries out the placement of migrant workers. article 30 of the indonesian migrant workers protection law stipulates that migrant workers cannot be charged a placement fee. the implementing regulation classifies items of placement fees in which migrant workers cannot be burdened with, namely: 36 a. departure tickets; b. return tickets; c. work visas; d. legalization of work agreements; e. job training; f. work competency certification; g. company services; h. change of passports; i. police records; j. social security; 33 ibid, art. 8 (3). 34 ibid, art 49. 35 ibid, art. 50 36 see indonesian migrant worker protection agency regulation no. 9 of 2020 concerning exemption from placement fees for indonesian migrant workers, art. 3 (1) and (2). udayana journal of law and culture vol. 5 no. 1, january 2021 51 k. domestic health and psychological examinations; l. additional medical examinations if certain countries require it m. local transportation from the area of origin to the place of departure in indonesia; and n. accommodation. the above exemption only applies to migrant workers who choose the following type of job:37 a. housekeeper; b. babysitter c. caregiver for the elderly; d. cook; e. family drivers; f. park nurses; g. childminder; h. janitor; i. farm/plantation workers; and j. migrant fishing boat crews. pppmi usually sends migrant workers to work for individual employers as domestic workers. data released by bp2mi reveals that domestic workers are migrant workers with the highest placement, namely 276,553 workers in the 2017 to 2019 period. 38 this group of migrant domestic workers is prone to violations. they are categorized in the 3d category (dirty, dangerous, and degrading). this group is prone to experiencing various violence, abuse, human rights violations, and violations of workers' rights. in one of many cases,39 josephine (not her real name) was working as an indonesian migrant domestic worker in hong kong. one day, her employers took her with them to work as a live-in nanny in another country. josephine was happy about signing a new local employment contract that came with a higher salary. unfortunately, the hope of a promising start in a new country was short-lived. taking her passport, josephine's employers forced her to work every day with no break, from 6 am to 11 pm. sometimes, she was so busy that she only had time for one meal in her 17-hour workday. they gave her no days off.40 this case shows how the impact of the 37 ibid, art. 3(3) 38 bp2mi, data penempatan dan perlindungan tki periode tahun 2020, https://bp2mi.go.id/statistik-detail/data-penempatan-dan-perlindungan-tki-periodetahun-2019, 10/02/2020, accessed 14 september 2020. 39 data released by bp2mi through pmi services' complaints in crisis center, there were 9,377 cases received in 2019. bp2mi has not currently issued recent complaint data for 2020. however, the last data drawn on january 4, 2021, shows that there were 74 cases in december 2020. 40 justice without borders, standing up for unpaid wages: one woman‟s fight across borders, https://forjusticewithoutborders.org/standing-up-for-unpaid-wages-onewomans-fight-across-borders/ 30/09/2020, accessed 3 december 2020. https://bp2mi.go.id/statistik-detail/data-penempatan-dan-perlindungan-tki-periode-tahun-2019 https://bp2mi.go.id/statistik-detail/data-penempatan-dan-perlindungan-tki-periode-tahun-2019 https://forjusticewithoutborders.org/standing-up-for-unpaid-wages-one-womans-fight-across-borders/ https://forjusticewithoutborders.org/standing-up-for-unpaid-wages-one-womans-fight-across-borders/ strengthening regulations in protecting indonesian migrant workers before departing to the destination country rifqon khairazi 52 non-fulfillment of migrant workers' rights, which is not compatible with the provisions laid down in the indonesian migrant worker protection law, this situation is exacerbated by a recruitment model that is not according to procedures. the weak supervision from the government leads to some violations. the law requires pppmi to provide socialization and dissemination of information; quality improvement through education, and job training for prospective migrant workers. however, the recruiting authorities consider these procedures are restrictive, convoluted, and timeconsuming. the fee exemption for prospective migrant workers, as guaranteed by law and regulations is sometimes not fully implemented. some cases indicates that domestic workers become targets for illegal recruitment by irresponsible parties. the next problem that potentially harms indonesian migrant workers is the loophole in the indonesian migrant worker protection law, which regulates that migrant workers can work abroad outside the placement implementing mechanism. this potential problem causes illegal recruitment by individual employers, and unlicensed labor placement companies in indonesia can make it with un-procedural recruitment. migrant workers can work without the placement implementer at the risk that they have to bear themselves. 41 again, efforts to improve quality have to start from the beginning; it is before working. article 63 of the indonesian migrant worker protection law is considered an un-procedural way to attract migrant workers. efforts to recruit migrant workers in this way lead to the unpreparedness of prospective workers. they are offered a substantial income and job abroad, but they do not know their work's core. this fundamental lack of understanding is vulnerable to exploitation by employers to ask them to do things outside their workload. also, various unlicensed pppmis emerged as a factor causing workers not to receive pre-placement education. they were only used as objects or labor commodities, which could even lead to human trafficking. this clearly violates the norms contained in the international covenant on civil and political rights, in which a person has the right to be treated humanely. no one shall be held in slavery; slavery and the slavetrade in all their forms shall be prohibited.42 as a brief reminder, in europe, the sanctions directive 2009/52/ec regulates the prohibition of unlicensed migrant workers, imposing administrative and criminal penalties. the purpose of this rule is to "fight illegal immigration," which also means "prohibits the employment of illegally staying third-country nationals." 43 that way, the indonesian government must firmly provide protection and impose strict sanctions on placement 41 law no. 18 of 2017 concerning the protection of indonesian migrant workers, art. 63. 42 international covenant on civil and political rights, art. 8. 43 niklas selberg, “the laws of „illegal‟ work and dilemmas in interest representation on segmented labor markets: à propos irregular migrants in sweden,” comparative labor law and policy 35, no. 2 (2014): 257. udayana journal of law and culture vol. 5 no. 1, january 2021 53 agencies who dare to send migrant workers through mechanisms that are not under statutory regulations. from the problems stated above, it can be identified that a series of issues that are often experienced by indonesian workers abroad, that is starting from the period before work departure. the workers do not receive adequate job training. even though this training plays a significant role in determining the success of prospective migrant workers in carrying out their work obligations, this training emphasizes prospective workers in understanding their rights during working; knowing the right to be protected while they are working, the right to get access to health, the right to get insurance, the right to work in accordance with the work agreement, and the right to get additional wages if they get a job outside of what is stated in the work agreement, and knowledge of costs placement. considering the data released by bp2mi, the cost of overcharging is included in the top ten types of complaints for indonesian migrant workers by type of problem.44 2.3. migrant worker protection attempts before departure efforts to protect migrant workers can start from a simple way: educating them on workers' rights and their efforts to ensure that their rights are fulfilled. the government has conducted training to prepare migrant workers that increase the portion of teaching materials on worker mental preparation. brenda et,al argued that a typical protections enacted by origin country governments include dispatching labour attaches to be stationed at embassies of major destinations, administering pre-departure training, processing job contracts that regulate particular aspects of employment, and licensing (and blacklisting) private recruitment and employment agencies.45 hence, the training is necessary to stimulate their cognitive and psychological aspects that would increase their confidence, professionality, and readiness to adapt to living conditions abroad. it is expected that the training can increase the capacity and strengthen the mentality of the worker candidates before being placed in the destination country. legislation can be a means to maximize the protection for migrant workers. therefore, amendment to indonesian migrant worker protection law needs to be carried out on several articles that regulate the departure process and migrant workers' rights before, during, and after work., the strengthening of existing laws and regulations can also be used as a primary way in ensuring the fulfillment of migrant workers' rights from before departure. 44 bp2mi, data penempatan dan perlindungan tki periode tahun 2020, https://bp2mi.go.id/statistik-detail/data-penempatan-dan-perlindungan-tki-periodetahun-2019, 10 february 2020, accessed 14 september 2020. 45 brenda s. a. yeoh, charmian goh, and kellynn wee, “social protection for migrant domestic workers in singapore: international conventions, the law, and civil society action.” american behavioral scientist 64, no. 6 (2020): 846. https://bp2mi.go.id/statistik-detail/data-penempatan-dan-perlindungan-tki-periode-tahun-2019 https://bp2mi.go.id/statistik-detail/data-penempatan-dan-perlindungan-tki-periode-tahun-2019 strengthening regulations in protecting indonesian migrant workers before departing to the destination country rifqon khairazi 54 there are several provisions in the indonesian migrant worker protection law needs that can be manipulated in its implementation including the exploitation by job placement agencies. for instance, article 63 of the indonesian migrant workers protection law provides an opportunity for unscrupulous placement agents to potentially recruit illegally. this potential problem causes illegal recruitment by individual employers, and unlicensed labour placement companies in indonesia can make it with un-procedural recruitment. the government and the house of representatives (dpr) need to redesign the enforcement mechanism for the indonesian migrant workers protection law, especially ensuring that the placement process for migrant workers is in accordance with procedures and ensures workers' readiness before working to the destination country. it was noted that the unpreparedness of migrant workers who were sent to the destination countries caused problems such as problematic employers, abuse, harassment, rape, and other violence. even the resilience of their families is also at stake because of the risk of infidelity and divorce. by this, the fulfillment of their children's rights is also neglected. data released by the international organization for migration (iom) in indonesia through the ministry of women's empowerment and child protection noted that in 2015 the number of migrant workers successfully assisted by iom was 7, 193 people with a ratio of 5,876 women and 1,317 men. in these records, one victim could report more than one problem, so that from the 20 types of cases, the total case reports received reached 61,518 cases. meanwhile, data from the national agency for the placement and protection of indonesian workers (bnp2tki) in 2016 that migrant workers experienced problems were 4,756 people, of which 3,221 were female while 1,535 were male workers. 46 furthermore, the number of complaints received in 2017 was 4,349, 2018 recorded for 4,779, and a significant increase occurred in 2019 for 9,377 cases.47 current governance arrangements tend to be centralized in the central government, where it is difficult to supervise prospective workers and pppmi. it is necessary to involve regional and provincial governments to optimize the enforcement and guarding of migrant workers in ensuring the fulfillment of rights and protection for indonesian migrant workers. it is necessary to understand the aspects that can help to strengthen migrant workers' protection seen from many violations of migrant workers' rights. it can be achieved by amending existing regulations and/or strengthening current rules by implementing regulations that regulate the government's functions, duties, obligations, and responsibilities at both the central and regional levels. the protection of migrant workers through a regulatory approach is expected to provide clear certainty on migrant workers' rights and how they can get their rights, mostly their rights as regulated in the indonesian migrant workers protection law. 46 ibid. 47 bp2mi, data penempatan dan perlindungan tki periode tahun 2020, https://bp2mi.go.id/statistik-detail/data-penempatan-dan-perlindungan-tki-periodetahun-2019, 10/02/2020, accessed 20 january 2021. https://bp2mi.go.id/statistik-detail/data-penempatan-dan-perlindungan-tki-periode-tahun-2019 https://bp2mi.go.id/statistik-detail/data-penempatan-dan-perlindungan-tki-periode-tahun-2019 udayana journal of law and culture vol. 5 no. 1, january 2021 55 most migrant workers seem to do not understand this matter. therefore, efforts to strengthening the regulations, either by an amendment or creating implementing regulations, will be valuable for prospective migrant workers. it is obvious that pre-departure training is essential for future workers to teach them basic knowledge and skills in carrying out their jobs. besides, this training can be used to explained the prospective workers understand their rights to work, the right to be protected in the working period, the right to get access to health during work, the right to get insurance, the right to work as mentioned in the work agreement, and the right to obtain a salary. extra wages if they get an additional job. these rights are significant to know and provide understanding to prospective workers before departure. these rights are also protected in indonesian legislation and international legal instruments such as the icpmr. therefore, the government has a crucial role in ensuring this is rewarded, which can be achieved by strengthening existing regulations. 3. conclusion indonesian migrant workers often face legal problems that are mainly caused by the lack of knowledge, soft skills, and limited language constraints. the indonesian migrant workers protection law has determined the rights of migrant workers and guarantees protection before, during, and post-work. the law underlines the needs of providing socialization and dissemination of information; quality improvement of prospective migrant workers through education and job training; social security; facilitate the fulfillment of future indonesian migrant workers; role strengthening for work agent functional staff; placement services in one-stop placement and protection services for indonesian migrant workers; and coaching and supervision. the problem is that many of these workers are not prepared with the basic knowledge and skills to work abroad. therefore, attempts to strengthen regulations are essential to ensure the fulfillment of migrant workers' rights. given these problems, it is necessary to consider revising laws and regulations related to migrant workers. besides, strengthening rules can also be done by implementing regulations (such as government regulation) to ensure migrant workers' satisfaction, especially before departure to the destination country. bibliography book barbara, bogusz. ryszard c, adam c, erika. irregular migration and human rights: theoretical, european, and international perspectives. leiden: martinus nijhoff, 2004. ilo, asian labor migration: issues and challenges in an era of globalization, international migration papers (imp), 2002. rahardjo, satjipto. sisi-sisi lain dari hukum di indonesia. jakarta: kompas, 2003. rahardjo, satjipto, ilmu hukum, bandung: citra aditya bakti, 2000. 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"migrant domestic workers: good workers, poor slaves, new connections." social politics: international studies in gender, state & society 22, no. 4 (2015): 636–652. https://doi.org//10.1093/sp/jxv040 anggriani, riri. “perlindungan hukum bagi irregular migrant workers indonesia di kawasan asia tenggara (dalam perspektif hukum ham internasional).” yuridika 32, no. 2 (2017): 310-335. https://doi.org/10.20473/ydk.v32i2.4773 izziyana, wafda vivid, surisman, and andika yuli rimbawan. “perlindungan hukum bagi pekerja migran melalui pelatihan paralegal di ponorogo.” legal standing 4, no. 1 (2020): 328-336. kneebone, susan. “introduction migrant workers between states: in search of exit and integration strategies in south east asia.” asian journal of social science 40, no.4 (2012): 367–391. https://doi.org/10.1163/15685314-12341246 low, wah yun, wen ting tong, and colin binns. "migrant workers in asia pacific and their rights to health." asia pacific journal of public health 27, no. 6 (2015): 584-87. https://doi.org/10.1177/1010539515600007 rosengaertner, sarah. "pathways to protection and permanency: towards regulated global economic migration and mobility." columbia journal of transnational law 56, no. 2 (2018): 280-288. selberg, niklas. "the laws of "illegal" work and dilemmas in interest representation on segmented labor markets: à propos irregular migrants in sweden." comparative labor law and policy 35, no. 2 (2014): 247-288. ujita, yuka, paul j douglas, masatoki adachi. "enhancing the health and safety of migrant workers." journal of travel medicine 26, no. 2, (2019): 1-3. https://doi.org/10.1093/jtm/tay161 widodo, hartono and r. jossi belgradoputra. “perlindungan pekerja migran indonesia.” jurnal binamulia hukum 8, no. 1 (2019): 107-116. https://doi.org/10.37893/jbh.v8i1.42 yeoh, brenda s. a., charmian goh, and kellynn wee. “social protection for migrant domestic workers in singapore: international conventions, the law, and civil society action.” journal of american behavioral scientist 64, no. 6 (2020): 841–58. https://doi.org/10.1177/0002764220910208 yusitarani, safrida. “analisis yuridis perlindungan hukum tenaga migran korban perdagangan manusia oleh pemerintah indonesia.” jurnal pembangunan hukum indonesia 2, no. 1 (2020): 24-37. https://doi.org/10.14710/jphi.v2i1.24-37 legal documents of the republic of indonesia the 1945 constitution of the republic of indonesia law no.13 of 2003 concerning manpower https://doi.org/10.1093/ojls/gqt026 https://doi.org/10.1093/sp/jxv040 https://doi.org/10.20473/ydk.v32i2.4773 https://doi.org/10.1163/15685314-12341246 https://doi.org/10.1177/1010539515600007 https://doi.org/10.1093/jtm/tay161 https://doi.org/10.37893/jbh.v8i1.42 https://doi.org/10.1177/0002764220910208 https://doi.org/10.14710/jphi.v2i1.24-37 udayana journal of law and culture vol. 5 no. 1, january 2021 57 law no.39 of 2004 concerning the placement and protection of indonesian migrant workers abroad law no.6 of 2012 concerning ratification of the international convention on the protection of the rights of all migrant workers and members of their families law no.18 of 2017 concerning the protection of indonesian migrant workers minister of manpower regulation no. 22 of 2014 concerning the implementation of placement and protection of indonesian workers abroad. indonesian migrant worker protection agency regulation no. 9 of 2020 concerning exemption from placement fees for indonesian migrant workers international treaty international convention on the protection of the rights of all migrant workers and members of their families international covenant on civil and political rights other documents laporan bank dunia indonesia, pekerja global indonesia: antara peluang dan risiko, world bank group, 2017. maulidyah amalina rizqi, analisis faktor-faktor yang mempengaruhi masyarakat untuk menjadi tenaga kerja indonesia di luar negeri, seminar nasional dan call for papers: manajemen, akuntansi, & perbankan, fakultas ekonomi universitas islam negeri maulana malik ibrahim, 2018. website content bp2mi, “data penempatan dan perlindungan tki periode tahun 2020.” https://bp2mi.go.id/statistik-detail/data-penempatan-danperlindungan-tki-periode-tahun-2019 bp2mi, “bentuk pengakuan kualitas pelayanan pengaduan di bnp2tki.” https://bp2mi.go.id/program-detail/iso-9001-2015-bentukpengakuan-kualitas-pelayanan-pengaduan-dibnp2tki/integrasi%20informasi%20&%20pengaduan bp2mi, sebanyak 149 pmi purna korea asal jawa timur lolos ujian cbt khusus, https://www.bp2mi.go.id/index.php/berita-detail/sebanyak149-pmi-purn-korea-asal-jawa-timur-lolos-ujian-cbt-khusus 13/11/2020, accessed 21 january 2021. justice without borders, standing up for unpaid wages: one woman's fight across borders, https://forjusticewithoutborders.org/standingup-for-unpaid-wages-one-womans-fight-across-borders/ ministry of female empowerment and child protection, “perkuat mental calon pekerja migran perempuan indonesia.” https://www.kemenpppa.go.id/index.php/page/read/29/1988/perku at-mental-calon-pekerja-migran-perempuan-indonesia https://bp2mi.go.id/statistik-detail/data-penempatan-dan-perlindungan-tki-periode-tahun-2019 https://bp2mi.go.id/statistik-detail/data-penempatan-dan-perlindungan-tki-periode-tahun-2019 https://bp2mi.go.id/program-detail/iso-9001-2015-bentuk-pengakuan-kualitas-pelayanan-pengaduan-di-bnp2tki/integrasi%20informasi%20&%20pengaduan https://bp2mi.go.id/program-detail/iso-9001-2015-bentuk-pengakuan-kualitas-pelayanan-pengaduan-di-bnp2tki/integrasi%20informasi%20&%20pengaduan https://bp2mi.go.id/program-detail/iso-9001-2015-bentuk-pengakuan-kualitas-pelayanan-pengaduan-di-bnp2tki/integrasi%20informasi%20&%20pengaduan https://www.bp2mi.go.id/index.php/berita-detail/sebanyak-149-pmi-purn-korea-asal-jawa-timur-lolos-ujian-cbt-khusus https://www.bp2mi.go.id/index.php/berita-detail/sebanyak-149-pmi-purn-korea-asal-jawa-timur-lolos-ujian-cbt-khusus https://forjusticewithoutborders.org/standing-up-for-unpaid-wages-one-womans-fight-across-borders/ https://forjusticewithoutborders.org/standing-up-for-unpaid-wages-one-womans-fight-across-borders/ https://www.kemenpppa.go.id/index.php/page/read/29/1988/perkuat-mental-calon-pekerja-migran-perempuan-indonesia https://www.kemenpppa.go.id/index.php/page/read/29/1988/perkuat-mental-calon-pekerja-migran-perempuan-indonesia vol. 4, no. 2, july 2020, pp. 211-228 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3600 e-issn 2549-0680 211 do indonesian laws and policies on covid-19 countermeasures action reflect legality? i made arya utama* faculty of law, udayana university, bali-indonesia article received: 29th april 2020; accepted: 26th july 2020; published: 30th july 2020 abstract every citizen has the right to access the resources and health facilities, social security, health services, as well as attaining the highest degree of health. at the present, covid-19 has become a global pandemic and has been declared a non-natural disaster, which could potentially be related to the citizen’s right to health as regulated with statutory law. this article analyses the dynamics that reflect the legality of national statutory law in the response covid-19 in indonesia. this article is based on normative legal research using a statutory approach and conceptual approach. the study found that the right to health has properly been regulated in the constitution as well as human rights and health-related legislations, reflecting the presence of the state to interfere with the health problems of its citizens. besides, this study suggests that legal culture, as a component of legal system theory, remains an issue in the efforts of handling the pandemic. there is still a part of the society that is not able to readily and consciously participate and involve in the response to covid-19 in indonesia. keywords: covid-19 countermeasures action; legality; legal culture; indonesia. how to cite: utama, i made arya. “‘do indonesian laws and policies on covid-19 countermeasures action reflect legality?.” udayana journal of law and culture 4, no. 2 (2020): 221–228. https://doi.org/https://doi.org/10.24843/ujlc.2020.v04.i02.p05 doi: https://doi.org/10.24843/ujlc.2020.v04.i02.p05 1. introduction in terms of conceptual and ideology, indonesia is classified as a state that tends to follow an open welfare state.1 the realization of the welfare state is marked by the active role of government and their presence to guarantee, protect, to respect, and to fulfill the citizen's constitutional rights.2 the right to health is one type of human rights or constitutional rights in the second generation of human rights. furthermore, the right to health * email/corresponding author: email: arya_utama@unud.ac.id 1 see alfitri, “ideologi welfare state dalam dasar negara indonesia: analisis putusan mahkamah konstitusi terkait sistem jaminan sosial nasional,” jurnal konstitusi 9, no.3 (2012): 467470, 2 irene istiningsih hadiprayitno, "defensive enforcement: human rights in indonesia," human rights review 11, no. 3 (2010): 378. https://doi.org/10.24843/ujlc.2020.v04.i02.p05 mailto:arya_utama@unud.ac.id do indonesian laws and policies on covid-19 countermeasures action reflect legality?. i made arya utama 212 in specific physical and spiritual prosperity as one type of basic human rights or constitutional rights requires an active role of government to guarantee, protect, respect and fulfill it.3 in the indonesian constitution, the right to health is specifically regulated in article 28 h (1), that stated: “every person is entitled … to acquire a good and healthy living environment as well as be entitled to obtain health care”.4 it means that the right to health is considered as one of the constitutional rights that need an active role of government to implement the right to health.5 the continuing spread of corona virus disease-19 (hereinafter referred to as covid-19) in indonesia forces the government to issue a series of policies in handling infectious diseases. in principle, the government is responsible for the implementation of health services as part of the implementation of good governance and the mandate of the constitution to ensure a decent life in a healthy environment and obtain health services as a consequence of achieving progress and social welfare.6 from an academic point of view, there is a concern about how the government ensures the implementation of the right to health, through strategic and tactical steps during this pandemic situation. almost all national agencies and sectoral ministries in indonesia play a role in addressing pandemic-related problems. the first and most important one is the ministry of health. when the pandemic is declared potential to be spread internationally, the ministry of health in january 2020 adopted several preventing policies in the form of circulars to ensure the readiness of regional health departments, port health offices, center for environmental health and disease control engineering, and referral hospitals to anticipate the pandemic.7 the ministry of health has continuously issued a series of 3 firdaus firdaus, ”pemenuhan hak atas kesehatan bagi penyandang skizofrenia di daerah istimewa yogyakarta”, jurnal ilmiah kebijakan hukum 10, no. 1 (2016): 92-93. 4 i gede yusa and bagus hermanto, ”implementasi green constitution di indonesia: jaminan hak konstitusional pembangunan lingkungan hidup berkelanjutan”, jurnal konstitusi 15, no. 2 (2018): 313-314. 5 made adhitya anggriawan wisadha and grita anindarini widyaningsih, “human rights and the environmental protection: the naïveté in environmental culture” udayana journal of law and culture 2, no. 1 (2018): 76-77. doi: https://doi.org/10.24843/ujlc.2018. v02.i01.p04. 6pocut eliza, et.al., laporan akhir kelompok kerja analisis evaluasi hukum mengenai pemenuhan hak kesehatan (jakarta: pusat analisis dan evaluasi hukum nasional badan pembinaan hukum nasional kementerian hukum dan ham ri, 2017), 216. 7 circular of director general of disease prevention and control no. sr.03.04/ii/55/2020 concerning preparedness for the spread of pneumonia from the people's republic of china to indonesia, dated 6 january 2020; circular of director general of disease prevention and control sr.02.02/ii/270/2020 concerning preparedness guidelines for coronavirus novel infection (2019-ncov), dated 28 january 2020. circular of director general of disease prevention and control hk.02.02 / ii / 329/2020 concerning increased awareness of 2019-ncov infection as a world public health emergency (kkmmd) / pheic, dated 31 january 2020; circular of director general of health services no. yr.01.02/111/0027/2020 concerning hospital preparedness in handling emerging infectious diseases, dated 7 january 2020 udayana journal of law and culture vol. 4 no. 2, july 2020 213 regulations, circulars, guidelines, decrees, and regular public announcements.8 this includes the issuing of guidelines for prevention and control of covid-19, delivering the self-isolation protocol,9 organizing the means of public communication to informing the development of the pandemic,10 and appointed referral hospital in all provinces.11 besides, the minister of health holds a strategic authority to approve a large scale social restriction to be established by regional governments in certain areas.12 the ministry of religious affairs also plays a role in ensuring religious activities are not becoming the media of spreading the covid-19. the minister issued circular to manage activities in house of worship, that usually attended by many involve many peoples, are according to health protocol.13 the ministry of law and human rights also issued policies in the context of immigration that restricted the coming of international travelers from various suspected countries and areas.14 since march 2020, medias mostly reported the role of the national agency for disaster countermeasure (badan nasional penanggulangan bencana/bnpb) after the president of indonesia appointed the head of bnpb as the chief of task force for the acceleration of covid-19 handling as well as determined the task force secretariat is at bnpb.15 in july 2020, the president conducted a restucturization. the taskforce was incorporated into a newly established committee for the handling of covid-19 and national economic recovery in order to accelerate the handling of corona virus disease 2019 (covid-19) as well as recovery and national economic transformation.16 the creation of such committee was motivated by the fact, that the pandemic has had an impact on people's lives in social aspects, 8 the latest is decree of the minister of health of the republic of indonesia no. hk.01.07/ menkes/413/2020 concerning guidelines for prevention and control coronavirus disease 2019 (covid-19) 9 circular of minister of health no. hk.02.01/menkes/202/2020 concerning the selfisolation protocol in handling corona virus diesease (covid-19) 10 circular letter no. hk.02.01/menkes/199/2020 concerning the communication of covid-19 handling 11 decree no. hk.01.07/menkes/169/2020 concerning the establishment of a reference hospital for the prevention of certain emerging infection diseases. 12 article 2 of government regulation no. 21 of 2020 concerning large-scale social restrictions in the framework of accelerating handling of covid-19 13 circular of minister of religious affairs no: se. 15 of 2020 regarding guidelines for the management of religious activities in house of worship in realizing productive communities and safe during the pandemic period. 14 regulation of minister of law and human rights no. 7 of 2020 concerning the granting of visa and residence permit in the efforts of preventing the coronavirus entry and regulation of minister of law and human rights no. 11 of 2020 concerning temporary prohibition of foreigners entering the territory of the republic of indonesia 15 article 7 and 8 of the decree of the president of the republic of indonesia no.7 of 2020 concerning task force for the acceleration of covid-19 handling 16 article 1 (1) of the of the presidential regulation of the republic of indonesia no. 82 of 2020 concerning the creation of committee for the handling of covid-19 and national economic recovery do indonesian laws and policies on covid-19 countermeasures action reflect legality?. i made arya utama 214 economy, and well-being, and has been causing a decrease in various economic activities that endanger the national economy.17 this article is written to explore the meaning of the right to health as contained in, primarily, national legal instruments. it aims to assess the right to health in legal dogmatics and to analyze the legality of countermeasures action in indonesia and the reflection of the right to health. this article is qualified into normative legal research 18 that views law as a prescriptive discipline19 and specifically focuses on the substance of the norms and system hierarchies of laws. the legal sources of this article were collected through the library research method while the normative analysis uses some approaches. the statue approach is used to examine both national and international legal instruments. the conceptual approach is related to the principle of constitutionalism in the context of the rule of law, the right to health, legality, and the politics of national law. the analysis is presented qualitatively by using prescriptive and argumentative techniques. 2. result and discussion 2.1. right to health in legal dogmatics at the international level, the “right to health” is widely acknowledged as part of the second generation of human rights along with “economic social,” “cultural rights,” “labor rights,” “right (to) health,” “rights (to) education,” and “socioeconomic rights,” 20 as generally adopted in the international covenant on economic, social and cultural rights (iccpr). this second-generation human rights require institutional support from the state to be exercised independently and singular.21 the limburg principle on the implementation of iccpr developed a set of principles on obligations in relation to economic, social, and cultural rights. on the other hand, a comprehensive framework for understanding the legal nature of the norms was found in the iccpr.22 it outlines that states parties must at all times 17 presidential regulation of the republic of indonesia no. 82 of 2020 concerning the creation of committee for the handling of covid-19 and national economic recovery, consideratios (a( and (b) 18 depri liber sonata, "metode penelitian hukum normatif dan empiris: karakteristik khas dari metode meneliti hukum," fiat justisia: jurnal ilmu hukum 8, no. 1(2014): 25-27. 19 karen petroski, “legal fictions and the limits of legal language,” international journal of law in context 9, no. 4 (2013): 488. 20 spasimir domaradzki, margaryta khvostova, and david pupovac, ”karel vasak’s “generations of rights and the contemporary human rights discourse,” human rights review 20 (2019): 436, 440. 21adrian vasile cornescu, “the generations of human’s rights”, dny práva – 2009 – days of law: the conference proceedings (2009) 22 united nations. economic, social and cultural rights handbook for national human rights institutions (new york and geneva: united nations publication, 2005): 7. udayana journal of law and culture vol. 4 no. 2, july 2020 215 act in good faith to fulfill the obligations they have accepted under the iccpr and have an obligation, regardless of the level of economic development, to ensure respect for minimum subsistence rights for all”.23 at the national level, the right to health aspects can be assessed through some existing laws, regulations, and policies in indonesia. in specific, the following analysis will assess the national policy direction, whether or not it conforms with international legal instruments or whether or not it can become a guideline for national health policy. the right to health is currently a legitimate constitutional right. historically, the general idea of human rights, including the right to health, was not included in the 1945 constitution of the republic of indonesia, following the results of debates between indonesia’s founding fathers during the creating process. 24 after the political reforms at the beginning of the millennium era, human rights were officially included as constitutional rights, as stipulated in chapter xa. the right to health is explicitly mentioned in article 28h paragraph (1), as follows, “every person shall have the right to live in physical and mental prosperity, to have a home and to enjoy a good and healthy environment, and shall have the right to obtain medical care.” the content of the right to health is also implied in some constitutional provisions related to the right to life,25 children's rights to live, to grow and to develop,26 and the right to access information, especially relating to health information.27 article 28i (4) of the indonesian constitution makes clear that the protection, advancement, upholding, and fulfillment of human rights are the responsibility of the state, especially the government. the state obligation with regards to the fulfillment of the right to health is becoming part of the constitutional framework of social welfare. the constitution stipulates that the state shall develop a system of social security for all people. 28 moreover, the state is responsible to provide sufficient medical and public service 23 united nations economic and social council un doc. e/cn.4/1987/17, annex, limburg principles on the implementation of the international covenant on economic, social, and cultural rights, para 7 and 65. 24 see the views of soekarno, soepomo, hatta, and m. yamin in saafroedin bahar, risalah sidang bpupki dan ppki (jakarta: sekretariat negara, 1995), 37-38. 25 article 28a of the 1945 constitution of the republic of indonesia 26 ibid. 27 ibid., article 28f. see also hernadi affandi,”implementasi hak atas kesehatan menurut undang-undang dasar 1945: antara pengaturan dan realisasi tanggung jawab negara”, jurnal hukum positum, 4, no. 1 (2019): 45-46. doi: http://dx.doi.org/10.35706/positum.v4i1. and nicken sarwo rini,”analisis implementasi prinsip non-diskriminasi dalam peraturan daerah di bidang pendidikan dan kesehatan”, jurnal ham 9, no. 1 (2018): 28. doi: 10.30641/ham.2018.9.19-36. 28 article 34 (2) of the 1945 constitution of the republic of indonesia do indonesian laws and policies on covid-19 countermeasures action reflect legality?. i made arya utama 216 facilities. 29 this indicates that indonesia can be regarded as a civilized country that adopted internationally recognized human rights standards.30 law no. 39 of 1999 concerning human rights (hereinafter, human rights law) regulates several issues of the right to health. the basic provision places it as part of the right to life, determining that everyone has the right to life and to sustain life as well as to an adequate and healthy environment. 31 some other provisions are also implicitly related to the recognition of the right to health. this includes the right to grow and develop, 32 the right to obtain communication and information (needed in relation to health);33 a series of women and children health rights34 law no. 6 of 2018 concerning health quarantine35 was created by among others considers that indonesia, as part of the world community, is committed to making efforts to prevent public health emergencies that troubling the world as mandated in international health regulation by fully respecting dignity, human rights, basics freedom, and its universal application. 36 the law also covers the issue of the right to health. it guarantees the right for everyone to receive the same treatment in administering health quarantine and the right to obtain basic health services according to medical needs, food needs, and other daily life needs during the quarantine.37 law 36 of 2009 concerning health (hereinafter, health law) article 1 no. 1 defines health as a healthy condition comprising all of physically, mentally, spiritually as well as social aspects that enable an individual to live productively both socially and economically. 38 the health law explicitly recognizes that every person has the right to health, in the meaning a right to obtain health service from health service facilities in order to realize the highest degree of health.39 it acknowledges that every person has the same right to obtaining health resources access, the right to obtain safe, quality, affordable health services and the right to independently and responsibly 29 ibid., article 34 (3) 30 insan firdaus,”pemenuhan hak atas kesehatan melalui badan penyelenggaran jaminan sosial kesehatan di indonesia”, jurnal ham 5, no. 2 (2014): 122. 31 article 9 (1) and (3) of the law no. 39 the year 1999 concerning human rights 32 ibid., article 11 33 ibid., article 14 (1) and (2) 34 ibid., articles 49 (2) and (3), 52, 53 (1),54, article 58 (1) and (2). 61, 62, 64, 65. see also rico mardiansyah, "dinamika politik dalam pemenuhan hak atas kesehatan di indonesia", veritas et justitia, 4, no. 1 (2018): 235. 35 this law revoked and replaced law no. 1 of 1962 concerning sea quarantine and law no. 2 of 1962 concerning air quarantine according to article 97 of law no. 6 of 2018 concerning health quarantine 36 law no. 6 of 2018 concerning health quarantine, consideration, letter c 37 ibid., article 7 and article 8 38 ibid., article 1 no. 1 39 ibid., article 4 udayana journal of law and culture vol. 4 no. 2, july 2020 217 determine the health services needed for themselves. 40 further, it recognizes that every person has the right to obtain a healthy environment to achieve the health standard.41 moreover, every person has the right to gain balanced and responsible information and education regarding health.42 lastly, every person has the right to gain information about their medical data including action and treatment that he/she has or will receive from the medical personnel.43 in realizing the right to health, the efforts taken are health efforts as an integrated activity/series of activities with continuous manner maintaining and improving public health degree with disease prevention, improvement of health quality, disease treatment, and recovery of citizen health lead by the government and community,44 whether in the form of promotion, preventive, curative, rehabilitative and traditional health services. as a reciprocal to the enjoyment of the right to health, the health law also imposes some obligations to every person, among others, to respect the right to health of other peoples, behave in a healthy life, and participate in social health insurance programs. 45 besides, the health law determines some government responsibilities for the availability of the environment, settings, health facilities, and resources, as well as access to information, education, and health service facilities.46 2.2. the legality of covid-19 countermeasures action in indonesia and the reflection of the right to health the government had taken anticipatory steps for the transmission of the coronavirus by increasing alertness and preparedness at national entrances (airports, ports, and land crossing borders), especially those who have direct access to wuhan or peoples’ republic of china (prc). in practice, officials at those entrances operate thermal scanner as early detection of symptoms of fever in incoming travelers.47 if anyone is indicated to be a potential suspect further examination is carried out and if necessary referred to a hospital. on 5 february 2020, indonesia has imposed travel 40 ibid., article 5. see also habib shulton asnawi & agus setiawan, ”politik hukum perlindungan ham di indonesia (studi hak-hak perempuan di bidang kesehatan”, jurnal mahkamah: kajian ilmu hukum dan hukum islam 2, no. 1 (2017): 90-91. 41 ibid.,article 6 42 ibid., article 7 43 ibid., article 8 44 ade irawan taufik,”konsistensi putusan mahkamah konstitusi dalam pengujian beberapa undang-undang terkait kesehatan”, jurnal konstitusi 16, no. 4 (2019): 774-775. 45 articles 10, 11, and 13 of the law no. 36 of 2009 concerning health 46 ibid., articles 15, 16, and 17. see also andrew rosser, litigating the right to health courts, politics, and justice in indonesia, (hawaii: east-west center, 2017), 6-7. 47 kementerian kesehatan republik indonesia, booklet tentang novel coronavirus (ncov), nomor 1, edisi februari (jakarta: kementerian kesehatan republik indonesia, 2020). do indonesian laws and policies on covid-19 countermeasures action reflect legality?. i made arya utama 218 restrictions in the form of temporary suspension of flights to and from prc. on march 5, 2020, indonesia also imposed a ban on transit or entry into indonesia for travelers who, in the last 14 days, came some suspected areas in iran, italy, and south korea. regarding public information on covid-19 can be monitored through the ministry of health's website.48 the meaning of the right to health as previously described in section 2.1. does not only to achieving the highest degree of health, but also to include physically, socially, mentally, and spiritually aspects. in an extraordinary situation like a global pandemics demands the presence of the state to take action in addressing the health problems of its citizens by adopting policies. in order to measure the legality of covid-19 action policies and countermeasures in indonesia, lawrence m. friedman’s legal system theory49 may be used. the theory suggests three important components in an operating legal system, namely:50 1. legal structure, it is parts that move in a mechanism. the structural component is associated with the indonesian criminal justice system, thus including the structure of law enforcement institutions such as the police, prosecutors, courts, and correctional institutions. 2. legal substance. it is the products of the legal system in the form of legal rules both written and unwritten.51 3. legal culture is a human attitude towards law and the legal system of beliefs, values, thoughts, and expectations. in other words, legal culture is a state of social mind and social forces that determine how the law is used, avoided, or misused.52 the next analysis will describe how friedman theory on the relevance in measuring the legality of the covid-19 countermeasures policy adopted by the national government 48 kementerian kesehatan republik indonesia, booklet pertanyaan dan jawaban terkait covid-19, nomor 2, edisi maret, (jakarta: kementerian kesehatan republik indonesia, 2020). https://covid19.kemkes.go.id/qna-pertanyaan-dan-jawaban-terkaitcovid-19/ 49 anthon f. susanto. wajah peradilan kita, konstruksi sosial tentang penyimpangan mekanisme kontrol dan akuntabilitas peradilan pidana (bandung: refika aditama, 2004), 58-59. 50 see yuliana, yuliana, “dampak pelaksanaan hukuman mati terhadap kondisi kejiwaan terpidana mati di indonesia,” indonesian journal of criminal law studies 1, no. 1 (2016): 48 51 the government's actions are not only based on written law namely the law, but also unwritten law. see zulkarnain ridlwan, "negara hukum indonesia kebalikan nachtwachterstaat," fiat justisia: jurnal ilmu hukum 5 no.2 (2011): 147-148. 52 see any ismayawati, “pengaruh budaya hukum terhadap pembangunan hukum di indonesia: kritik terhadap lemahnya budaya hukum di indonesia,” pranata hukum 6 no.1 (2011); 57, 61. ”and mella ismelina fr, "komunikasi hukum dan kepatuhan terhadap psbb," kompas.com 22 april 2020. https://covid19.kemkes.go.id/qna-pertanyaan-dan-jawaban-terkait-covid-19/ https://covid19.kemkes.go.id/qna-pertanyaan-dan-jawaban-terkait-covid-19/ udayana journal of law and culture vol. 4 no. 2, july 2020 219 2.2.1. in terms of the legal structure some national legislation requires the readiness, awareness, and cooperation between the national government, regional governments, and society. introduction part of the article has previously described some national agencies and sectoral ministries, in terms of executive powers, that play a pivotal role in dealing with the issues of covid-19. the committee for the handling of covid-19 and national economic recovery in july 2020 was then established in order to accelerate the handling of covid-19 as well as recovery and national economic transformation. 53 the committee consists of policy committee, covid-19 handling task force; and national economic recovery and transformation task force. 54 in carrying out its duties, the committee may involve the ministry, institutions, agencies, local governments, business entities, experts, academics, and other parties as needed. 55 the creation of this committee seems related to the ideal of the national government that repeatedly mentions the term ‘new normal era’ to indicate the needs of all citizens to apply a new lifestyle that compatible with proper health protocol, and at the same time, begin to work step by step to regenerate the economics. law enforcement agencies have also involved in supporting the efforts to overcome legal and societal problems arises from the pandemic. the chief of indonesian police has issued an edict to ensure the society's compliance with government policies with regards to the pandemic countermeasures, including the prohibition to organize community activities which cause a large mass gathering.56 in terms of law enforcement, all police personnel is required to take necessary policy actions in accordance with the provisions of the applicable laws and regulations if find actions that are contrary to this edict.57 those who do not obey the police's call to disperse themselves from the crowd will be charged with multiple provisions, namely article 212, article 216, and article 218 of the indonesian criminal code.58 the office of the prosecutor also takes action by applying a short prosecutor examination for crimes as stipulated in the above indonesian 53article 1 (1) of the presidential regulation of the republic of indonesia no. 82 of 2020 concerning the creation of committee for the handling of covid-19 and national economic recovery. 54 ibid., article 2 55 ibid., article 13 56 edict of chief of police of the republic of indonesia no. : mak/2/iii/2020 concerning compliance with the government policy in handling the spread of corona virus (covid-19), para 2.a 57 ibid., para 3. 58 kompas.com. "tak turuti polisi bubarkan keramaian, ini ancaman hukuman bagi mereka yang bandel", 23 march 2020, https://nasional.kompas.com/read/2020/03/23/ 15311191/tak-turuti-polisi-bubarkan-keramaian-ini-ancaman-hukuman-bagi-merekayang https://nasional.kompas.com/read/2020/03/23/%2015311191/tak-turuti-polisi-bubarkan-keramaian-ini-ancaman-hukuman-bagi-mereka-yang https://nasional.kompas.com/read/2020/03/23/%2015311191/tak-turuti-polisi-bubarkan-keramaian-ini-ancaman-hukuman-bagi-mereka-yang https://nasional.kompas.com/read/2020/03/23/%2015311191/tak-turuti-polisi-bubarkan-keramaian-ini-ancaman-hukuman-bagi-mereka-yang do indonesian laws and policies on covid-19 countermeasures action reflect legality?. i made arya utama 220 criminal core provisions, 59 but not limited to, the crime of deliberate swarming (intentional crowd).60 besides, the attorney general instructed his subordinates to make efforts, work, activities, and actions for early detection and early warning in the framework of prevention, deterrence, and mitigation of any nature of threats that may arise and threaten national interests and security in order to accelerate the handling of covid-19, among others, by implementing the investigation/security/raising functions in accordance with the duties and functions of law enforcement intelligence.61 in the context of the legal proceedings, the supreme court issued a circular that guidelines the use of e-court application in the administration of trials and the application of e-litigation in the conduct of trials.62 2.2.2. in terms of the substance of the law as previously described, several national legal instruments have been sought at the level of the constitution, laws, and implementing regulations and technical regulations related to a reflection of the right to health. specifically, concerning the action of handling covid-19 at least it can refer to a number of the following arrangements: for decades, indonesian legislations on health were created incompatible to international health standards. as an example, law no. 6 of 1962 concerning plague (hereinafter, law on plague) adopted the meaning of plague as stipulated in the 1961 international sanitary regulation concerning epidemic.63 in 1968, law on plague was later ammended by law no. 7 of 1968, classified the para-cholera el tor into quarantine diseases by considering the world health assembly's decision in the xv session regarding cholera (who xv resolution 1962 no. 38).64 59 instruction of attorney general of the republic of indonesia no. 5 of 2020 concerning policy for implementating the tasks and case handling during the prevention of covid-19 spread, second dictum para 8 .c 60 letter of attorney general of the republic of indonesia no. b-049 / a / suja / 03/2020 in 2020 concerning optimization of the implementation of assignments, functions, and authority during the efforts to prevent the spread of covid-19, addressed to all chief of high prosecutor's office, dated 27 march 2020, para 3. 61 instruction of attorney general of the republic of indonesia no. 5 of 2020 concerning policy for implementating the tasks and case handling during the prevention of covid-19 spread, second dictum para 4.b 62 circular of the supreme court of the republic of indonesia no. 1 of 2020 concerning guidelines of the implementation of the task during the prevention of corona virus disease 2019 (covid 19) in the supreme court and its judiciaries, para 1. b and 2.e 63 explanation of article 2 of the law no. 6 of 1962 concerning plague 64 law no. 7 of 1968 concerning amendment of article 3 of the law no. 3 of 1962 concerning plague, first dictum. see also wha15.38 committee on international quarantine in which the fifteenth world health assembly considered the relationship, under the international sanitary regulations, between el tor infection and classical cholera. official records of the world health organization no. 118, fifteenth world health assembly udayana journal of law and culture vol. 4 no. 2, july 2020 221 law no. 4 of 1984 concerning infectious disease (hereinafter, law on infectious diseases) was created to revoke and replace law on plague and its amendment. the elucidation of this law reflects the idea behind as well as the direction to be achieved by the law. it, among others, explains that the rapid development of technology and science will affect the environment, way of life, and the development of patterns of disease including diseases that can cause epidemics; thus a type of disease that was not originally a problem can be a problem or vice versa. disease patterns can be influenced by developments in international traffic and environmental changes.65 law on infectious diseases authorizes the minister of health to determine certain types of diseases that can cause epidemics and to determine certain areas within the territory of indonesia that have been affected by the plague as the area of the plague. 66 the law also determines that epidemic countermeasures include epidemiological investigations; examination, treatment, care, and isolation of patients, including quarantine measures; prevention and immunization; annihilation of the cause of the disease; handling of corpses due to outbreaks; public education; and other forms of countermeasures. 67 the above countermeasures shall be implemented by taking into account environmental sustainability and involve community participation actively.68 health law determines that national and regional governments ensure and provide facilities for preventing diseases to avoid or reduce the risks, problems, and adverse effects of the disease. 69 specifically, this law also covers the issue of infectious diseases. it outlines the responsibility of the national government, regional government, and the community for the prevention, control, and eradication of infectious diseases as well as their consequences. 70 the national government and regional governments periodically determine and the types and spread of potentially infectious and/or infectious diseases in a short period, and mentions areas that can be a source of transmission, may conduct surveillance of infectious diseases and determine the types of diseases that require quarantine, quarantine place, and quarantine duration.71 the government, in carrying out efforts to prevent, control and eradicate infectious diseases, may declare an area is in an epidemic or extraordinary occurrence by taking into account a reliable geneva, 8 25 may 1962, part i resolutions and decisions annexes, world health organization, geneva, september 1962 65 law no. 4 of 1984 concerning infectious disease, elucidation, part i, para 4. 66 ibid., article 3 and article 4 67 ibid., article 5 (1) 68 ibid., article 5 (2) and 6 (1) 69 article 62 (2) and (3) of the law no. 36 of 2009 concerning health 70 ibid., article 152 (1) 71 ibid., article 154 and article 155 do indonesian laws and policies on covid-19 countermeasures action reflect legality?. i made arya utama 222 research results. 72 in the implementation of the control of infectious diseases, authorized health personnel can inspect places where suspected vector and other disease sources are developing/proliferating.73 in terms of legal substance, law no. 27 of 2007 concerning disaster management (law of disaster management) can classify the spread of covid19 as a non-natural disaster.74 this law determines that the government and regional government are responsible for the implementation of disaster management that consists of 3 stages, namely pre-disaster; emergency response period; and post-disaster. 75 the law of health quarantine was then used as a legal basis by the president to issue a decree that stipulating the pandemic covid-19 as a public health emergency. 76 the national government also created regulation to provide a legal basis for establishing a large-scale social restriction. 77 some technical regulations include the substance of infectious disease handling. as an example, the regulation of minister of health no. 82 of 2014 concerning the management of infectious diseases determines that infectious disease management is carried out through public health efforts and individual health efforts.78 the regulation also distinguishes the target of infectious disease management programs based on the prevalence/incidence of illness and infectious disease characteristics, including reduction, elimination, and/or eradication.79 2.2.3. in terms of legal culture some laws and regulations put community involvement as an important aspect to address the plague. the health law acknowledges the community participation, both individually and organized, in all forms and stages of health development to accelerate the achievement of the highest degree of public health, which includes active and creative participation.80 basically, everyone can participate in the prevention of epidemics in the form of providing power, expertise, fund other types of assistance that are carried out by informing the presence of patients or suspects of plague sufferers, helping the smooth the implementation of pandemic 72 ibid., article 156 (1) and (2) 73 ibid., article 157 (2) 74 article 1 (3) of the law no. 27 of 2007 concerning disaster management 75 ibid., article 5 and 33 76 decree of the president of the republic of indonesia no. 11 of 2020 concerning the stipulation of coronavirus disease (covid-19) as public health emergency 77 government regulation no. 21 of 2020 concerning large-scale social restrictions in the framework of accelerating handling of covid-19 78 article 5 (2) of regulation no. 82 of 2014 concerning the management of infectious 79 ibid., article 8 (1) 80 article 174 of law no. 36 of 2009 concerning health udayana journal of law and culture vol. 4 no. 2, july 2020 223 countermeasures, stimulating community motivation in joining the countermeasure efforts, and other activities.81 facts in society indicate that there have been many violations of the rules that are applied for the pandemic situation. despite the massive daily based-public information regarding the catastrophic resulted from the spread of covid-19, not all peoples are comply to laws and regulations in handling the pandemic. the government decided not to apply a lock-down policy as practiced in various countries opens the opportunity for some peoples to do daily activities. therefore, preventive-curative measures are needed. the creation of technical policies, decrees, and regulations that refer to health surveillance may consider social, economic, and cultural situations of the community.82 this will ensure that those law products reflect the real life of the society. related to the regulation of large-scale social restrictions, the expected direction of the construction of legal culture is the existence of community compliance as a legal objective.83 experts also argue that a weak culture of obeying laws/rules in the community can extend the handling period of the covid-19. the legal culture is related to public observance and firmness of the authorities.84 there is also an expert who considers that the legal awareness of the public to comply with social restrictions on a large scale becomes important because these restrictions do not have criminal implications or sanctions that are coercive. the concept of legal awareness, which is related to the theory of legal culture, conceives the awareness to act in accordance with the provisions of the law, so it is a bridge that connects regulations with the legal behavior of community members. thus, no matter how good the rules that are made if it is not supported by the legal awareness of the community it will be not very useful.85 theoretically, the legal culture of a community depends on the legal culture of its members which is influenced by their educational background, environment, culture, position, and even interests.86 legal culture contains components of values and attitudes that put it within the cultural framework of society so that it is crucial for the operation of law in society.87 81 article 21 and 22 of the government regulation no. 40 of 1991 concerning the control of communicable disease 82 article 6 (1), 7(1) and (2)(a) of the regulation of minister of health no. 45 of 2014 regarding health surveillance implementation. 83 mella ismelina fr, loc.cit. 84 see for example statement by abdul hakim siagian as cited in pemerintah provinsi sumatera utara, budaya taat hukum lemah bisa perpanjang masa penanganan covid-19, 20 april 2020. https://www.sumutprov.go.id/artikel/artikel/budaya-taat-hukumlemahbisa-perpanjang-masa-penanganan-covid19 85 septa candra, psbb dan kesadaran hukum masyarakat, kolom hukum online, 8 may 2020, https://www.hukumonline.com/berita/baca/lt5eb5002b36e77/psbb-dankesadaran-hukum-masyarakat-oleh--septa-candra 86 any ismayanti, op.cit., 61 87 mella ismelina fr, loc.cit. https://www.sumutprov.go.id/artikel/artikel/budaya-taat-hukum-%20lemah-bisa-perpanjang-masa-penanganan-covid19 https://www.sumutprov.go.id/artikel/artikel/budaya-taat-hukum-%20lemah-bisa-perpanjang-masa-penanganan-covid19 https://www.hukumonline.com/berita/baca/lt5eb5002b36e77/psbb-dan-kesadaran-hukum-masyarakat-oleh--septa-candra https://www.hukumonline.com/berita/baca/lt5eb5002b36e77/psbb-dan-kesadaran-hukum-masyarakat-oleh--septa-candra do indonesian laws and policies on covid-19 countermeasures action reflect legality?. i made arya utama 224 therefore, the theory of legal culture can explain why a series of rules issued to handling the pandemic is not fully obeyed by the peoples in indonesia. 3. conclusion based on the results and discussions above, there are several conclusions as follows: 1. the right to health meaning is holistic, not only includes the achievement of the highest degree of health but also how health is measured both physically, socially, mentally, and spiritually. the right to health has been classified as a constitutional right, following its stipulation in the 1945 constitution of the republic of indonesia. it is also enshrined in some legislations, among others law no. 39 of 1999 concerning human rights, law no. 6 of 2018 concerning health quarantine, and law 36 of 2009 concerning health. this reflects the presence of the state to interfere with the health problems of its citizens. 2. the three theoretical components in the operating legal system, namely legal structure, legal substance, and legal culture are used to assess the legality of covid-19 countermeasures action in indonesia. in terms of the substance of the law, a set of statutory laws applied for the pandemic countermeasures has been in line with the meaning and reflection of the right to health. this article found a synergy between relevant agencies authorities when conducting efforts to counter measuring covid-19, reflecting a workable legal structure. the component 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countermeasures action reflect legality?. i made arya utama 228 other document eliza, pocut et.al., laporan akhir kelompok kerja analisis evaluasi hukum mengenai pemenuhan hak kesehatan. jakarta: pusat analisis dan evaluasi hukum nasional badan pembinaan hukum nasional kementerian hukum dan ham ri, 2017. kementerian kesehatan republik indonesia, booklet tentang novel coronavirus (ncov), nomor 1, edisi februari, (jakarta: kementerian kesehatan republik indonesia, 2020). kementerian kesehatan republik indonesia, booklet pertanyaan dan jawaban terkait covid-19, nomor 2, edisi maret, (jakarta: kementerian kesehatan republik indonesia, 2020). united nations economic and social council un doc. e/cn.4/1987/17, annex, limburg principles on the implementation of the international covenant on economic, social, and cultural rights wha15.38 committee on international quarantine in which the fifteenth world health assembly considered the relationship, under the international sanitary regulations, between el tor infection and classical cholera. official records of the world health organization no. 118, fifteenth world health assembly geneva, 8 25 may 1962, part i resolutions and decisions annexes, world health organization, geneva, september 1962 website content mella ismelina fr. "komunikasi hukum dan kepatuhan terhadap psbb." kompas.com 22 april 2020. https://nasional.kompas.com/read/2020/04/22/ 19272571/komunikasi-hukum-dan-kepatuhan-terhadappsbb?page=all. kompas.com. "tak turuti polisi bubarkan keramaian, ini ancaman hukuman bagi mereka yang bandel", 23 march 2020, https://nasional.kompas.com/read/2020/03/23/ 15311191/takturuti-polisi-bubarkan-keramaian-ini-ancaman-hukuman-bagimereka-yang pemerintah provinsi sumatera utara “budaya taat hukum lemah bisa perpanjang masa penanganan covid-19.” 20 april 2020. https://www.sumutprov.go.id/artikel/artikel/budaya-taat-hukum lemah-bisa-perpanjang-masa-penanganan-covid19 septa candra. “psbb dan kesadaran hukum masyarakat.” kolom hukum online, 8 may 2020, https://www.hukumonline.com/berita/baca/lt5eb5002b36e77/psbbdan-kesadaran-hukum-masyarakat-oleh--septa-candra https://nasional.kompas.com/read/2020/04/22/%2019272571/komunikasi-hukum-dan-kepatuhan-terhadap-psbb?page=all https://nasional.kompas.com/read/2020/04/22/%2019272571/komunikasi-hukum-dan-kepatuhan-terhadap-psbb?page=all https://nasional.kompas.com/read/2020/04/22/%2019272571/komunikasi-hukum-dan-kepatuhan-terhadap-psbb?page=all https://nasional.kompas.com/read/2020/03/23/%2015311191/tak-turuti-polisi-bubarkan-keramaian-ini-ancaman-hukuman-bagi-mereka-yang https://nasional.kompas.com/read/2020/03/23/%2015311191/tak-turuti-polisi-bubarkan-keramaian-ini-ancaman-hukuman-bagi-mereka-yang https://nasional.kompas.com/read/2020/03/23/%2015311191/tak-turuti-polisi-bubarkan-keramaian-ini-ancaman-hukuman-bagi-mereka-yang https://www.sumutprov.go.id/artikel/artikel/budaya-taat-hukum-%20lemah-bisa-perpanjang-masa-penanganan-covid19 https://www.sumutprov.go.id/artikel/artikel/budaya-taat-hukum-%20lemah-bisa-perpanjang-masa-penanganan-covid19 https://www.hukumonline.com/berita/baca/lt5eb5002b36e77/psbb-dan-kesadaran-hukum-masyarakat-oleh--septa-candra https://www.hukumonline.com/berita/baca/lt5eb5002b36e77/psbb-dan-kesadaran-hukum-masyarakat-oleh--septa-candra e-issn 2549-0680 vol. 6, no. 1, january 2022, pp. 23-41 doi: https://doi.org/10.24843/ujlc.2022.v06.i01.p02 this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licenses/by/4.0/), 23 community legal awareness and customary sanction to prevent littering: how penglipuran village in bali makes efforts?” ida bagus sudarma putra* faculty of dharma duta, universitas hindu negeri i gusti bagus sugriwa denpasar, indonesia abstract penglipuran is a customary village in bali that traditionally imposes a customary sanction for villagers who litter waste in the territory of the village in the form of holding a prayascita ceremony. this article aims to analyze the existence of prayascita customary sanctions in penglipuran village, the efforts to overcome littering in the village territory, and the implications of such sanctions on the legal awareness of the community. this paper combines a religious based-research in social-humanities and empirical juridical research that analyzes data and legal sources in descriptive, qualitative, and systematic methods. this research revealed that prayascita customary sanction is imposed on anyone who is decided guilty for littering in a village meeting, entails that he/she has to hold a prayascita ceremony that takes place in the village’s catus pata (crossroad). the efforts of penglipuran village to tackle littering problems are overseeing and maintaining the sanctity, sustainability, cleanliness, and orderliness of the area of the village. the programs and facilities that are implemented to control littering practice in this article can be divided into preventive and repressive measures. in terms of legal awareness, the village community has generally obeyed the customary rules. it is proven by the absence of people who have been imposed prayascita customary sanctions. it may be assessed that village members have a high community legal awareness to sort waste and put it in the rubbish bin. therefore, the sanction to hold a prayascita ceremony has never happened until now. this indicates that a clean living culture has been well internalized by the community. keywords: customary sanctions; environmental concerns; hindu ceremony; legal awareness; littering of waste. 1. introduction 1.1. background improper waste management is an environmental problem that becomes a global concern. lack of waste management may cause environmental problems such as health, comfort, orderliness, and aesthetic matters. in indonesia, the heap of garbage in 2020 was predicted to amount to 67.8 million tons and the number is likely to continue to grow. 1 in specific, plastic waste reflects one of the biggest problems in the modern world.2 waste sourced from plastic-based products that are generally used ** email/corresponding author: sudarmaputraidabagus@uhnsugriwa.ac.id and gusyoga1982@gmail.com 1 tiara aliya azzahra, “menteri lhk: timbunan sampah di indonesia tahun 2020 capai 67,8 juta ton,” https://news.detik.com/berita/d-5046558/menteri -lhk-timbunansampah-di-indonesia-tahun-2020-capai-678-juta-ton 2 kiran mustafa, javaria kanwal, and sara musaddiq, "waste plastic-based nanomaterials and their applications," waste recycling technologies for nanomaterials manufacturing (2021): 795. mailto:sudarmaputraidabagus@uhnsugriwa.ac.id mailto:gusyoga1982@gmail.com https://news.detik.com/berita/d-5046558/menteri-lhk-timbunan-sampah-di-indonesia-tahun-2020-capai-678-juta-ton https://news.detik.com/berita/d-5046558/menteri-lhk-timbunan-sampah-di-indonesia-tahun-2020-capai-678-juta-ton community legal awareness and customary sanction to prevent littering: how penglipuran village in bali makes efforts?” ida bagus sudarma putra 24 daily by human beings may consist of hazardous and toxic materials that would potentially harm both humans and the natural environments as they affect soil and waters.3 from the national law perspective, there have been several legal instruments stipulated to address the issue of waste in indonesia. this includes, but is not limited to, law no. 32 of 2009 concerning environmental protection and management (environmental protection and management law), law no. 18 of 2008 concerning waste management (waste management law), and government regulation no. 27 of 2020 concerning specific waste management. the waste management law stipulates criminal offense against individuals and corporations that carry out waste management activities without paying attention to norms, standards, procedures, or criteria that may result in public health disturbances, security disturbances, environmental pollution, and/or environmental destruction; the act of a waste manager who due to his/her negligence carries out waste management activities without paying attention to norms, standards, procedures, or criteria that may result in public health disturbances, security disturbances, environmental pollution, and/or environmental destruction. 4 besides, the waste management law also regulates the resolution of disputes related to the waste problem. 5 the pile of garbage will increase in line with the projected population growth and industrial growth. 6 lack of public awareness in environmental management creates serious environmental problems. criminal provisions and civil lawsuits seem to not become the main resolution to approach the real problem of waste. this is because environmental problems are started from people's behavior and will only be resolved with public awareness. it is generally known that cleanliness and environmental health have a direct impact on human life. garbage does not only threaten the environment in cities but also rural areas and villages. penglipuran village is a great example of how hukum ad at (customary law) regarding the prohi bition of trash disposal is effectively applied in maintaining cleanliness and environmental sustainability. the rule determines that any member of the village who violate s it will be imposed sanctions by prajuru.7 from the 3 hannah m diaz, “plastic: breaking down the unbreakable,” fla. coastal l. rev. 19, (2018): 85. 4 see law no. 18 of 2008 concerning waste management, arts. 39-43. 5ibid, arts. 33-38. 6 yosi agustina hidayat, saskia kiranamahsa, and muchammad arya zamal, “a study of plastic waste management effectiveness in indonesia industries,” aims energy 7, no. 3 (2019): 350. 7 according to article 1 number 15 of the bali provincial regulation no. 4 of 2019 concerning customary villages in bali, the prajuru of the customary village is the management of the customary village. udayana journal of law and culture vol. 6 no. 1, january 2022 25 laws of nature, the breach of customary law may cause bad luck.8 this customary sanction may also be regarded as customary criminal law.9 penglipuran village is a customary village in bali province, indonesia. the customary village is a type of village that was genuinely conceived, accepted, and inherited by balinese people that has existed since time immemorial,10 and guides and manages the life of its village members based on balinese customary law. 11 in terms of national government administration, penglipuran village is part of the area of kubu village, bangli regency, bali province. in 1995, penglipuran became the first example of a tourism village in indonesia. 12 this village has also received the kalpataru award, a prestigious award given for the action to preserve and protect the environment in indonesia. penglipuran was also chosen as the third cleanest village in the world according to international magazine boombastic, after mawlynnong in india and giethoorn in the netherlands.13 one form of effective social control in the community is to apply customary law and impose customary sanctions. the regulatory system in customary villages is generally manifested in a codified customary law that is called awig-awig. 14 basically, awig-awig regulates the standard of behavior of everyone, especially, the customary village members, in the territory of the customary village. however, this awig-awig does not only regulate the relationship between people in the society but also regulates the relationship between people and god, and people and the environment. every single customary village in bali has its own awig-awig that even though upholding similar philosophy and principles, it may also adopt different specific rules and traditions. in the context of the writing of this article, penglipuran village has established its awig-awig that adopts 8 jacqueline d. lau, georgina g. gurney, and joshua cinner, “environmental justice in coastal systems: perspectives from communities confronting change," global environmental change 66, (2021): 7. 9 customary criminal law holistically animates all levels of legal science in legal practice. therefore, the existence of the legal dimension of customary criminal law as a characteristic of legal practice in indonesia is essentially unquestionable. see lilik mulyadi, “eksistensi hukum pidana adat di indonesia: pengkajian asas, norma, teori, praktik dan prosedurnya,” jurnal hukum dan peradilan 2, no. 2 (2013): 244. 10 see paskalis nyoman widastra, et. al., “the customary village hegemony in bali towards minority groups,” international journal of multicultural and multireligious understanding 7, no.7 (2020): 451. 11 all customary village in bali shares the same philosophy and general religious practice based on hindu. however, some customary villages also inherited communal belief and local practice based on each peculiarity. 12 the determination of penglipuran village as a tourism village can be seen in bangli regent regulation no.16 of 2014 concerning tourism villages in bangli regency. 13 portal informasi indonesia, “desa wisata; udara desa penglipuran terbersih di dunia,” https://indonesia.go.id/ragam/pariwisata/sosial/udara -desa-penglipuranterbersih-di-dunia 14 md putri wiyantari sutaryantha and bevaola kusumasari, “indigenous collaborative governance: an understanding of decision-making process at desa adat in bali, indonesia," udayana journal of law and culture 4, no. 2 (2018): 121. https://indonesia.go.id/ragam/pariwisata/sosial/udara-desa-penglipuran-terbersih-di-dunia https://indonesia.go.id/ragam/pariwisata/sosial/udara-desa-penglipuran-terbersih-di-dunia community legal awareness and customary sanction to prevent littering: how penglipuran village in bali makes efforts?” ida bagus sudarma putra 26 prayascita sanction for those who are proven to have committed improper waste disposal. the application of customary sanctions for the violation of village rules on the prohibition of littering is in line with hinduism. hindu law is a moral understanding and life guidance to become a better human being. to be able to apply it in the community and provide sanctions for violations, hindu law should be formulated into customary law. 15 manawa dharmasastra, a compendium of hindu law also covers a regulation against littering. it is in adyaya iv sloka 56 which states as follows: “napsu mutram purisam va sthivanam va samutrsjet amedhya liptam anya d va lohitam va visani va” (it means, anyone should not urinate or defecate in the waters of rivers, lakes, and seas; spit; speak dirty words; and throw garbage, blood, or anything venomous or poisonous). it is therefore interesting to analyze the application of such hindu-based customary sanctions in preventing the practice of littering in penglipuran village. 1.2. research problem this article formulates three research problems as follows: 1. how is the existence of prayascita customary sanctions in penglipuran village? 2. how are the efforts to overcome littering in penglipuran village? 3. what are the implications of the application of prayascita sanction on the legal awareness of the community? 1.3. method this research is a combination of a religious based-research in socialhumanities and empirical legal research that uses empirical legal research methods. the nature of the research is descriptive, while the form of qualitative data are primary data sources (in the form of observations and interviews) and secondary data (in the form of primary, secondary, and tertiary legal materials). data, sources, and resources are collected from observation, interviews, and literature study. observations were made directly in penglipuran village, bangli, bali, indonesia while interviews were conducted with i wayan supat, the bendesa (head) of the penglipuran village on october 1, 2020 and on january 13, 2022. determination of research informants uses probability sampling techniques while research instruments use interview guides equipped with digital recording means. the analysis is conducted in a descriptive qualitative manner. 15 i nengah lestawi and dewi bunga, “the role of customary law in the forest preservation in bali,” journal of landscape ecology 13, no.1 (2020): 29. udayana journal of law and culture vol. 6 no. 1, january 2022 27 1.4. theoretical framework previous studies conducted by several researchers discussed topics that relative similar to, or related to this paper. those, among others, are desta ardiyanto who discussed local wisdom-based land management in penglipuran village;16 made agus dwi pradnyana dita, et. al. who studied penglipuran as an educational village based on tri hita karana in elementary character development;17 i gede januariawan who conducted a hindu theology-based research regarding the environment in penglipuran pakraman village;18 and m. taufan qolby and m. tsani alhaq who made a study on local wisdom-based community care in the efforts to preserve the environment in penglipuran village.19 the similarity between the present research and the previous researches is using penglipuran village as the location and object of research. however, the present study takes more emphasis on the legal culture of the indigenous people of penglipuran village in protecting the environment. in this study, the theory of legal functions and the theory of legal awareness are used as theoretical basis. this theory is often associated with a a very famous adagium “ubi societas ibi ius”, that generally understood as “wherever there is society, there is law”. 20 law exists in every society, anytime and anywhere. 21 this means that the existence of law is very universal, apart from the state of the law itself, it is very much influenced by the style and color of the people (law also has a unique character, depending on the development and changes that occur in a community). in the history of legal thought, there are two understandings about the function and role of law in society, namely: a. the legal function is to follow and validate (justify) changes that occur in society, meaning that law is a means of social control . b. the law functions as a means of making changes in society.22 16 desta ardiyanto, “local wisdom-based land management in penglipuran village ,” journal of green growth and environmental management 8, no. 2 (2019): 80-89. 17 made agus dwi pradnyana dita, et. al., “penglipuran sebagai desa edukasi berbasis tri hita karana dalam pengembangan karakter sd,” indonesian values and character education journal 2, no. 2 (2019): 97-105. 18 i gede januariawan, “the environment in penglipuran pakraman village: a study of hindu theology,” hindu religion research journal 3, no. 1 (2019): 65-74. 19 m. taufan qolby and m. tsani alhaq, “kajian kepedulian masyarakat berbasis kearifan lokal dalam upaya pelestarian lingkungan di desa penglipuran bali ,” jurnal ilmiah pendidikan lingkungan dan pembangunan 20, no. 2 (2019): 1-12. 20 keebet von benda-beckmann and bertram turner, “anthropological roots of global legal pluralism,” in the oxford handbook of global legal pluralism, ed. paul schiff berman (oxford handbook online, 2020), 16. 21 hamzah, haidarsyah muhammad, and zulkarnain zulkarnain, “customary law impact in the development of indonesia’s criminal code,” journal of critical reviews 7, no. 3 (2020): 233-236. 22 diyanto, “peran dewan perwakilan rakyat daerah (dprd) dalam pembentukan hukum daerah,” dinamika: jurnal ilmiah ilmu hukum 25, no. 10 (2019): 4-5. community legal awareness and customary sanction to prevent littering: how penglipuran village in bali makes efforts?” ida bagus sudarma putra 28 in carrying out its function as a means of controlling social change, law has the aim of creating an orderly, peaceful, and just society which is supported by legal certainty so that the interests of individuals and society can be protected. the law can play a role in inspiring social change as well as bringing about peace and order for the whole society. this, according to subekti is illustrated in the following sentence: “the law can not only be used to reinforce patterns of habits and behavior that exist in society, but also to direct to goals which it deems inappropriate and create new patterns of behavior.”23 law has a very important function in creating peace and order in people's lives. otje salman soemodiningrat distinguishes 4 (four) functions of law, including: 24 a. law as a guide for community behavior; b. law as supervision or social control; c. law as a dispute settlement; and d. law as social engineering. in this paper, theory of legal function is used to analyzes the application of prayascita customary sanctions in penglipuran village for those who commit littering practice. another theory that is also used in this research is the theory of legal awareness, considering that legal obedience and compliance of customary rules by the village society are related to both individual and communal awareness of the society. there are four indicators of legal awareness that are consecutive (step by step), namely: 25 1. knowledge of the law is the knowledge of a person with certain behaviors that are regulated by written law, namely about what is prohi bited and what is allowed. 2. an understanding of the law is a number of information that a person has regarding the contents of a (written) rule, namely regarding the content, purpose, and benefits of the regulation. 3. attitude towards law is a tendency to accept or reject the law because of appreciation or conviction that the law is beneficial for human life, in this case there is already an element of appreciation for the rule of law. 4. legal behavior is about whether or not a rule of law applies in society, if a rule of law applies, the extent to which it applies and the extent to which society complies with it. 23 suteki. hukum dan alih teknologi (yogyakarta: thafa media, 2013),14. 24 h. r. otje salman soemadiningrat. rekonseptualisasi hukum adat kontemporer (bandung: alumni, 2011), 37. 25 ibid. udayana journal of law and culture vol. 6 no. 1, january 2022 29 2. result and analysis 2.1. the existence of prayascita customary sanctions in penglipuran village the recognition of customary communities and their traditional rights is scattered in various laws and regulations. 26 article 18b paragraph (2) of the 1945 constitution of the republic of indonesia states that “the state recognizes and respects traditional communities along with their traditional customary rights as long as these remain in existence and are in accordance with the societal development and the principles of the unitary state of the republic of indonesia, and shall be regulated by law.” further, article 97 (1) of the law no. 6 of 2014 concerning village states that the determination of a traditional village fulfills the following requirements: 1. the customary law community unit and its traditional rights are actually still alive, whether territorial, genealogical, or functional; 2. the customary law community unit and its traditional rights are deemed in accordance with the development of the community; and 3. the customary law community units and their traditional rights are in accordance with the principles of the unitary state of the republic of indonesia. the minister of villages, development of disadvantaged regions and transmigration issued regulation no. 1 of 2015 concerning guidelines for authority based on origin rights and village -scale local authorities.27 in indonesia, customary law is studied from various perspectives, such as socio-legal studies, particularly legal anthropology, constitutional law, legal pluralism, and human rights. 28 customary law still exists in various customary communities spread in islands in this archipelagic country. in bali, hukum ad at bali (balinese customary law) reflects a unique customary law as it based on the teachings of hinduism which always strive for a balance of life between god ( parahayangan), humans (pawongan), and nature (palemahan), known as the tri hita karana 26 sartika intaning pradhani, “dynamics of adat law community recognition: struggle to strengthen legal capacity,” mimbar hukum-fakultas hukum universitas gadjah mada 31, no. 2 (2019): 285. 27 this regulation states that the authority based on the rights of origin of the traditional village includes the arrangement of the organizational system and institutions of indigenous peoples; customary law institutions; ownership of traditional rights; management of customary village treasury lands; customary land management; agreement in the life of the customary village community; filling in the positions of the head of the customary village and the apparatus of the traditional village; and the term of office of the traditional village head. 28 bono budi priambodo, “positioning adat law in the indonesia’s legal system: historical discourse and current development on customary law,” udayana journal of law and culture 2, no. 2 (2018): 143. community legal awareness and customary sanction to prevent littering: how penglipuran village in bali makes efforts?” ida bagus sudarma putra 30 teachings. 29 tri hita karana is an underlying philosophy that upholds harmony and balance between religious, social, and environment. 30 every action that is deemed to disturb the balance, including violation of customary law are required to take actions to restore the balance. prajuru desa ad at (the customary village’s apparatus) has an obligation to implement awig-awig and/or pararem and settle customary law dispute. 31 in addition, the prajuru has an authority to impose customary sanctions to those who violate customary rules which have been decided through meeting forum of the villagers (paruman desa adat). 32 in legal pluralism, it is generally accepted that state is not the only institutions that have an authority to create regulations.33 many entities in the society, such as customary community are also eligible, and having social legitimation, to create customary law, meaning that they apply the function of self-governing community and self-regulating community. each customary village in bali can establish customary law, known as awig-awig that inherits values, principles, and norms from generation to generation . in its current form, awig-awig is a written rule that reflects the community’s socio-religious character based on the concept of tri hita karana that may contain customary sanctions.34 in bali, customary law and hinduism are closely related. this can be seen from the pattern of implementing customary sanctions which is always associated with the implementation of religious rituals and ceremony. it reflects that the adherence of peoples of bali to their customary laws is not only strengthened by sanctions that are external in nature, but also sanctions that are internal in nature. the implementation of customary sanctions is in the form of an obligation to carry out certain traditional religious rituals. it is based on and related to the basic philosophical values 29 the tri hita karana philosophy provides teaching guidance to krama bali as a form of devotion to god almighty (parahyangan), punia to fellow humans (pawongan), and compassion for nature (palemahan). the philosophy of tri hita karana is derived from the values of balinese local wisdom (sad kerthi), including: efforts to purify the soul (atma kerthi), preserve forests (wana kerthi) and lakes (danu kerthi) as sources of clean water, sea and beaches (segara kerthi), social harmony and dynamic nature (jagat kerthi), and build the quality of human resources (jana kerthi). 30 ni nyoman sri astuti, gede ginaya, and ni putu wiwiek ary susyarini, “designing bali tourism model through the implementation of tri hita karana and sad kertih values,” international journal of linguistics, literature and culture 5, no. 1 (2019): 13. see also article 1 number 27 bali provincial regulation no. 4 of 2019 concerning traditional villages in bali which states “tri hita karana is the three causes of happiness, namely a balanced or harmonious attitude to life between serving god, serving fellow human beings, and cherish the natural environment based on holy sacrifice (yadnya).” 31 bali provincial regulation no. 4 of 2019 concerning customary villages, art. 30 d and e. 32 ibid, art. 31 f. 33 benda-beckmann, keebet von, and bertram turner, “legal pluralism, social theory, and the state,” the journal of legal pluralism and unofficial law 50, no. 3 (2018): 262. 34 for customary sanction, see i dewa made rasta, “tindak pidana adat di bali dan sanksi adatnya.” jurnal yustitia 13, no. 2 (2019): 40-48. udayana journal of law and culture vol. 6 no. 1, january 2022 31 of customary reactions, namely to relieve the spiritual imbalance of society due to defilement (leteh). 35 from a conceptual perspective, social control mechanism is needed to enforce customary rules. as stated by soerjono soekanto, "the mechanism of social control is any process that is planned or not planned to educate, invite or even force members of the community to conform to the rules and values of the life of the community concerned.”36 humans basically want a free life, but this freedom must pay attention to the rights of others, balance in life and respect for the environment. in this regards, customary sanction may play as an instrumental part of social control for the community. it is perceived, and also believed that, violation of customary rules results in a psychological imbalance in the community. therefore, every violation should be imposed to customary sanctions, which functions as a means of restoring community psychological balance.37 for centuries, balinese peoples are used to hold purification ceremony to respond any form of imbalance, disturbance, and violations of customary rules.38 in this context, theory of legal function may be used to describe the function of the customary sanctions. wayan p. windia and i ketut sudantra explained that customary sanctions consist of artha d and a, sangaskara dand a, and jiwa d and a, which can be detailed as follows: 39 1. artha d and a is customary sanction in the form of payment of money or replacement of goods. 2. sangaskara d anda is a sanction in the form of carrying out certain hindu ceremonies, such as mecaru, pemarisud a, and prayascita, that aims to restore spiritual balance. 3. jiwa d anda is a customary sanction in the form of physical, spiritual or mental punishment, such as mengaksama, mapilaku, lumaku, mengolas-olas, nyuaka. in penglipuran village , the awig-awig covers sanctions that range from doing work as a janitor, land confiscation, or being removed from the community membership. 40 in the awig-awig in penglipuran village,41 there are 5 (five) types of sanctions, namely: 42 35 i gusti ketut ariawan. eksistensi delik hukum adat bali dalam rangka pembentukan hukum pidana nasional (denpasar: program pascasarjana program studi ilmu hukum universitas udayana, 1992), 10. 36 soerjono soekanto, op.cit., 179. 37 h. r. otje salman soemadiningrat, op.cit., 16. 38 see for example i gede yusa and ni ketut supasti dharmawan, “the balinese traditional law instrument: a realism between the balance of cosmic and human rights context,” padjadjaran journal of law 5, no. 3 (2018): 452. 39 wayan p. windia and i ketut sudantra. pengantar hukum adat bali (denpasar: lembaga dokumentasi dan publikasi fakultas hukum, 2006), 143. 40 aceng gima sugiama, “the sustainable rural tourism asset development process based on natural and cultural conservation,” advances in social science, education and humanities research (2019): 251. community legal awareness and customary sanction to prevent littering: how penglipuran village in bali makes efforts?” ida bagus sudarma putra 32 1) ayahan pinaka panukun sisipe, which is a substitute for nonfulfillment of obligations such as buying ayahan; 2) artha d and a, namely customary sanctions in the form of assets; 3) nunas pangampura (nyuaka iwang), namely apologies; 4) panyangaskara, a ceremony performed to restore the balance of the cosmos in the form of prayascita, caru and others; 5) kanorayang makraman, which is dismissed as a member of the customary village community. these sanctions are decided in a meeting forum of the villagers, called as pasangkepan or paruman desa ad at village meeting. the application of sanction always prioritizes propriety for the sake of harmony (the principle of paras paros salulung sabayantaka), which is educational and can cause embarrassment. this pamid and a is implemented with the aim of providing a deterrent effect for the offenders so that indigenous villagers can live in an orderly manner. 43 the practice of littering of waste is classified as a violation in the realm of palemahan (human relations with the environment). the pararem of penglipuran village stipulates that a littering in the territory of the village is subject to a customary sanction in the form of prayascita ceremony. this means that if a person is decided guilty for a littering, then he/she has to hold a prayascita ceremony that takes place in the catus pata (crossroad) of the penglipuran village and witnessed by prajuru and villagers. 44 with regards to the mechanism, the imposition of the sanctions is not only decided personally by the head of the village, but also by the villagers through pesangkepan meeting forum.45 the term prayascitta is derived from the words prayas which means happy and cita which means mind. prayascita is an offering, in form of banten, that functions to purify the mind or bhuana alit (the nature in the narrowest meaning, the living things including human) and bhuana agung (the universe). it is also believed to be able to purify the holy building of balinese hindus, called pelinggih. besides, banten prayascita may be used as a medium for concentration of thoughts and as holy sacrifice .46 41 awig-awig in penglipuran village was formulated on august 19, 1989 and until now there has never been revised. i wayan supat, “the legal awareness of penglipuran community village in maintaining cleanliness,” interview by ida bagus sudarma putra, bangli, january 13, 2022. 42 i wayan supat, “the legal awareness of penglipuran community village in maintaining cleanliness,” interview by ida bagus sudarma, bangli, october 1, 2020. 43 ibid. 44 ibid. 45 i wayan supat, loc.cit. 46 i made ardika yasa and ni komang wiasti , “pelatihan pembuatan sarana upakara pabersihan dalam pengabdian masyarakat pinandita sanggraha nusantara koordinator wilayah nusa tenggara barat,” selaparang jurnal pengabdian masyarakat berkemajuan 4, no. 2 (2021): 297-298. udayana journal of law and culture vol. 6 no. 1, january 2022 33 2.2. efforts to tackle littering in penglipuran village the development of tourism in penglipuran village was supported by the villagers. this can be seen from their involvement in maintaining and caring for the cleanliness and comfort of the environment, preserving culture both physically and non-physically and their participation in supporting various tourist attraction activities.47 study by m. taufan qol by and m. tsani alhaq reveals the seven efforts of penglipuran village community in preserving the environment, namely: 48 1. developing awig-awig (customary law rules) that regulate the relationship between humans and god, humans with others and humans with nature ; 2. making customary villages the highest institution at the village level that manages the village environment in general; 3. establishing customary administrators who are specifically in charge of environmental management, who are responsible to the head of village and the community; 4. sharing the responsibility to the community to protect their respective housing environment and groves (roads and waterways in front of the yard); 5. determining the materials that are permissible to be used as a yard wall and gate; 6. conducting conservation of the holy forest; and 7. carrying out gotong-royong (mutual cooperation) once a week in rotation from the respective customary organizations. one of the efforts to preserve the environment is the implementation of waste sorting to classify organic waste and non-organic waste, that has been carried out by each family head. the sorted waste will then be transported for processing to the banjaran (the smallest form of local government in bali, lower than village ).49 community involvement in waste sorting is an example of human awareness of their role as members of an ecological community. communi ty involvement in waste management is a mandate from article 28 of the waste management law and article 70 of the environmental protection and management law. efforts in the prevention of improper disposal of waste are carried out from the upstream, to tackle as close as possible to the source and run in the smallest community unit. therefore, efforts are needed from the participation of customary villages to carry out measures that are carried out by reducing, handling, and law enforcement against improper disposal of waste. through the formation of its own legal rules in the form of 47 anak agung istri andriyani, "pemberdayaan masyarakat melalui pengembangan desa wisata dan implikasinya terhadap ketahanan sosial budaya wilayah (studi di desa wisata penglipuran bali)," jurnal ketahanan nasional 23, no.1 (2017): 6. 48 qolby, m. taufan, and m. tsani alhaq, op.cit., 9-10. 49 ibid., 10. community legal awareness and customary sanction to prevent littering: how penglipuran village in bali makes efforts?” ida bagus sudarma putra 34 awig-awig or perarem to regulate the rights and obligations of the community (krama desa or villagers, krama tamiu or guest, tamiu, and business entities that are in the area of the customary village) so that they are willing to carry out and obey the rules in waste management along with the prohibitions and the sanctions. this protection, guidance, development, and empowerment is needed as a complete strengthening of the customary village in order to realize the life of krama bali in accordance with the “trisakti” principle conveyed by soekarno, as the founder of the unitary state of the republic of indonesia, in his speech on august 17, 1964, namely: politically sovereign, economically self-sufficient, and having a cultural personality.50 the role of traditional villages in the prevention of littering has actually been regulated in general as referred to in article 22 letter (j) of the bali provincial regulation no. 4 of 2019 concerning customary village in bali regarding the duties of customary villages in realizing kasukretan sakala dan niskala ( prosperity both in real and unseen world) that states "maintaining purity, preservation, cleanliness, and orderliness of palemahan desa ad at ", however this is not only the duty and responsi bility of the traditional village but also the community based on the principle of togetherness and responsibility in waste management. 51 the role of the customary village in a repressive context can be seen in articles 30 and 31 of the provincial regulation regarding the duties and obligations as well as the authority of the prajuru of customary village in the application of awigawig as previously described. in the efforts to empower and protect customary villages as one of the customary institutions, penglipuran village takes the role of a facilitator to maintain palemahan, namely overseeing and maintaining the sanctity, sustainability, cleanliness and orderliness of the area of the village. the programs and facilities that are implemented to control littering practice in penglipuran village can be divided into preventive and repressive measures that will be discussed in the following sub sub-sections. 2.2.1. preventive measures as described in section 1.4, the theory of the legal function teaches that the law serves as a guide for the community in preventing law violations. preventive efforts carried out by penglipuran village includes preventing the community from carrying out garbage disposal carelessly such as on roads, empty land, rivers and from burning garbage . besides, the penglipuran village also directs the community to obey existing regulations through appeal, socialization, and good guidance (coaching) to individuals 50 i gusti ngurah santika. menggali dan menemukan roh pancasila secara kontekstual. (klaten: penerbit lakeisha, 2020), 64-65. 51 article 12 of the bali provincial regulation no. 4 of 2019 concerning customary village in bali regarding the duties of traditional villages states "everyone who being or residing in palemahan desa adat is obliged to maintain sanctity, preservation, cleanliness and orderliness”, based on the concept of tri hita karana and sad kerthi. udayana journal of law and culture vol. 6 no. 1, january 2022 35 and community groups. the explanation of preventive measures is as follows: 52 a. appeal the role of penglipuran village as a facilitator is by providing advice to the community to dispose of waste according to the proper place and type and to use and maintain waste facilities that spread in the village territory. b. socialization the socialization carried out from the penglipuran village is a socialization about the importance of maintaining the cleanliness of the environment of the village, one of which is the movement of disposing of waste according to the place and type. the socialization was then carried out by providing understanding of existing waste management facilities and facilities such as from temporary shelters, final processing sites, integrated waste processing sites, waste reduction, waste management, then socialization regarding waste management using the 3r method (reduce, reuse, and recycle) by government, how to make compost on a household scale, waste banks and others. preventive action that is also taken by this village is to carry out socialization of the waste bank through the empowerment and family welfare group. c. coaching coaching steps are carried out by establishing a community activity program in the form of family-based waste reduction and handling, namely from the upstream which is carried out as close as possible to the source. coaching is carried out based on the government’s sapta pesona program and the empowerment and family group program. the sapta pesona program consists of security, orderliness, cleanliness, coolness, beauty, hospitality, and memories, while the empowerment and family group program consists of 10 programs, one of which emphasizes environmental sustainability. the environmental preservation is carried out by establishing an activity, namely the movement to dispose of garbage in its place, waste bank, and compost management. 2.2.2. repressive efforts customary law are values that are lived, upheld, and carried out by citizens, and are psychological in nature as values, ideals, and legal feelings that exist in social interaction according to the culture they believe in. 53 52 i wayan supat, loc.cit. 53 i ketut seregig, "legal sanction of kesepekang in balinese customary system (in perspective: empiricism theory of david hume)," fiat justisia: jurnal ilmu hukum 11, no. 3 (2017): 304. community legal awareness and customary sanction to prevent littering: how penglipuran village in bali makes efforts?” ida bagus sudarma putra 36 countermeasures with repressive measures are carried out by imposing prayascita customary sanctions to tackle violations of throwing garbage . the application of the prayascita customary sanction is one part of the form of implementing the sangaskara d and a which is regulated in this village pararem. the existence of customary sanctions is recognized by the state. this can be seen from the supreme court decision no. 1644 k/pid/1988 dated 15 may 1991. in this decision, the panel considered a person who has committed an act which according to the living law (customary law) in the area is an act that violates customary law, namely “customary offense”. thus, if later there are customary villagers who violate this awig-awig and have been given customary sanctions, then the violation cannot be filed either criminally or civilly. 2.3 the implication of prayascita customary sanctions on the legal awareness of community in essence, law is a concretization of values, in particular the legal value of a society. this value is the core of the culture of a society, especially the spiritual aspects of the society’s culture.54 legal awareness inherently exists in a society's culture. it is a matter of values that exist in humans regarding existing laws or about laws that are expected to exist and relates to the function of law and not a legal assessment of concrete events in the community.55 legal awareness is closely connected to obedience of law that indicates the effectiveness of law implementation in the society. it is because legal awareness is sourced from the elements of values and refers to dynamics situation of the community. the present article views how legal awareness, in particular on how to perceive prayascita customary sanction, may be influenced from the spiritual aspects of the society’s culture, that refers to hindu teachings. the vedic (relating to veda, hindu holy book), among others, guides the relation between humans and their natural environment. the veda teaches that human character is the most important element in conservation of natural environment because environmental effort is not only work at the physical level, but also include moral, mental, religious, and spiritual aspects.56 the indicators that affect legal awareness of the application of prayascita sanctions in tackling littering in penglipuran village can be divided into 4 (four) elements that will be discussed later. 1. legal knowledge 54 soerjono soekanto, & soleman b. taneko. hukum adat indonesia (jakarta: pt. raja grafindo persada, 2002), 337. 55 soerjono soekanto, op.cit., 215. 56 i gede januariawan, op.cit., 65. udayana journal of law and culture vol. 6 no. 1, january 2022 37 panglipuran village community upholds the principle of “keep clean, clear and green”.57 they realize that customary sanction of prayascita is regulated under awig-awig and perarem. the community has also been informed, and to some extends, involved programs related to the cleanliness of the village palemahan ad at. 2. understanding of the law penglipuran village community has an understanding that prayascita sanction is only given in case of improper waste disposal. the villagers realize that if they use facilities (lay stall, organic and inorganic waste bins, waste banks, and compost management) and participate in village’s cleaning programs, there will be no sanction to impose to them. 3. legal attitude penglipuran village rs accept the application of prayascita sanctions because they belief that it will be directly beneficial to the spiritual balance of the society in a short term, just after the ceremony held. but they also belief that it will have an indirect impact in the long term. this relates to a fact that penglipuran as a tourism village are crowdedly visited by tourists every day, meaning that the waste does not only sourced from the penglipuran village members but also potentially comes from tourists. therefore, it is very useful for maintaining cleanliness and orderliness in the palemahan of the village. 4. behavioral patterns it can be assessed that village community in general has obeyed the customary rules. it is proven by the absence of people who have been subject to the prayascita customary sanctions. the implication of the prayascita customary sanctions can be seen from the relationship between the sanctions and the legal awareness of the community in this village . first, the high understanding of the community regarding prayascita customary sanctions is encouraged by the attitudes and behavior patterns to keep the environmental clean and to maintain the sanctity of the village from defilement (leteh). second, the implications of prayascita customary sanctions are to achieve one of the purposes of law, namely to provide legal certainty in society. this implies a sense of deterrence. the customary sanctions of conducting prayascita is believed to be able to relieve the spiritual imbalance in a community as well as restoring the environment that feels polluted.58 57 desta ardiyanto, “pengelolaan lahan berbasis kearifan lokal di desa penglipuran,” jurnal green growth dan manajemen lingkungan 8, no. 2 (2019): 83. 58 agung anisca primadwiyani and aa gde oka parwata, “analisis saksi adat/kewajiban adat meprayascitta sebagai pidana tambahan ditinjau dari tujuan pemidanaan dalam ruu kuhp di indonesia,” kertha wicara 7, no. 2 (2018): 5. community legal awareness and customary sanction to prevent littering: how penglipuran village in bali makes efforts?” ida bagus sudarma putra 38 3. conclusion prayascita is an offering that functions to purify the mind and relief the spiritual imbalance of the community that may also serve as a holy sacrifice. in penglipuran village, prayascita becomes a type of customary sanction as stipulated in its written law called pararem. according to the pararem, anyone who is decided guilty for littering in a village meeting, he/she has to hold a prayascita ceremony that takes place in the catus pata (crossroad) of the penglipuran village and witnessed by the village managements and villagers. the efforts of penglipuran village to tackle littering problems are by taking role as a facilitator to overseeing and maintaining the sanctity, sustainability, cleanliness and orderliness of the area of the village. the programs and facilities that are implemented to control littering practice in penglipuran village can be divided into preventive measure (appeal, coaching, and socialization) and repressive measure. legal awareness on how to perceive prayascita customary sanction, may be influenced from the spiritual aspects of the society’s culture, that refers to hindu teachings. the indicators that affect legal awareness of the application of prayascita sanctions in tackling littering in penglipuran village can be divided into 4 (four) elements, namely legal knowledge, understanding of the law, legal attitude and behavioral patterns. it can be assessed that village community in general has obeyed the customary rules. it is proven by the absence of people who have been subject to the prayascita customary sanctions. acknow ledgment this article is written based on the research conducted by the author under the scheme of competitive research for lecturers (master degree) no. sk. 357/ppk-pend/08/2019 in 2019, funded by the directorate general of hindu community guidance, ministry of religion of the republic of indonesia. bibliography book ariawan, i gusti ketut. eksistensi delik hukum ad at bali dalam r angka pembentukan hukum pid ana nasional. denpasar: program pascasarjana program studi ilmu hukum universitas udayana, 1992. benda-beckmann, keebet von, and bertram turner. “anthropological roots of global legal pluralism” in the oxford handbook of global legal pluralism, edited by paul schiff berman. oxford handbook online, 2020. santika, i gusti ngurah. menggali d an menemukan roh pancasila secara kontekstual. klaten: penerbit lakeisha, 2020. soekanto, soerjono. kesad aran hukum d an 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https://indonesia.go.id/ragam/pariwisata/sosial/udara-desapenglipuran-terbersih-di-dunia https://doi.org/10.22304/pjih.v5n3.a3 https://news.detik.com/berita/d-5046558/menteri-lhk-timbunan-sampah-di-indonesia-tahun-2020-capai-678-juta-ton https://news.detik.com/berita/d-5046558/menteri-lhk-timbunan-sampah-di-indonesia-tahun-2020-capai-678-juta-ton https://news.detik.com/berita/d-5046558/menteri-lhk-timbunan-sampah-di-indonesia-tahun-2020-capai-678-juta-ton https://indonesia.go.id/ragam/pariwisata/sosial/udara-desa-penglipuran-terbersih-di-dunia https://indonesia.go.id/ragam/pariwisata/sosial/udara-desa-penglipuran-terbersih-di-dunia vol. 3, no. 2, july 2019, pp. 164-183 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3223 e-issn 2549-0680 164 competition law and policy harmonisation: its relation to fair competition realisation in asean single aviation market a. a. b. n. a. surya putra* faculty of law, leiden university, the netherlands article received: 30th may 2019; accepted: 24th july 2019; published: 31st july 2019 abstract a well-functioning asean single aviation market requires a level-playing field and fair competition. asean does not have a multilateral agreement on competition related issues but opts to harmonise its member states’ domestic legislation. this article asks whether this approach is appropriate to realise fair competition in asean single aviation market. it finds that mere harmonisation of laws and policies is insufficient without being complemented by effective implementation and enforcement. while regional enforcement is the ideal way of preventing and opposing unfair competition, this article also proposes the adoption of the concept of international comity as an achievable alternative to currently unequal asean competition laws or the absence thereof. keywords: asean; aviation market; fair competition; harmonisation; enforcement. how to cite (chicago 16th): surya putra, a. a. b. n. a., " competition law and policy harmonisation: its relation to fair competition realisation in asean single aviation market" udayana journal of law and culture 3, no. 2 (2019): 164-183. https://doi.org/10.24843/ujlc.2019.v03.i02.p03. : doi: https://doi.org/10.24843/ujlc.2019.v03.i02.p03 * email/corresponding author: suryaputra.aabna@gmail.com and a.a.b.n.a.surya.putra@umail.leidenuniv.nl https://doi.org/10.24843/ujlc.2019.v03.i02.p03 mailto:suryaputra.aabna@gmail.com mailto:a.a.b.n.a.surya.putra@umail.leidenuniv.nl competition law and policy harmonisation: its relation to fair competition realisation in asean single aviation market a. a. b. n. a. surya putra 165 1. introduction the association of southeast asian nations (asean),1 as a regional organisation, has set out on a mission to create a stable, prosperous, economically integrated and highly competitive single market with effective facilitation for trade and investment.2 its attempt to realize this mission is marked by the establishment of the asean economic community (aec) which has been launched and set to be effective since 2015.3 as put forward by academics, professionals, and observers, the establishment of aec must be complemented by a culture of market competition, whether business is conducted domestically or regionally. 4 however, in order to successfully create the ideal condition, asean has to adopt competition law and policy. as of now, asean is still struggling to harmonise the competition laws of its member states. one of the obstacles is that neither all member states nor asean have competition laws. the second obstacle is its practice of only making non-binding policy by standing on the principle of non-interference. conversely, over the past two decades, asean’s focus on economic integration has encompassed the aviation sector. the asean single aviation market (asam), based on three types of multilateral agreement: the multilateral agreement on air services (maas); multilateral agreements on full liberalisation of air freight services (maflafs); and multilateral agreements on full liberalisation of passengers air services (maflpas), have become fundamental components of the aec. not only is aviation the most efficient mode of transportation to connect the member states, it has a significant economic impact.5 the liberalisation of the aviation sector, which includes market access up to full third, fourth, and fifth freedoms of air traffic, as well as the relaxation of ownership and control rules, has made asean aviation a prospective competitive field for undertakings and, not to mention, a sensible destination for foreign investment. 6 in spite of that, without well-composed or uniform competition laws in the region and its enforcement, asam might as well stimulate anticompetitive practices and 1 asean consists of ten member states: brunei darussalam, the kingdom of cambodia, the republic of indonesia, lao people’s democratic republic, malaysia, myanmar, the republic of singapore, the kingdom of thailand, the philippines, and vietnam. 2 the 2008 charter of the association of southeast asian nations (hereafter ‘the asean charter’), art. 1(5). 3 asean. “bali concord ii,” http://www.asean.org/news/asean-statementcommuniques/item/declaration-of-asean-concord-ii-bali-concord-ii-3. 4 udin silalahi, “the harmonization of competition laws towards the asean economic integration,” 10 j. e. asia & int’l l. (2017): 118; udin silalahi, “accelerating the development of asean competition culture”, xii:2 l. rev. (2012): 243; see also burton ong, the regionalisation of competition law and policy within the asean economic community (cambridge: cambridge university press, 2018). 5 adli amirullah, “economic benefits of asean single aviation market”, institute for democracy and economic affairs, policy no. 56 (2018): 6. 6 ibid.: 7. udayana journal of law and culture vol. 3 no. 2, july 2019 166 unreasonable compliance costs for undertakings,7 which in the end would result in a dysfunctional internal market. this paper aims to scrutinise the harmonisation of competition laws and policies attempted by asean and what impact it has on asam, which is expected to be fully realised in 2025. subsequently, this paper questions whether the current regime of harmonisation is sufficient to achieve fair competition in asam. in answering the aforesaid problems, this paper will discuss the current competition law regime in asean, which comprises of discussions on competition laws of asean member states and the attempt to harmonise their laws. following that, the discussion will then continue to how international aviation society defines fair competition, with special reference to european union (eu) law as an example of successful aviation market convergence at the region level. further, this paper will draw on analysis of the existing legal regimes and propose ways to establish fair competition in asam before finally delivering concluding remarks. the research methodology used in this paper is a normative legal research, including studies of literature on legal principles, systematics, vertical and horizontal synchronisation, history, and comparative law.8 this research method assesses issues originating from norms in legal instruments or the lack thereof in relation to aviation market competition in the aec. the sources used vary from written international legal instruments, binding or non-binding, doctrine and domestic legislations, as well as court decisions. 2. result and analysis 2.1. overview of asean member states’ competition laws asean member states can be divided into three categories with regard to competition laws: (i) member states that have adopted a competition law regime in the previous decades including the current one; (ii) member states that adopt a purist competition regime and member states that adopt a mixed regime; (iii) member states that have their competition laws set in terms of their applicable scope and member states with laws that are silent with regards to competition. 2.1.1. time gaps in the implementation of competition laws by asean member states countries like indonesia, singapore, thailand, and vietnam have implemented competition laws and policies. respectively, those laws are amongst others: the indonesian law number 5 of 1999 on the ban of monopolistic practices and unfair business competition, singaporean competition act of 2005, the thai trade competition act of 1999, and vietnamese competition law no. 27 of 2004. each law establishes competition authorities that ensure the full implementation of competition laws in their respective countries. indonesia has a commission for supervision of business competition (kppu), singapore has the competition 7 huong ly luu, “regional harmonization of competition law and policy: an asean approach.” asian journal of international law 2, no. 2 (2012): 291-321. 8 soerjono soekanto and sri mamudji, penelitian hukum normatif, suatu tinjauan singkat, jakarta: raja grafindo persada, 2007. 12. competition law and policy harmonisation: its relation to fair competition realisation in asean single aviation market a. a. b. n. a. surya putra 167 commission of singapore, thailand has a trade competition commission, and vietnam has the vietnam competition authority for investigative purposes and the vietnam competition council that serves as an adjudicator. in the beginning of this decade, malaysia enacted its competition act of 2010, establishing the malaysia competition commission the following year. brunei, myanmar, and the philippines have just enacted their competition laws in the last four years that bring into being their respective competition authorities. the lao people’s democratic republic (pdr) has passed its competition law of 2016. cambodia is still drafting its competition law.9 because of these time differences in implementation, the character of competition laws amongst the member states show polarity. on one side the competition laws of some member states act as a stand-alone law, which only regulate competitiveness in the market. but on the other side, the competition law regime of some member states encompasses other aspects of trade. 2.1.2. the purists v. the mixed competition regimes in the region it is by no means the purpose of this analysis to suggest that one regime is better than another. it should be noted, however, that these differences may result in challenges for undertakings to comply with asean competition law regimes in respective member states. whilst the mixed regime of competition law provides not only the maintenance of competitive markets but also includes other trade law elements such as protection against restrictive trade practices, consumer protections, etc., the purist regime chooses to disregard the latter.10 the different takes on competition regimes is considered to be organic since different countries seek to address different economic issues via competition laws. indonesia, myanmar, thailand, and vietnam adhere to the mixed regime, whereas brunei, malaysia, singapore, and the philippines have purist regimes. 2.1.3. the jurisdictions of competition laws in asean member states all competition laws and laws in the region provide provisions to control mergers and acquisitions (m&a), prevent abuse of market dominance and cartels.11 however, there are differences as to what extent, in terms of jurisdiction, the competition laws can be enforced. brunei, cambodia, malaysia, the philippines, singapore and thailand adopt the extraterritorial application of their competition laws, commonly referred to as the ‘effects 9 kingdom of cambodia nation religion king. draft law on competition of cambodia. version 5.7. https://aseancompetition.org/file/pdf_file/draft%20law%20on%20competition%202018.pdf 10 ong, the regionalisation of competition law and policy within the asean economic community, 82; see also peter freeman, "is competition everything," competition law journal 7, no. 3 (2008): 214-225 11 devi lucy y. siadari and koki arai, “international enforcement of asean competition law." journal of european competition law & practice 9, no. 5 (2018): 328-335. https://asean-competition.org/file/pdf_file/draft%20law%20on%20competition%202018.pdf https://asean-competition.org/file/pdf_file/draft%20law%20on%20competition%202018.pdf udayana journal of law and culture vol. 3 no. 2, july 2019 168 doctrine’, providing that the anticompetitive action done by foreign undertakings outside their territory affect their economy. in contrast, indonesia, lao pdr, and vietnam can only apply their competition laws if foreign undertakings conduct their businesses within their territory.12 as of now, there are no specific guidance or provisions in the competition law of myanmar regarding its jurisdiction.13 2.1.4. the pathway and determination to harmonise these differences surely present challenges to asean in its attempt to have the competition laws of its member states harmonised. the first is that the organisation has to deal with how the member states that have just enacted their competition laws keep up with the pace of other member states that have implemented their competition laws in decades gone by. secondly, the divergent scopes of competition laws in each member state will present a challenge to the formulation of competition rules and, lastly, differences in jurisdiction would also present a problem of its own. nevertheless, as it has been mandated by aec, the region shall have its competition laws harmonised to better provide assurance for a common market. moreover, the presence of giant developing nations, including china and india, is considered to be putting economic pressure on asean.14 then again, asean is determined to have harmonised competition laws and policies despite having polarities in the three categories substantiated above. 2.2. the attempt to harmonise polarities to say that asean is attempting to harmonise the polarity of competition laws in the region might be an oversimplification. differences in jurisdiction and age gaps in competition regimes are not the only obstacles faced by asean. the legal systems of the member states greatly differ. they range from civil law to common law, or a hybrid of the two traditions. 15 however, in view of these obstacles, the region is still moving to harmonise its constituent competition law regimes. harmonisation of competition law aims to adjust national laws to set guidelines rather than substituting them with a supranational law.16 in the process of achieving a single market, wherein political and legal discourse on liberalisation have influence, harmonisation is usually considered as ‘setting [a] similar standard’. 17 since the conclusion of the 2007 asean 12 the law of the republic of indonesia number 5 of 1999, art. 1(5). 13 devi lucy y. siadari and koki arai, “international enforcement of asean competition law,” 331. 14 ong, the regionalisation of competition law and policy within the asean economic community, 35; see also tajul ariffin masron, “promoting intra-asean fdi: the role of afta and aia”, economic modelling 31 (2013): 43-48. 15 ridha aditya nugraha, state aid for pioneer routes under pso in indonesia against the tide within asean open skies?, (mauritius: lambert academic publishing 2017), 81. 16 andrew klip and h. van der wilt, harmonisation and harmonising measures in criminal law (van wetenschappen: royal netherlands of science 2002), 1. 17 laura spitz, “the gift of enron: an opportunity to talk about capitalism, equality, globalization, and the promise of a north-american charter of fundamental rights”, ohio state law journal, 66(2) (2005) 315; see also david w leebron, “lying down competition law and policy harmonisation: its relation to fair competition realisation in asean single aviation market a. a. b. n. a. surya putra 169 charter, in the pursuit to narrow polarities, asean has been attempting to set similar standards for competition regimes in the region by establishing asean expert group on competition (aegc), as well as adopting aec blueprints and sector specific competition rules in asam. through these instruments, member states commit to completing and implementing competition laws. 2.2.1. asean expert group on competition in august 2007, the member states established a network of competition authorities, which has been the forum for stakeholders, scholars and competition experts from southeast asia. its primary goal is to work on capacity building related to competition and assist with technical matters. one of its products is the asean regional guidelines on competition policy (“the competition guidelines”), which targets various audiences from authorities to business players and consumers.18 asean has also been organising and taking part in capacity building programmes with competition authorities from third countries and international organisations such as the organisation for economic cooperation and development (oecd), the international competition network, and the united nations conference on trade and development (unctad). the above-mentioned efforts have been considered by scholars in the region as the head start to competition law and policy harmonisation before aec blueprints were concluded. the first aec blueprint subsequently readdressed and reaffirmed the commitment of asean member states to lift differences and uncertainty of market competition in the region. 2.2.2. asean economic community blueprints upon its conclusion in november 2007, the 2015 blueprint identified the introduction of competition policies in all member states’ as a necessary measure to establish a competitive market for the aec. additionally, the blueprint also mandated asean to establish a forum to discuss competition-related matters; encourage capacity building programmes; and develop regional guideline for competition. at the time of its conclusion, only four member states had implemented competition laws. mid-way through the plan, malaysia implemented its competition law in 2011, leaving only five other member states without competition laws. by the end of the term for this blueprint, brunei, myanmar, lao pdr, and the philippines passed their competition laws, marking nine member states with competition laws. the 2025 aec blueprint is most recent instrument for the aec that includes commitments related to competition. member states, pursuant to this blueprint, have agreed to continue to work on where they left off, as well as to set new strategic measures, among others: creating competition enforcement cooperation agreements to deal with cross-border commercial with procrustes: an analysis of harmonization claims” in jagdish bhagwati and robert hudec, fair trade and harmonization: economic analysis (cambridge: the mit press 1996) vol 1, 41. 18 casse lee & yoshifumi fukunaga, “asean regional cooperation on competition policy.” journal of asian economics, 35 (2014): 77-91. udayana journal of law and culture vol. 3 no. 2, july 2019 170 transactions; developing a strategy on regulatory convergence; maintaining the asean approach to competition law and policy in the region; and considering international best practices to further enhance a single competition regime between asean member states. as the result, the aegc released its asean competition action plan 2025 (acap 2025) that has been serving as a guide to direct, or rather give suggestions, to member states. acap 2025 provides details on the strategic framework intended to set outcome expectations of competition law and policy reform from 2016 to 2025. 2.2.3. step-by-step harmonisation taking a closer look to the way asean ensures that all member states have competition laws, the approach taken by asean is a step-by-step one. rather than setting standards all at once by means of multilateral agreements, asean allows member states to work on their respective competition law regimes by themselves. this approach has been accommodated in acap 2025, which sends asean on a quest to: establish effective competition regimes in all member states; strengthen the capacity of agencies related to competition in order to effectively implement competition laws and policies; advance the regional cooperation agenda by concluding cooperation agreements; foster a competition-aware region; and move towards greater harmonisation of competition laws and policies.19 rather than enforcing a set of regional competition rules, acap 2025 started out with the predication to harmonisation that all asean countries enact generic competition laws. then it continued to ensure that by 2017, all competition laws and laws related to competitions are officially available in english to facilitate understanding. a set of in-house tools for competition agency staff is also set to be developed in the same year, whilst also preparing handbook for stakeholders every two years. the list of steady objectives per annum goes on. however, there are some most notable steps that really shows the commitment of asean to harmonising competition rules. the first is the set of goals put forward in 2018. in an effort to establishing cooperation agreements on competition, asean seeks to have common elements, guidelines, and principles on competition. a strategy paper on regional convergence of competition laws is also set to be developed. subsequently, this year, asean is expected to develop an enforcement mechanism to handle cross-border cases. such enforcement is established by a network of competition authorities in asean member states, which have their staff in an exchange programme with other member state competition authorities to increase familiarity on how competition law works in each state. the last one is probably the most ambitious amongst other steps, that is, drafting agreed principles on competition by 2022 and having it endorsed in asean by 2025. although not all of the annual goals will go as planned, like the goal to have all member states enact competition laws by 2016, it is exhilarating to see the affirmative steps being set and taken up to realise what asean has 19 asean secretariat, asean competition action plan 2025, 2. competition law and policy harmonisation: its relation to fair competition realisation in asean single aviation market a. a. b. n. a. surya putra 171 agreed to pursue. at the same time as the effort to harmonise competition laws to ensure a well-functioning aec, one of the aec sectors has seen a leap in the beginning of the second term of the asean blueprint. air transport has been considered important to connect the region and has been developed together with aec. the liberalisation agreements applicable to this sector, which have been ratified by all member states, also bring a specific competition regime to cater to the specific needs of this newly liberalised market. 2.3. the air transport sector and asean competition regime as one specific sector of the aec, air transport contributes to serve as the bridge in the air connecting people and goods within the region. airlines can now enjoy more routes enabled by the three agreements establishing asam briefly mentioned in the introduction. airlines will also be allowed to receive more foreign investment, at least those with majority shareholders amongst nationals of asean member states. thus, this newly liberalised sector also needs an effectively maintained competitive marketplace. provisions obligating member states to ensure fair and equal opportunity to compete in the single aviation market and to take action to eliminate all forms of discrimination and anticompetitive practices, either by states or airlines, are provided in all asam agreements. however, what asam does not provide is the mechanism to enforce those competition clauses. 20 2.4. steadily pacing towards harmonisation to summarise the discussion in this chapter, all polarities of competition laws of asean member states are steadily being alleviated by composing non-binding instruments to avoid resistance from member states. asean comforts member states with its step-by-step approach to harmonisation. it has to be admitted that non-binding guidelines would not be sufficient in the long term to protect the liberalised internal market, which is why a plan to formulate common principles on market competition has been set in motion. as the aec has more than one sector, the sector playing the role of connecting people within the region is also being liberalised. with this market comes its own set of concern for competition. however, since air transport is considered to have a specific economic character, before discussing about the competition provisions in asam, the following chapter will discuss the international legal framework of competition as applied in air transport. 2.5. numerous regime with identical characteristics not limited to aviation sector, competition laws differ from state to state with no unified international regulations. 21 but although there are various regimes, there are identical characteristics of competition law. as 20 pablo mendes de leon, “competition in international markets: a comparative analysis”, directorate for financial and enterprise affairs competition committee, daf/comp/wd(2014)77 (2014): 9. 21 see ruwantissa abeyratne, competition and investment in air transport, switzerland: springer international publishing, 2016, 194-195. udayana journal of law and culture vol. 3 no. 2, july 2019 172 proposed by unctad, the purpose of such law is to control and eliminate restrictive agreements, abuse of dominant positions, as well as m&a amongst undertakings. the open skies concept has changed the dynamic of airline competition, which was initially regulated under bilateral air services agreements (basas). usually, the terms of basas regulate and limit market access behaviour regarding, amongst others: routes, frequencies, aircraft capacity and tariffs. these exclusive rights were only given on bilateral basis. however, the trends of liberalisation, which has brought substantial economic and traffic growth, changes the aviation market. while routes are still heavily negotiated and predetermined within air services agreements (asas) nowadays, frequencies and capacities are adopted on the basis of “open market access” allowing competition to be freed amongst airlines.22 that also comes with a challenge, that is, the absence of globally uniform conditions for airline competition.23 the international civil aviation organization (icao), at the 38th session of its assembly in 2013, adopted a resolution dealing with competition. icao assembly resolution a38-14 states that the assembly “…urges member states to take into consideration that fair competition is an important general principle in the operation of international air services…”24 and then requests the icao council to establish a forum for enhancing cooperation, dialogue and information exchange regarding fair competition25 further, the assembly encouraged states to ensure that basic principles of fair and equal opportunity are adopted into national legislations.26 2.6. the competition law in the european union it is the belief of the eu that economic entities must have a level playing field on which to compete and that competition market conditions must be protected to ensure properly allocated resources as well as well a high level of consumer protection.27 the legal basis of eu competition law is found in the treaty of the functioning of the european union (tfeu), particularly article 101, 102, 107 and 108, which respectively regulate agreements and concerted practices that may restrict competition, abuse of dominant position, and state aid. additionally, the regulatory control of m&a control is regulated under eu regulation 139/2004. 2.6.1. prohibition on practices affecting competitions in essence, article 101(1) of tfeu stipulates that any actions which negatively impact the internal market, shall be prohibited. air law expert 22 frederico bergamasco, “state subsidies and fair competition in international air services: the european perspective." issues aviation l. & pol'y15 (2015): 29-75 23ibid., 30. 24 international civil aviation organization (icao), doc 10022, iii-6. 25 icao, doc 10022, iii-7. 26 ibid., iii-9. 27 speech of 15 september 2005 as cited in ibid.; see also chris townley, “which goals count in article 101 tfeu?: public policy and its discontents”, european competition law review 9 (2011):440-448. competition law and policy harmonisation: its relation to fair competition realisation in asean single aviation market a. a. b. n. a. surya putra 173 pablo mendes de leon explains that those prohibited practices are: a form of collusion, either written in agreements between undertakings or associations of undertakings, or a form of cooperation that is not written in any agreements (concerted practice); behaviours that may affect trade between eu states; and behaviours that result in the distortion, restriction or prevention of competition in the eu market.28 paragraph 3 of article 101 allows for an exemption to the above-mentioned practices, providing that the economic benefits of a given practice outweigh the negative impact on eu competition. even though article 101 does not specifically regulate the aviation industry, the definition of undertakings encompasses airlines. in airfreight cartel case decided by the european commission on 17 march 2017, airlines conducting in actions prohibited under article 101 are regarded to be breaching eu competition law and were thereby fined for their actions with respective waivers given to the first airlines who came forward and admitted the wrongdoing of price-fixing29 2.6.2. prohibition on abuse of dominant position article 102 of tfeu prevents the abuse of a dominant market position by an undertaking. the phrase ‘dominant position’ is not used or defined anywhere in tfeu but deemed to mean substantial market power.30 in a 1978 decision from the european court of justice, an interpretation of the term ‘dominant position’ is given as a position of economic strength created by an undertaking that enables the preclusion of competition, which establishes economic independence over customer, consumer, and its competitors.31 the fundamental goal of this article 102 is to prevent monopolies, which limits competition in private industries that effects consumer interests and society in general.32 the dominant position of an undertaking is in itself not illegal, providing that such undertaking competes on the merits of its business and does not use its position to limit productions, market entrance, and the technical development of other undertakings, or imposing unfair prices upon consumers.33 as pointed out by mendes de leon, over the past two decades, there is little case law on the application of article 102 in the aviation sector. the cases usually “… involve airline or airport behaviour, principally in relation to pricing of airport services…”.34 2.6.3. state aids 28 pablo mendes de leon, introduction to air law, 10th ed., (alphen aan den rijn: wolters kluwer 2011), 102. 29 case at.39258 — airfreight 30 abeyratne, op.cit., p. 201. 31 united brands v. commission, case 27/76 [1978] ecr 207 [1978]1 cmlr 429. 32 ruwantissa abeyratne, competition and investment in air transport, 200. 33 ibid.; see also case 85/76 hoffman-la roche para. 38. 34 mendes de leon, introduction to air law, 105. udayana journal of law and culture vol. 3 no. 2, july 2019 174 article 107 to 109 of tfeu regulates state aid. these articles prohibit member states from financially aiding or giving resources to undertakings, given that such state involvement in a free market causes market distortion or threatens to distort competition by favouring a given undertaking or undertakings. however, state aid may be given, providing that such aid: does not adversely affect trading conditions; 35 has terms and conditions similar to that given by private investors who operate under normal market conditions;36 and that aid is proportional for the purpose of restructuring or jump-starting a company.37 the eu has been applying this provision to air transport for twenty years, starting with the decision of the eu commission on belgian aid to its former airline sabena, which was brought to attention in 1989. prohibition on state aid to airlines, regardless whether it is privately or state-owned, has therefrom been applied to airlines that do not satisfy the ‘exceptional measure’ principle when they are given aid by a state.38 as a consequence, many eu flag carriers have gone bankrupt, including sabena, swissair, and malev.39 nevertheless, the primary objective of the state aid provisions is to ensure the proper functioning of the single european market, including the ‘level-playing field’ that the eu has been trying to achieve. that concern is laid down in the 2014 state aid guidelines (sag), which justifies certain categories of aid to regional airports and airlines, while still supressing the negative effects state aid brings to competitions if not given thoughtfully in line with articles 107 to 109 tfeu.40 2.6.4. mergers and acquisitions control the stipulation of m&a is laid down under eu regulation 139/2004 on the control of concentration between undertakings. this regulation obligates undertakings conducting m&a to notify the eu commission, which the commission has the power to either prevent, conditionally approve or simply approve.41 the obligation substantiated above is applied whenever the mergers and acquisitions have an eu dimension, that is: (i) in relation to ventures involving a worldwide turnover for over five billion euros; or (ii) community-wide turnover for over 250 million euros.42 35 tfeu, art. 112(3). 36 pablo mendes de leon, introduction to air law, 117. 37 ibid. 38 see mendes de leon, “competition in international markets: a comparative analysis”. 118. “exceptional measure allowing state aid to be approved by eu commission, inter alia: (i) the establishment of a restructuring plan for undertakings which must be focused on the core of business of transport of passengers on the most profitable routes; (ii) the obligation of air carriers to contribute to the restructuring operation; (iii) the allowance of temporary restricting support only, limited in both amount and time; (iv) the obligation to pay back the loan given by the government; (v) airline recapitalisation; and (vi) the ‘one time last time’ condition, meaning airline may only be funded by member states once every ten years”. 39 sabena case decision (2001); swissair (2001); malev (2009). 40 communication from the commission — guidelines on state aid to airports and airlines oj c 99, 4.4.2014, 3–34 41 european council regulation (ec) no. 139/2004, art. 4. 42 ec 139/2004, art. 1. competition law and policy harmonisation: its relation to fair competition realisation in asean single aviation market a. a. b. n. a. surya putra 175 since the adoption of this regulation, the eu commission has assessed mergers among airlines within the eu and beyond. in most cases such mergers, when involving intra-eu carriers, were granted on the condition to surrender slot allocation at airports and decreasing frequencies to allow new players the opportunity to compete within the routes the merged airlines were previously exercising.43 this regulation also applies to m&a between eu and non-eu airlines as well as mergers of non-eu airlines flying in the eu, allowing the eu commission to review mergers of united airlines and usair, delta and panam, singapore airlines and virgin, as well as swissair and south africa with eu m&a regime. 2.6.5. realisation of free market ensuring equal opportunities for business players as a supranational organisation, the eu has proven itself capable of establishing a successful internal market. eu competition law functions well and has set up a liberalised market with a high degree of freedom for undertakings to act within. 44 the substantiation of eu competition law above shows decoupling of states and commercial interest, especially regarding state aid. the eu has made a regime that can develop remedies to mitigate what it considers as unfair actions or practices that may disrupt the liberal functioning of its internal market. that is of course in light of the fact that the legal framework is accompanied by sufficient enforcement bodies such as the eu commission. historically, provisions for the enforcer of competition regulations in the eu has undergone several amendments. the eu competition regime has been enforced by its director general for competition (dg comp), which was granted authority by ec regulation no. 17.45 with its authority, dg comp has implemented a centralised common competition regime, identified competition policy as a key factor to successfully establish the single european market, and concluded the 1989 merger control regulation.46 the most recent reform for competition related matters is ec regulation 1/2003, in which competition enforcement has been decentralised with a network of competition authorities in the eu working together in addition to courts of eu member states.47 its success in implementing and enforcing competition law, not only within the organisation but also in neighbouring countries, such as switzerland, has given the eu a gravitas in discussions on the harmonisation of regional competition law. that said, discussion on the asean competition regime below will have reference and comparison with eu competition law as explained above. 43 mendes de leon, introduction to air law, 112. 44 ibid., 121. 45 david j. garber, “two forms of modernization in european competition law.” fordham international law journal 31, no. 5 (2008): 1235-1265. 46 michelle cini and lee mcgowan, competition policy in the european union, (pelgrave: hampshire 2019), 19. 47 ong, the regionalisation of competition law and policy within the asean economic community, 47; mendes de leon, introduction to air law, 103. udayana journal of law and culture vol. 3 no. 2, july 2019 176 2.7. identifying fair competition in asean having explained what practices are considered unfair in the eu, it is now time to learn how asean defines what fair competitive practices are in its market. 2.7.1. unfair competition as identified in asean competition guideline much like the eu, asean opts to identify what makes competition unhealthy to get a grasp on ensuring fair competition in its market. the asean competition guidelines provide that the national competition laws asean member states should include the prohibition of: anti-competitive agreements; abuse of dominant position; anti-competitive mergers, and other restrictive trade practices.48 those prohibitions were actually retrieved from the implemented competition laws in asean member states that have so far implemented and enforced its laws, which mirror most eu competition rules explained in the previous section. the prohibited practices above are defined not too distinct from that of the eu. though concerted practices as a form of collusion is not explicitly regulated in asean, the provision does mention that prohibited agreements encompass formal and non-formal agreements. the abuse of dominant position, on the other hand, regulated in the majority of asean member states competition laws, has various definitions in each respective national competition regime. on anticompetitive mergers, while the laws in asean countries provide minimum market share requirements and a turnover threshold above which merger should be notified, not all laws apply to mergers extraterritorially, as explained in the second section of this paper.49 state aid is what actually highlights the differences between asean and eu competition laws, as the eu has substantially regulated state involvement in free markets. in southeast asia, state aid may fall under ‘other restrictive commercial practices’, which is interpreted differently throughout the region. this missing element of competition law is due to the presence of state-owned companies in asean countries that receive direct capital injection and are controlled by states.50 2.8. whether asam can operate well under collective national competition laws over the past decades, aviation industries have experienced a spike in economic growth. the factors of such growth range from the conclusion of asas to capital injections from states to airlines and other players in the industry. 48 asean secretariat, asean regional guideline on competition policy, (jakarta: asean secretariat 2010), 6 49 asean secretariat, handbook on competition policy and law in asean for business 2017, (jakarta: asean secretariat 2017). 50 see oecd, “the case of singapore and other asean economies”, in state-owned enterprises in the development process, oecd publishing paris (2015), https://doi.org/10.1787/9789264229617-5-en. https://doi.org/10.1787/9789264229617-5-en competition law and policy harmonisation: its relation to fair competition realisation in asean single aviation market a. a. b. n. a. surya putra 177 maas, the first agreement establishing asam, provided open market access for all carriers from asean on the basis of third, fourth and fifth freedom of passenger air traffic to all capital cities of asean countries. maflafs, liberating air cargo restrictions in asam, opens up access to international airports in all asean countries with the same freedoms as with passenger traffic. lastly, the maflpas provides third, fourth, and fifth freedom for flights between capital and non-capital cities of asean countries. these multilateral agreements are set to supersede current basas among member states with predetermined frequencies and flight capacities. moreover, all three agreements of asam collectively provide unlimited multiple airline designation with relaxed ownership and control rules. these liberalisations surely present consequences and changes to the current dynamics of international flights southeast asia. 2.8.1. the consequences of liberalisation in asam with what can be learned in the eu, lifting predetermined frequencies and capacity constraints, not to mention the opening of more routes, would result in airlines behaving like other undertakings. initially, because the above-mentioned elements that were predetermined in asas, market behaviours of international flight carriers in southeast asia fell outside the scope of competition law regimes. new liberal market rules might invite anticompetitive practices discussed in the previous chapter, providing that the asean competition regime is not implemented on time with that of asam. additionally, a new designation clause, which allow unlimited designations of airlines with relaxed ownership and control rules, might invite cross-border m&a between airlines in the region. at present there is no telling what asean cross-border m&a might hold. however, there is a carrier nationality clause containing of what is considered by aviation experts in the region as the gateway for an asean community carrier. there are two options on how such carrier could be established, setting aside whether it is accepted by asean countries to which the carrier such a status would be designated. firstly, the airline could be established from scratch, meaning creating new airlines with majority ownership by nationals from asean countries. alternatively, existing airlines could merge together and operate under the same community flag. the latter of course is subject to m&a control provisions in the region. 2.8.2. collective national laws’ implementation for asam practising collective competition laws only from domestic legislations is not the endgame of harmonising competition law in asean member states. as discussed in the previous chapter, asean seeks to find common principles in the region and hopes to have it done by 2025. however, as of now the competition regime in motion is the regime of that from each member state. instead of having supranational regulation that would converge domestic legislations, the future of asean competition law will be built upon domestic legislation. in a way, if we see the end result, asean will have a regional-level competition provisions structurally similar to the udayana journal of law and culture vol. 3 no. 2, july 2019 178 eu. despite that, it has been brought to attention that the success of the european single market is not only because of the supranational legislation but also because of its effective regulatory implementation and enforcement. but mere harmonisation might not be sufficient to ensure fair competition in asean. 2.9. contemplating the ways forward 2.9.1. learning from eu internal aviation market learning from the eu would be a difficult task for asean. as an organisation, asean does not have a supranational body built into its structure. the absence of this results in the inability to impose uniform competition rules on all member states. moreover, it is the distinctive characteristic of asean to do things the ‘asean way’, meaning that all member states shall settle any differences by negotiating to reach a consensus. in addition, because of the principle of non-interference and respect for sovereignty embedded within its approach, asean crystallised this consensus-based settlement mechanism into a multilateral agreement.51 on the other hand, the eu has its judicial body that gives jurisprudence to competition law as shown in the previous section. the main difference between these two regional organisations is the supranational character of the eu. unlike asean, in which competition law is decentralised from states, the root of eu competition law comes from tfeu implemented domestically by national legislation in each eu member state. the underlying reason to establish competition law in asean and the eu is also different. asean aims to achieve sustainable economy whereas the latter aims at consumers’ welfare.52 moreover, market integration in eu is perceived as the primary goal of its economic regulation, while asean uses economic integration as a tool to invite direct foreign investment, growth and market competitiveness, rather than setting integration as its main goal. the differences substantiated above will hinder asean from taking a leaf directly from the eu. nevertheless, asean should take a note that the system of the eu works for its internal market. josef drexl argues that asean might want to consider changing its way and adopt a supranational approach like the eu. he argues that competition law in the eu is underlined with a goal to guarantee the functioning of internal market. it minimises the possibility of undertaking to participate in anticompetitive practices via the lack of state jurisdiction.53 further, he suggests that supranational law works better to ensure fair and equal opportunity for all undertakings compared to national laws. that is due to the application of the uniform rules throughout the region, which foreign investors find more attractive.54 51 asean, protocol on the enhanced dispute settlement mechanism, signed on 29 november 2005. 52 ong, the regionalisation of competition law and policy within the asean economic community, 226. 53 ibid. 54 barbora valckova, “eu competition law: a roadmap for asean?” eu centre in singapore, working paper no. 25 (2015): 6. competition law and policy harmonisation: its relation to fair competition realisation in asean single aviation market a. a. b. n. a. surya putra 179 the proposed idea might work well in theory. however, there are reasons why asean refrains from adopting such a governance system. the core principle and the ‘asean way’ of dealing with things is one of the reasons. adoption of a supranational law means that member states need to give up their national sovereignty, because supranational law requires centralised decision-making coupled with national competencies.55 asean, however, should not be the reason to negate the fact that the eu supranational competition law model works in regulating a regional internal market. cherry-picking the best of eu law and combining it to asean’s regime to make a hybrid competition law, with centralised enforcement after common principles are set might be a start to a well-integrated market for aviation or other economic sectors. the argument of the previous paragraph is not intended to suggest a question as to whether the current regime of asean competition law is doomed to fail for the upcoming full realisation of asam. however, it is intriguing to hypothesise that departure from the asean way’ and adopting the eu way would work well in enforcing uniform competition rules. nevertheless, daydreaming about what could be is not going to answer the competition issues within the south east asia aviation market. 2.9.2. the role of international comity in competition even though the plan to have harmonious enforcement of competition law by national competition authorities is already set in motion, this subchapter proposes an implementation of the concept of international comity to complement existing competition rules in asean. comity historically arose from particular conflict of law issues in domestic jurisdictions. this is still the case today, along with its courteous younger diplomatic cousin ‘comity of nations’: ‘a willingness to grant a privilege, not as a matter of right, but out of deference and good will’, this form of comity has other forms such as “judicial comity”, and “comity of nations” or international comity. 56 black’s quotes two us judgements defining these forms of comity, showing that whereas the rich history of judicial comity is ‘the principle in accordance with which the courts of one state or jurisdiction will give effect to the laws and judicial decisions of another, not as a matter of obligation, but out of deference and mutual respect’,57 a comity of nations is ‘the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation…’. 58 given the power of sovereignty and non-binding character of comity, a comity of nations must be mutually beneficial, or else there is no reason for recognising another state extraterritorially. contemporary legal literature accepts comity is generally not legally binding under international law, as ulrich asserted, which has amounted to its unfettered conceptual 55 ong, the regionalisation of competition law and policy within the asean economic community, 230. 56 bryan a. garner and henry campbell black, black’s law dictionary (st. paul: mn west, 2009), 267. 57 brown v babbitt ford, inc (1977) 117 ariz 192, 571 p.2d 689, 695. 58 nowell v nowell (1966) tex civ app 408 s.w.2d 550, 553. udayana journal of law and culture vol. 3 no. 2, july 2019 180 relationships drawn with public and private international law, diplomacy, morality, and so forth. paul writes that this the advantage of comity, for it flexible as a non-binding principle yet beneficial to states if exercised.59 comity is of benefit to any competition authority dealing with market actors from outside their jurisdiction, which is ever-more important given the growth in international trade in goods and services. countries of a comity have the advantage of consulting more experienced competition regulators, requesting information on a company of interest from a relevant competition authority, or coordinating investigation efforts that are mutually beneficial to the objectives of coordinated authorities. a prominent example of comity here is the international competition network (icn): an ‘informal venue’ for all willing competition authorities to exchange information and build consensus, founded in october 2001 by officials from across the world including inter alia the eu, us, canada, japan, the united kingdom and zambia. 60 icn is a comity of national competition bodies commonly concerned with international market competition and its effects on national economies. there are no obligations to join icn or duties as a member thereto, as the common interest in consulting other competition officials, drafting recommendations and exchanging information is a mutual incentive to cooperate amongst nodes in the network with a common interest. in acap 2025, a plan on gathering all competition authorities to exchange information and work harmoniously among each other has already been accommodated. as it is asean way of respecting the sovereignty of each member state, the concept of international comity in enforcing competition law to ensure fair competition is the most likely scenario that would be easily accepted by in asean. the primary role of comity for asam is to fill the void of competition regulations in aec, 61 recognising the positions and strengths of every member state based on the common interest of establishing a highly competitive airline industry in the region. 3. conclusion though the competition laws in asean lack uniformity, their rapid development should be applauded. since the creation of aec blueprint and competition action plan in 2005, nine of asean member states have developed and implemented legislations on competition rules, even though cambodia is still in the process of drafting. this development is accelerated by the initiation of asam in 2010. however, asam also needs comprehensive and enforceable competition laws and policies in order to function well. as compared to eu competition law, it should be admitted that having a supranational characteristic may be to the benefits of making enforcement easier, but asean has its own way of decision-making which is different from that of the eu. 59 joel r. paul, “the transformation of international comity,” law and contemporary problems 71, no. 3 (2008): 19–20. 60 international competition network [icn], ‘about’ https://www.internationalcompetitionnetwork.org/about/ 61 henri wassenbergh, "the decision of the ecj of 5 november 2002 in the ‘open skies’ agreements cases." air and space law 28, no. 1 (2003): 29. https://www.internationalcompetitionnetwork.org/about/ competition law and policy harmonisation: its relation to fair competition realisation in asean single aviation market a. a. b. n. a. surya putra 181 the existing regime of asean competition law might not be sufficient to accommodate the liberalised regime of asam, as is realised by all member states. therefrom a plan is in motion to establish a comprehensive mechanism to implement and enforce competition laws throughout the region. in addition to having a regional level enforcer, the concept of international comity can play a major role in filling the absence of binding regional level regulation and enforcement. looking at the development of asean competition laws this past a decade, without departing from its core principle, asean will overcome the obstacles in the future of transitioning to a fully liberalised aviation market. acknowledgement this article is an advanced version of an essay composed by author during his study at leiden university, advanced llm in air and space law programme in 2019, on air transport competition law and policy. the author would like to express a great honour to prof. pablo mendes de leon who taught this course. additionally, the author would like to express his gratitude to kyran grattan and anak agung mia intentilia for their assistance and contribution to the composition of this paper. argument and opinion contained in this article is an academic view of the author and do not necessarily link to author’s affiliation. bibliography books abeyratne, ruwantissa. competition and investment in air transport. switzerland: springer international publishing, 2016. bhagwati, jagdish and robert hudec. fair trade and harmonization: economic analysis. cambridge: the mit press, 1996. cini, michelle and lee mcgowan. competition policy in the european union. hampshire: pelgrave, 2019. garner, bryan a. and henry campbell black. black’s law dictionary. st. paul: mn west, 2009. klip, andrew and h. van der wilt. harmonisation and harmonising measures in criminal law. van wetenschappen: royal netherlands of science, 2002. mendes de leon, pablo. introduction to air law. 10th ed. alphen aan 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(united brands v. european commission), the court of justice of the european communities case 27/76 [1978] ecr 207 [1978]1 cmlr 429. website content international competition network [icn], ‘about’. https://www.internationalcompetitionnetwork.org/about/ https://doi.org/10.1787/9789264229617-5-en https://asean-competition.org/file/pdf_file/draft%20law%20on%20competition%202018.pdf https://asean-competition.org/file/pdf_file/draft%20law%20on%20competition%202018.pdf https://asean-competition.org/file/pdf_file/draft%20law%20on%20competition%202018.pdf https://www.internationalcompetitionnetwork.org/about/ e-issn 2549-0680 vol. 6, no. 1, january 2022, pp. 62-82 doi: https://doi.org/10.24843/ujlc.2022.v06.i01.p04 this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licenses/by/4.0/), 62 job creation law and foreign direct investment in tourism in indonesia: is it better than before? i gusti ngurah parikesit widiatedja * faculty of law udayana university, bali, indonesia i nyoman suyatna ** faculty of law udayana university, bali, indonesia abstract foreign direct investment plays a critical role in a host country's economic development. tourism, with its distinct character as a service business, is one of the most appealing investment industries. it has made a substantial contribution to the creation of jobs, tax revenue, and domestic valueadded. the existence of domestic laws and regulations is critical in determining the extent to which a country's performance in getting benefits from investment can be maximized while reducing the negative impact. this article is aimed to examine whether the newly-enacted job creation law provides a better arrangement on foreign direct investment in tourism compared to the previous laws and regulations. this article employs a normative approach by analyzing relevant laws and regulations concerning foreign direct investment in tourism in indonesia. by looking at aspects on the choice of business fields, the issuance of business permit, land ownership, and labour, this article contends that job creation law fails to provide integrated and comprehensive arrangements on the existence of foreign direct investment in tourism. keywords: foreign direct investment; indonesia; job creation law; tourism 1. introduction 1.1 background foreign direct investment (fdi) is becoming gradually important to a host country's economic development.1 it has helped a host country achieve greatness by creating jobs, increasing export productivity,2 and expanding delivery channels for domestic businesses.3 fdi in tourism, particularly, has assured more jobs due to the nature of tourism, which is more labor -intensive * email/corresponding author: parikesit_widiatedja@unud.ac.id and ngurahparikesit@gmail.com ** email: nyoman_suyatna@unud.ac.id dan inyomansuyatna500@gmail.com 1 danish and zhaohua wang, “dynamic relationship between tourism, economic growth, and environmental quality,” journal of sustainable tourism 26, no. 11(2018): 1928. 2 i gusti ngurah parikesit widiatedja, “incorporating local wisdom into the consumer protection legal regime: a comparison between indonesia and australia ,” udayana journal of law and culture 1, no. 1 (2017): 32. see also regina scheyvens and emma hughes, “can tourism help to end poverty in all its forms everywhere? the challenge of tourism addressing sdg1,” journal of sustainable tourism 27, no.7 (2019): 1064. 3 canh phuc nguyen, pham thai binh and thanh dinh su, “capital investment in tourism: a global investigation,” tourism planning & development (2020). see also huiya chen and deborah l swenson. “multinational exposure and the quality of new chinese exports,” oxford bulletin of economics and statistics 76 (2014): 56. mailto:parikesit_widiatedja@unud.ac.id mailto:ngurahparikesit@gmail.com mailto:nyoman_suyatna@unud.ac.id mailto:inyomansuyatna500@gmail.com job creation law and foreign direct investment in tourism in indonesia: is it better than before? i gusti ngurah parikesit widiatedja and i nyom an suyatna 63 than agronomic sectors,4 allowing for more semi-skilled and low-skilled workers as well as an acceptable rate supported by a diverse range of pr oducts.5 indonesia has developed myriad rules in accepting fdi in tourism for maximizing the benefits and mitigating the negative repercussions of fdi. their presence will have a substantial impact on indonesia's ability to profit from fdi in the tourism sector.6 because the benefits of fdi are not automatic, effective and comprehensive nationwide laws are required to support them. nonetheless, indonesia's fdi governance is regulated by a patchwork of laws and rules. to put it another way, indonesia has failed to adopt clear and comprehensive regulations to regulate fdi, particularly in the tourism sector. overcoming this problem, law no. 11 of 2020 concerning job creation (job creation law) has given a huge expectation for better investment governance in indonesia. this law changes and replaces around 74 laws, including law no. 25 of 2007 concerning investment (investment law), that are regarded to be impediments to job development and investment in indonesia. the government claims that job creation law will be beneficial for indonesia. it includes opening up new jobs for the citizens by attracting more foreign investors, simplifying the process of opening a business, and eradicating illegal levies which are the origin of corruption.7 furthermore, the law will increase the enthusiasm of foreign investors to invest in indonesia through the simplification of various overlapping investment regulations. with the presence of investors in indonesia, it will open up a lot of job opportunities for the community, which in turn will accelerate indonesia's economic growth and strengthen indonesia's competitiveness internationally.8 however, job creation law could lead to legal uncertainty as it needs to be revised within two years. this is because the constitutional court has declared the law as conditionally unconstitutional due to lack of public participation and improper law-making mechanism.9 when the government fails to follow this decision in a timely manner, this law would be no longer 4 carvalho, miguel ángel márquez and montserrat díaz-méndez, “policies to increase business tourism income: a dynamic panel data model,” journal of convention & event tourism, 19 no.1 (2018): 64. see also soheila khoshnevis yazdi, niloofar nateghian and niloofar sheikh rezaie, “the causality relationships between tourism development and foreign direct investment: an empirical study in eu countries,” journal of policy research in tourism, leisure and events 9, no. 3 (2017): 247. 5 jonathan mitchell and caroline ashley. pathways to prosperity – how can tourism reduce poverty: a review of pathways, evidence and methods (washington d.c.: world bank, 2007), 49. 6 i gusti ngurah parikesit widiatedja and i gusti ngurah wairocana. “fragmented and unclear laws and regulations of foreign direct investment in tourism in indonesia,” padjajaran journal of law 5, no.3 (2018): 409. 7 muhammad idris, “3 benefits of job creation law for the people, which claimed by jokowi,” https://money.kompas.com/read/2020/10/11/090645726/3-manfaat-uucipta-kerja-untuk-rakyat-seperti-yang-diklaim-jokowi?page=all. 8 nur rohmi aida, “strengths and weaknesses of the job creation law from a political observer's point of view,” https://www.kompas.com/tren/read/2020/10/10/103000865/kelebihan -dankekurangan-uu-cipta-kerja-dari-kacamata-pengamat-politik?page=all 9 the constitutional court decision no. 91 /puu-xviii/2020, para [3.20.3], 413. https://money.kompas.com/read/2020/10/11/090645726/3-manfaat-uu-cipta-kerja-untuk-rakyat-seperti-yang-diklaim-jokowi?page=all https://money.kompas.com/read/2020/10/11/090645726/3-manfaat-uu-cipta-kerja-untuk-rakyat-seperti-yang-diklaim-jokowi?page=all https://www.kompas.com/tren/read/2020/10/10/103000865/kelebihan-dan-kekurangan-uu-cipta-kerja-dari-kacamata-pengamat-politik?page=all https://www.kompas.com/tren/read/2020/10/10/103000865/kelebihan-dan-kekurangan-uu-cipta-kerja-dari-kacamata-pengamat-politik?page=all udayana journal of law and culture vol. 6 no. 1, january 2022 64 in effect and, of course, there would be a significant uncertainty regarding the regulation of fdi in indonesia. 1.2 purposes this article is aimed to examine whether job creation law provides a better arrangement on fdi in tourism compared to the previous laws and regulations. by looking at aspects on the choice of business fields, the issuance of business permit, land ownership, and labour, this article contends that scrappy and confusing provisions have managed the presence of fdi in tourism. this is pretty similar to investment governance before the issuance of job creation law. 1.3 method this article adopts a normative approach by identifying and examining relevant laws and regulations concerning fdi in tourism in indonesia, as well as the outcome of research, assessment, and other references related to this issue. it employs the statute approach as it analyzes relevant legal arrangement in fdi in tourism. all data collected is then processed by using qualitative methods and the finding is descriptively explained. this paper begins by outlining the presence of fdi, including its definition and aims. the existence of fdi in tourism is then explained, as well as the expanding significance of tourism, the particular nature of tourism as a service business, and the effect of fdi in touris m in indonesia. this paper then explains some laws and regulations that govern fdi in tourism. finally, by looking at investment-related provisions on job creation law, it examines how this law has governed fdi in tourism, analysing whether it has better arrangement compared to the previous one. 1.4. literature review of foreign direct investment in tourism 1.4.1. tourism's distinctive characteristics as a business sector recognizing the importance of tourism, practically all governments are taking innovative steps to promote inclusive, competitive, and long-term tourism growth. a unified whole-of-government perspective to tourism is seen as a critical element of a successful government structure in many nations.10 these unified measures promote the consistency of policy and the efficacy of private and/or public tourist programs.11 10 i gusti ngurah parikesit widiatedja, et.al. “retire in paradise: urgensi pengaturan pariwisata pensiunan (retirement tourism) di indonesia,” arena hukum 11, no.1 (2018): 4. 11 fernando almeida-garcía, “analysis of tourism policy in a developing country: the case of morocco,” journal of policy research in tourism, leisure and events 10, no.1, (2018): 49. job creation law and foreign direct investment in tourism in indonesia: is it better than before? i gusti ngurah parikesit widiatedja and i nyom an suyatna 65 tourism, as a service segment, has notable peculiarities from most other service sectors, according to certain tourism researchers.12 as a result, these distinctions will have an impact on how the government issues and executes laws and policies relating to fdi in tourism. tourism is intangible memory and experience products that cannot be duplicated or recreated. neither can the sensation of consuming be fully appreciated.13 tourism is a collection of amenities and attractions in a destination country that includes both tangible and intangible elements such as lodging, dining, entertainment, conveyance, communication, and the openness of the local inhabitants, all of which are intertwined and accompaniment one another.14 tourism is perishable since it is created and consumed in the same area and at the same time.15 tourism accommodation and transportation providers confront the matters of matching demand-supply since a surplus of capacity that is not sold on a certain day is lost and cannot be regained.16 the seasonality of tourism demand is the next distinguishing feature of tourism. the demand for tourism items has an asymmetric temporal distribution.17 every year, there are high-demand and low-demand weeks and months. this inequitable allocation varies by country and by destination.18 human resources are crucial in the tourism industry. the contact between the employees and the client, in particular, determines the consumer's sense of quality.19 when it comes to serving tourism items, the attitude of the employees is often a critical factor. another distinctive feature of tourism is the unequal power distribution among industry participants.20 this is seen, as an instance, in disney world in orlando, where a corporation is far larger compared to other businesses operating within the destination.21 the final distinguishing aspect of tourism is the links between tourism and other policy areas such as transportation, economy, infrastructure, culture spatial plan, and local and regional development. the monetary policy impacting exchange rates may have an impact on tourists and foreign 12 see, e.g., arvid flagestad and christine a. hope, “scandinavian winter : antecedents, concepts and empirical observations underlying destination umbrella branding model,” tourism review 56, no. 5 (2001): 12. 13 ibid. 14 j.r. brent ritchie and robin j.b. ritchie , “the branding of tourism destinations – past achievements and future challenges,” http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.201.9520&rep=rep1&type=pdf, 7. 15 ibid. 16 norbert vanhove. the economic of tourism destination (oxford: elsevier butterworth heinemann, 2005), 14. 17 ibid. 18 ibid. 19 jane stacey. “supporting quality jobs in tourism.” oecd tourism papers, 2015, 9. 20 ritchie, op.cit., 25. 21 ibid. http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.201.9520&rep=rep1&type=pdf udayana journal of law and culture vol. 6 no. 1, january 2022 66 exchange.22 domestic tourist policies can boost international demand and improve the payments balance.23 next, transportation regulation may be used to encourage people to use more environmentally friendly modes of transportation.24 1.4.2. the consequences of foreign direct tourism investment fdi in tourism has provided economic benefits in developing nations that help reduce poverty in two ways.25 to begin with, one of tourism’s direct effects is an increase in the wages and incomes of entrepreneurs and workers.26 according to worldwide evidence, tourism is more labor-intensive than other non-agricultural professions.27 tourism has always been a major employer, particularly for low-skilled, female, and younger workers.28 second, tourism has unintended consequences that occur throughout the value chain. according to evidence, inter-sectoral impacts create an additional 6070 percent in poor nations, in addition to the direct effects of tourism.29 the tourism industry is also a significant source of cash for the government. while data on tourism-related tax receipts is not yet available, counting that spans expected revenues from the corporation and income tax, hotel room taxes, custom duties, and exit taxes demonstrates that tourism-related tax revenues make up a significant portion of each country's tax revenues.30 finally, tourism would elevate the level of life of the local peoples, the business climate for small and medium enterprises (smes), the local economic growth strategy, and the destination's natural resource and infrastructure base.31 local art and crafts account for a significant portion of tourists’ out-of-pocket spending, and this spending primarily represents 22 peter haxton, “a review of effective policies for tourism growth.” oecd tourism papers, 2015, 2. 23 ibid. 24 ibid. 25 xianrong luo and jigang bao, “exploring the impacts of tourism on the livelihoods of local poor: the role of local government and major investors,” journal of sustainable tourism 27, no. 3 (2019): 344. 26 mitchell., loc.cit. see also anders e. kristensen, “foreign direct investment in the chinese outbound tourism industry: the policies, participants and possibilities ,” journal of policy research in tourism, leisure and events 12, no. 1 (2020): 19. 27 hanitra rakotondramaro and louisa andriamasy, “multivariate granger causality among tourism, poverty and growth in madagascar,” tourism management perspectives 20, (2016): 109. 28 united nations conference on trade and development, “the contribution of tourism to trade and development,” http://unctad.org/en/docs/cid8_en.pdf 29 mitchell, loc.cit. see also magnus bohlin, daniel brandt and jörgen elbe, “spatial concentration of tourism – a case of urban supremacy” tourism planning & development (2020). 30 evridiki tsounta, “what attracts tourists to paradise?”, https://www.imf.org/external/pubs/ft/wp/2008/wp08277.pdf, 4. 31 united nations conference on trade and development, “sustainable tourism: contribution to economic growth and sustainable development”, http://unctad.org/meetings/en/sessionaldocuments/ciem5d2_en.pdf, 2. http://unctad.org/en/docs/cid8_en.pdf https://www.imf.org/external/pubs/ft/wp/2008/wp08277.pdf http://unctad.org/meetings/en/sessionaldocuments/ciem5d2_en.pdf job creation law and foreign direct investment in tourism in indonesia: is it better than before? i gusti ngurah parikesit widiatedja and i nyom an suyatna 67 direct money to local society.32 furthermore, the tourists' interaction with local enterprises may increase the branding of the destination. 33 despite the positives, only a small amount of empirical study has been done on the harmful effect of fdi in tourism. nonetheless, several international organizations have demonstrated that fdi in tourism can have disastrous implications for the host country. the united nations conference on trade and development (unctad) stated in 2010 that developing countries face major social, economic, and environmental hurdles in pursuing tourism-related gains.34 tourism’s impact on the environment, according to the united nations environment programme (unep), includes increased pressure on already depleted water resources, rising of greenhouse gas (ghg) emissions, and negative effects on biodiversity. 35 similarly, the united nations world tourism organization (unwto) claimed in 2004 that fdi in tourism has a detrimental impact on the environment due to its low relative to local competitors.36 because foreign hotels make up the majority of hotels in some countries, the negative effects of fdi can be higher than those of domestic businesses.37 high-end hotels (4-star or 5-star hotels) are largely fdi in bali, and some of them are part of worldwide hotel chains.38 the higher the hotel’s rating, the greater the risk of environmental damage, especially because such hotels are required to complete all facilities in accordance with the mandatory standard as a high-rated hotel or as a part of an international chain hotel, which puts an enormous strain on the environment. according to barrowclough (2007), foreign hotels will have a greater environmental impact than local hotels since they are larger and utilize more resources, such as energy and water.39 32 eva parga dans and pablo alonso gonzález, p., “sustainable tourism and social value at world heritage sites: towards a conservation plan for altamira, spain ,” annals of tourism research, 74 (2019): 69. 33 ibid. see also menelaos gkartzios and philip lowe, “revisiting neo-endogenous rural development,” the routledge companion to rural planning, (2019): 159. 34 united nations conference on trade and development, “the contribution of tourism to trade and development,” http://unctad.org/en/docs/cid8_en.pdf, 3. see also aldi lasso and heide dahles, “are tourism livelihoods sustainable? tourism development and economic transformation on komodo island, indonesia,” asia pacific journal of tourism research, 23 no. 5, (2018): 473. 35 united nations environment programme, “green economy and trade: trends, challenges, and opportunities,” http://www.unep.org/greeneconomy/portals/88/getreport/pdf/fullreport.pdf, 4. see also sudharshan reddy paramati, md. samsul alam and chi keung marco lau, “the effect of tourism investment on tourism development and co2 emissions: empirical evidence from the eu nations,” journal of sustainable tourism 26, no.9, (2018): 1587. 36 united nations world tourism organisation, general guidelines for the development of foreign direct investment indicators on the tourism sector. (geneva: department of statistics and economic measurement of tourism), 2004: 166. 37 ibid. 38 i gusti ngurah parikesit widiatedja. kebijakan liberalisasi pariwisata: konstruksi konsep, ragam masalah, dan alternatif solusi (denpasar: udayana university press, 2011), 41. 39 diana barrowclough, “foreign investment in tourism and small island developing states,” tourism economics 13, no. 4 (2007): 622. http://unctad.org/en/docs/cid8_en.pdf http://www.unep.org/greeneconomy/portals/88/getreport/pdf/fullreport.pdf udayana journal of law and culture vol. 6 no. 1, january 2022 68 anti-competitive business practices in the tourism industry also lead to economic leakage. foreign tourism businesses, in particular, engaged in vertically integrated practices. many significant foreign tour operators are vertically integrated, according to the unwto, since they own or are affiliated with villas, airlines, hotels, or reservation systems.40 as a result, these operators can give extra services.41 in the tourist industry, vertical integration is popular, with hotel groups such as sol meliá and club med investing in delivery links (tour operators and travel agencies) to generate new products.42 2. result and analysis 2.1. the regulations of foreign direct investment in tourism before job creation law before the enactment of job creation law, there are certain regulations in indonesia that restrict fdi in tourism, demonstrating how fdi governance in indonesia has been governed through fragmented laws and policies. to put it another way, indonesia has failed to develop clear a nd comprehensive legislation in regulating fdi, notably in the tourism sector. here are some of the most significant laws explained. 2.1.1. investment law law no. 25 of 2007 concerning investment is the first law that controls the existence of fdi. the goal of this legislation is to boost national economic growth.43 investment law also ensures that fdi and local investors are treated equally.44 this measure is questionable because indonesia is not required to take it. the distinction between fdi and local investors is still lawful under the general agreement on trade in services (gats) and the world trade organization (wto). after joining the wto agreement, indonesia has updated its negative investment list. this list consists of both investment-restricted and investment-open categories.45 public museums, ancient heritage, residential environment, monuments, and gambling are some of the business fields in indonesia that are fully closed to fdi and local investors in tourism. a list of open business fields subject to investment constraints can be categorized 40 united nations world tourism organization, “tourism in the age of alliances, mergers and acquisitions,” http://sete.gr/files/media/ebook/110301_tourism%20in%20the%20age%20of%20allianc es,%20mergers%20and%20acquisitions.pdf, 2. 41 ibid. 42 ibid. 43 law no. 25 of 2007 concerning investment, art. 1(2). 44 ibid., art. 3 (1). 45 elucidation of presidential regulation number 44 of 2016 on lists of business fields that are closed to and business fields that are open with conditions to investment . http://sete.gr/files/media/ebook/110301_tourism%20in%20the%20age%20of%20alliances,%20mergers%20and%20acquisitions.pdf http://sete.gr/files/media/ebook/110301_tourism%20in%20the%20age%20of%20alliances,%20mergers%20and%20acquisitions.pdf job creation law and foreign direct investment in tourism in indonesia: is it better than before? i gusti ngurah parikesit widiatedja and i nyom an suyatna 69 into numerous groups. foreign service providers can operate and supply services with 51 percent, 67 percent, or 100 percent of capital ownership.46 surprisingly, indonesia's list is more liberal than the rest of the asean bloc. thailand only authorizes fdi in tourism through a commercial presence of no more than 49 percent.47 malaysia only allows fdi in hotels of up to 30 percent for four-star hotels and 35 percent for five -star hotels.48 but these two neighboring countries hosted more visitors than indonesia .49 only singapore has fully liberalized its tourism sector among asean countries. 2.1.2. tourism law despite the fact that it recognizes the non-discrimination principle and the right to tourism, the substance of law no. 10 of 2009 concerning tourism (tourism law) has yet to adopt the tourism perspective as a trade in services, which includes all of tourism's distinctiveness.50 this legislation product says nothing about the classification tourism as a service industry rather than a normal economic activity. although there was no requirement to accept the unwto global code of ethics for tourism, this legislation largely referenced it.51 indonesia’s tourism law is likely to incorporate gats as a result of the wto agreement’s acceptance. furthermore, the gats classification of tourism-related sectors was not reflected in tourism law. while the gats separates tourism and recreational services, the law includes service on recreation in the tourist category. 2.1.3. environmental law the existence of fdi is likewise regulated by law no. 32 of 2009 concerning environmental protection and management (environmental law). the technique for environmental impact assessment (eia) is one of the most concerning aspects of environmental law. according to environmental law, an eia is a study of the significant environmental impact of a certain activity that is undertaken during the planning stages and will be used as the legal foundation for evaluating whether such activity will have a negative environmental impact.52 a company that wants to start a business or grow its operation can apply for an environmental license after passing the eia.53 after receiving an 46 such as: bars, cafes, restaurants, four-star hotel, five-star hotel. 47 see detail at the secretariat of asean, “schedule of specific commitments of thailand”, http://www.aseansec.org/economic/services/2nd_ tha.pdf 48 see united nations world tourism organization, “tourism highlight 2014.” http://www.e-unwto.org/doi/pdf/10.18111/9789284416226 49 see detail at the secretariat of asean, “schedule of specific commitments of malaysia” http://www.aseansec.org/economic/services/2nd_ mal.pdf 50 law no.10 of 2009 concerning tourism, art 2. 51 ibid, art. 5. 52 law no. 32 of 2009 concerning environmental protection and management, art 1(11). 53 ibid, art. 36. http://www.aseansec.org/economic/services/2nd_%20tha.pdf http://www.e-unwto.org/doi/pdf/10.18111/9789284416226 http://www.aseansec.org/economic/services/2nd_%20mal.pdf udayana journal of law and culture vol. 6 no. 1, january 2022 70 environmental license from the government, a corporation can apply for a commercial license to legalize its operations in indonesia.54 in other words, environmental law made it illegal for a corporation to start or expand its operations without first undertaking an eia. in reality, many businesses have gotten a commercial license and have begun operations despite the fact that the eia has not yet been completed. 2.1.4. labour law fdi companies must prioritize indonesians when hiring employees, according to investment regulations. according to the law, foreign employees can only work in specific roles and with specialized knowledge. they are required by legislation to improve the competency of indonesian employees vocational training.55 the law no. 13 of 2003 concerning manpower then lays out requirements for foreign workers, including obtaining a permit from the ministry, prohibiting individual employers from employing expatriates, and allowing expatriates to work in indonesia only within working relationships for a specific position and time period. 56 even though foreigners are only allowed to work in limited time and certain positions, and their employment must be tied to the presence of fdi, the reality is not the same. tourism is one of the most appealing industries for low-skilled international employees.57 foreigners have been engaged at some bali hotels, even at modest levels of expertise.58 the availability of foreigners (using tourist visas) working as guides for tourists who come from similar home countries has been a widespread practice for the previous ten years.59 2.1.5. land ownership law only indonesian nationals are authorized to own land (hak milik) under law no 5 of 1960 concerning basic regulations on agrarian principles (basic agrarian law/bal). there are three types of rights available to foreigners: right of use (hak pakai), leasehold (hak guna usaha), and building rights (hak guna bangunan). in other words, foreigners (both individuals and businesses) are not permitted to get ownership rights. however, there has been a widespread illegal practice, notably in the tourism industry, in which foreigners purchase land under the names of indonesians in order to get ownership rights. they signed other relevant 54 ibid art. 40. 55 law no.10 of 2009 concerning tourism, art. 10. 56 law no. 13 of 2003 concerning manpower, art. 42. 57 achmad dwi afriyadi, “kspi: tka kasar masuk ri paling banyak di sektor pariwisata,” https://finance.detik.com/berita-ekonomi-bisnis/d-3999587/kspi -tka-kasarmasuk-ri-paling-banyak-di-sektor-pariwisata 58 posbali, “ancaman tenaga asing mulai melanda sektor pariwisata di bali ,” https://www.posbali.id/ancaman-tenaga-asing-mulai-melanda-sektor-pariwisata-di-bali/ 59 okenews, “tenaga kerja asing ilegal berkedok wisatawan merajalela di bali ,” https://news.okezone.com/read/2014/04/13/340/969534/tenaga kerja-asing-ilegal-berkedok-wisatawan-merajalela-di-bali https://finance.detik.com/berita-ekonomi-bisnis/d-3999587/kspi-tka-kasar-masuk-ri-paling-banyak-di-sektor-pariwisata https://finance.detik.com/berita-ekonomi-bisnis/d-3999587/kspi-tka-kasar-masuk-ri-paling-banyak-di-sektor-pariwisata https://www.posbali.id/ancaman-tenaga-asing-mulai-melanda-sektor-pariwisata-di-bali/ https://news.okezone.com/read/2014/04/13/340/969534/tenaga-kerja-asing-ilegal-berkedok-wisatawan-merajalela-di-bali https://news.okezone.com/read/2014/04/13/340/969534/tenaga-kerja-asing-ilegal-berkedok-wisatawan-merajalela-di-bali job creation law and foreign direct investment in tourism in indonesia: is it better than before? i gusti ngurah parikesit widiatedja and i nyom an suyatna 71 agreements to bind both parties (foreigner and indonesian), such as a debt recognition deed, which explains that the foreigner lends money to indonesian and the land purchased is used as collateral to ensure indonesian's obligation. despite the fact that this method does not break any indonesian laws, it has resulted in the transfer of property rights, allowing foreigners to gain control over indonesian land. 2.2. job creation law and the regulation of fdi in tourism the introduction of the omnibus bill on job creation is unusual in indonesian regulation-making practice. this is more generally used in the common law system than in the indonesian civil law system. the government, on the other hand, maintains that this is the greatest way to enhance the regulatory structure, particularly the ease with which businesses can operate in indonesia. the goal of this bill is to deregulate the overlapping, disparate, and conflicting rules that govern corporate activity. finally, on 5 october 2020, the government enacted this bill as law no. 11 of 2020 on job creation. the government is justified in claiming that indonesia's quantity of laws and regulations has reached hyper-regulation levels. there are currently 1693 laws, 182 government regulations in lieu of laws, 4605 government regulations, 2109 presidential regulations, and 15971 regional regulations, to name a few.60 indonesia's competitiveness has suffered as a result of excessive regulation, making it unattractive to investors. according to the world bank’s 2019 doing business index, indonesia ranks 73rd out of 190 nations in terms of business ease. president joko widodo then established a goal for indonesia to get to the 40th place by the conclusion of his term in 2024.61 the government claims that job creation law will be beneficial for indonesia. it includes opening up new jobs for the citizens by attracting more foreign investors, simplifying the process of opening a business, and eradicating illegal levies which are the origin of corruption. 62 the covid-19 pandemic has exacerbated the economic crisis that has hit countries hard over the last few years. indonesia as one of the countries affected by this crisis is trying to revive the country’s economic growth by trying to attract foreign investors to invest in indonesia.63 the government believed that the law will be able to help indonesia out from this difficult situation.64 60 the government of indonesia, “omnibus law: the solution and legal breakthrough,” https://www.indonesia.go.id/narasi/indonesiadalamangka/ekonomi/omnibus -law-solusidanterobosan-hukum 61 ibid. 62 muhammad ideris, loc.cit 63 ne ws desk, “jobs law needed for indonesia to advance amid pandemic, jokowi argues,” https://www.thejakartapost.com/news/2020/10/25/jobs-law-needed-forindonesia-to-advance -amid-pandemic-jokowi-argues.html 64 callistasia wijaya, “indonesia: thousands protest against omnibus law on jobs,” https://www.bbc.com/news/world-asia-54460090 https://www.indonesia.go.id/narasi/indonesiadalamangka/ekonomi/omnibus-law-solusi-danterobosan-hukum https://www.indonesia.go.id/narasi/indonesiadalamangka/ekonomi/omnibus-law-solusi-danterobosan-hukum https://www.thejakartapost.com/news/2020/10/25/jobs-law-needed-for-indonesia-to-advance-amid-pandemic-jokowi-argues.html https://www.thejakartapost.com/news/2020/10/25/jobs-law-needed-for-indonesia-to-advance-amid-pandemic-jokowi-argues.html https://www.bbc.com/news/world-asia-54460090 udayana journal of law and culture vol. 6 no. 1, january 2022 72 furthermore, some scholars argue that the law will increase the enthusiasm of foreign investors to invest in indonesia by simplifying various overlapping regulations related to investment. with the presence of investors in indonesia, it will open up a lot of job opportunities for the community, which in turn will accelerate indonesia’s economic growth and strengthen indonesia’s competitiveness internationally.65 a developed country such as the united states of america has also expressed its support for the government in its efforts to simplify the complicated regulatory and investment processes in indonesia.66 the government further asserted that the newly-enacted job creation law will not have negative impacts on the public. 67 the discourse about the law has been discussed for about four years, involving academics from various expertise. moreover, the government stated that they had also held direct talks with trade union leaders before coming to the decision.68 therefore, it is not fair if certain groups of the community claim that the creation of the law is undemocratic and does not involve the community members.69 however, the wave of public resistance, especially from the labour association along with erroneous assumptions regarding the contents of the law required the government to clarify the false information circulating in the community. one such issue is the elimination of the eia, which has been refuted and straightened out.70 moreover, the process of drafting this bill is undemocratic as it is not transparent and hastily conducted.71 furthermore, the target to complete it within 100 days is unrealistic as the content of this bill will significantly change some existing laws in indonesia, including investment and environmental laws. its impacts are as massive as its size so it entails public debate and vigilant analysis by lawmakers.72 in relation to fdi in tourism, some provisions are regulating the existence of this business sector including the following: 65 nur rohmi aida, “strengths and weaknesses of the job creation law from a political observer's point of view,” https://www.kompas.com/tren/read/2020/10/10/103000865/kelebihan -dankekurangan-uu-cipta-kerja-dari-kacamata-pengamat-politik?page=all 66 tri indah oktavianti , “pompeo praises indonesia’s reform effort to cut red tape ,” https://www.thejakartapost.com/news/2020/10/29/pompeo-praises-indonesias-reformeffort-to-cut-red-tape.html 67 ade miranti karunia, “luhut claims the omnibus law on job creation will not harm the people ,” https://money.kompas.com/read/2020/10/07/134300626/luhutklaim-omnibus-law-uu-cipta-kerja-tak-merugikan-rakyat 68 ibid. 69 ibid. 70 dewa ketut and azis kurmala, “government ensures amdal not eliminated in omnibus law,” https://en.antaranews.com/news/158577/government-ensures-amdalnot-eliminated-in-omnibus-law 71 rofiq hidayat, “maria farida’s concern on omnibus law,” https://www.hukumonline.com/berita/baca/lt5de4f9c9216d0/kekhawatiran -maria-faridaterkait-omnibuslaw/ 72 ibid. https://www.kompas.com/tren/read/2020/10/10/103000865/kelebihan-dan-kekurangan-uu-cipta-kerja-dari-kacamata-pengamat-politik?page=all https://www.kompas.com/tren/read/2020/10/10/103000865/kelebihan-dan-kekurangan-uu-cipta-kerja-dari-kacamata-pengamat-politik?page=all https://www.thejakartapost.com/news/2020/10/29/pompeo-praises-indonesias-reform-effort-to-cut-red-tape.html https://www.thejakartapost.com/news/2020/10/29/pompeo-praises-indonesias-reform-effort-to-cut-red-tape.html https://money.kompas.com/read/2020/10/07/134300626/luhut-klaim-omnibus-law-uu-cipta-kerja-tak-merugikan-rakyat https://money.kompas.com/read/2020/10/07/134300626/luhut-klaim-omnibus-law-uu-cipta-kerja-tak-merugikan-rakyat https://en.antaranews.com/news/158577/government-ensures-amdal-not-eliminated-in-omnibus-law https://en.antaranews.com/news/158577/government-ensures-amdal-not-eliminated-in-omnibus-law https://www.hukumonline.com/berita/baca/lt5de4f9c9216d0/kekhawatiran-maria-farida-terkait-omnibuslaw/ https://www.hukumonline.com/berita/baca/lt5de4f9c9216d0/kekhawatiran-maria-farida-terkait-omnibuslaw/ job creation law and foreign direct investment in tourism in indonesia: is it better than before? i gusti ngurah parikesit widiatedja and i nyom an suyatna 73 2.2.1. investment law in relation to investment, according to article 77 of job creation law, several provisions in investment law are amended, including article 12 (1) that determines the exception of business fields. presidential regulation no. 49 of 2021 concerning the business fields of investment then explains which tourism sectors are opened or closed for foreign investors. for example, four-star and five -star hotels are opened for fdi while one -star hotel, villa, guest house, travel agent and tourist’s guide are reserved for small-medium enterprises. this arrangement is pretty similar compare d to the previous negative -list investment that was amended almost every five years. article 18 (1) of the newly amended investment law then states that the central government will provide special facilities to investors who make investments within the following categories, among other things: a. absorbs a lot of manpower; b. belongs to a high priority scale; c. includes infrastructure development; d. transfers technology; e. carries out pioneer industry; f. located in remote areas and underdeveloped areas, and g. preserving the environment. presidential regulation no. 49 of 2021 then explains which tourism business fields are granted these kinds of facilities, including: five-star and four-star hotels if they are located in north sumatera, bangka belitung and east indonesian area, and golf course in north sumatera and east java. this new revision has expanded investment facilities not only for investors who establish tourism business in the eastern area, but also for those who choose a location in other areas, such as north sumatera and east java. similar to investment law, there will be no differential treatment between local and foreign investors. this policy will put foreign investors in the dominant position as they will have more financial and technological supports. applying discriminatory measures is possible under international law. host countries may even impose local restrictions that are more burdensome than necessary during the pre -establishment period, for example.73 in addition, fdi may be subject to various levies and may be denied access to specific support schemes.74 73 apc subhashini abeysinghe. “services trade in south asia: the india–sri lanka cepa” in the preferential liberalization of trade in services: comparative regionalism, compiled by pierre sauvé and anirudh shingal (cheltenham: edward elgar, 2014), 312. 74 ibid. udayana journal of law and culture vol. 6 no. 1, january 2022 74 in the post-establishment phase, host governments can impose a range of performance standards on fdi, such as the requirement to undergo managerial training.75 for example, under the gats, host countries have a lot of leeway in deciding how open their liberalisation process should be, considering their economic progress and domestic policy objectives.76 as a result, they have the authority to decide whether certain sectors are accessible to fdi or not, to limit foreign ownership in specific sectors, and to impose extra fdi conditions unilaterally (such as the requirement to form a joint venture business with local smes). job creation law also reflects the centralistic approach of central government. the determination of open and closed tourism businesses along with the grant of investment facilities are decided by the central government. 2.2.2. tourism law in relation to tourism, article 67 of job creation law states that, in order to provide better and conducive arrangements for investors in obtaining business permits, several provisions in tourism law are amended. for instance, article 15 (1) of the same law states that tourism entrepreneurs are required to fulfill business permits from the central government or regional governments in accordance with their respective authorities based on the norms, standards, procedures and criteria determined by the central government. article 54 of the newly amended tourism law then states that products, services, and management of tourism businesses have business standards. government regulation no. 5 of 2021 determines these standards in more detail. article 142 (1) explains that standards for implementing tourism business activities are standards that include facilities, organization and human resources, services, product requirements, management systems, conformity assessments, and supervision. the standard of tourism business includes the following elements: a. prioritizing the use of local community products and domestic products as well as providing opportunities for local workers; and b. partnership development with mses and local cooperatives. article 143 (1) of the newly amended tourism law then explains that the tourism business standard for tourism sector business activities with a medium high-risk level and a high-risk level shall be verified by the tourism business certification agency. this agency is an institution accredi ted by a government agency that has the authority to carry out accreditation. although it seems promising, the domination of the central government is obvious as it will determine the norms, procedures, and standards in tourism management. moreover, the implementing regulations to arrange the certification process are yet to be issued. 75 ibid. 76 ibid. job creation law and foreign direct investment in tourism in indonesia: is it better than before? i gusti ngurah parikesit widiatedja and i nyom an suyatna 75 local community involvement is the next emphasis under job creation law. article 26 (1) of the newly amended tourism law states that every tourism entrepreneur is obliged to, among other things: maintain and respect religious norms, customs, culture, and values that live in the local community; develop partnerships with local micro, small and cooperative enterprises; prioritizing the use of local community products, domestic products, and providing opportunities for local workers; and improve the competence of the workforce through training and education. however, there is no further explanation on how this emphasis is done and what consequences will be imposed if investors do not involve the surrounding community in their business activities. 2.2.3. environmental law interestingly, one of the most controversial provisions of the job creation law is the relaxing of requirements for developers and businesses to conduct the eia. under environmental law, the eia is a compulsory requirement to get an environmental permit from either the central or local governments, depending on the scope of the project.77 the environmental permit is then required to obtain a business permit. once the business permit is granted, the project can be started.78 the law will degrade the position of the environmental permit. it will be transformed into an environmental approval. along with other approvals, such as the building and spatial plan approvals, environmental approval will become a prerequisite for the approval of a business permit. the law also introduces a risk-based approach in specifying the kind of business permit that businesses and developers need to secure.79 the government will determine the risk level of business activities based on the hazard level and the potential hazard level80 by looking at four factors: the environment, safety, health, and/or natural resources utilization and management.81 all business activities are divided into three levels, namely low, medium and high risks.82 the minister of environment and forestry states that under the new approach, the eia is still required and it is allocated as a standard instead of a requirement for obtaining a permit.83 putting it as a standard will enable the government to consistently monitor the environmental impact of 77 law no. 32 of 2009 concerning environmental protection and management, art. 36. 78. ibid, art. 40. 79 law no. 11 of 2020 concerning job creation, art. 7(1). 80 ibid, art. 7(2). 81 ibid, art.7(3). 82 ibid, art.7(7), art 8, art 9, art 10. 83 giri hartomo, “ministry siti: the eia would not be revoked although there is omnibus law on job creation,” https://economy.okezone.com/read/2020/02/12/470/2167468/menteri -siti-amdal-tidakdihapus-meski-ada-omnibus-law-ciptaker https://economy.okezone.com/read/2020/02/12/470/2167468/menteri-siti-amdal-tidak-dihapus-meski-ada-omnibus-law-ciptaker https://economy.okezone.com/read/2020/02/12/470/2167468/menteri-siti-amdal-tidak-dihapus-meski-ada-omnibus-law-ciptaker udayana journal of law and culture vol. 6 no. 1, january 2022 76 particular activities.84 moreover, the government has more power to prosecute companies that adversely affect the environment.85 it seems clear that the government assumes the problem of the eia regulations caused by its burdensome procedure, making it is impractical to be implemented. hence, it is more viable to replace the eia with a kind of environmental standard, particularly for low and medium-risk projects. however, there should be a clearer benchmark of what constitutes a project with a ‘significant impact’ and how it falls within the category of medium or high-risk activities. if this does not happen, a particular tourism project could not be classified as a high-risk activity although it might have a ‘significant impact’. as a result, it would not be required to complete the eia and involve the affected community. 2.2.4. land management according to article 123 of job creation law, several provisions in law no. 2 of 2012 concerning land procurement for development in the public interest (land procurement law) are amended. article 144 (1) of this law states that ownership rights to an apartment unit may be granted to foreign nationals who have permits in accordance with the provisions of laws and regulations. these rights may be transferred or pledged as collateral. this arrangement is controversial because prior laws and regulations only gave foreigners use or leasing rights. article 33 paragraph (3) of the 1945 constitution of the republic of indonesia and basic agrarian law, are both in opposition to this shift in ownership status. foreigners’ rights to shared land are indirectly enabled by providing foreigners ownership rights to flat units. shared land is land that exists in indonesia and that, according to the bal idea of property rights, can only be owned by indonesians. based on this view, the government should evaluate the articles pertaining to flats in the job creation law and other derivative legislation, making the appropriate changes to the status and nature of foreigners ’ property rights over flat units. the change tries to avoid ambiguous interpretations and legal ramifications (fraus legis). as a result, flat management would be consistent with national ideals, the concept of property rights, and national interests, allowing the indonesian people to grow and prosper. 2.2.5. labour law in relation to the use of foreign labour, article 2(1) of government regulation no. 34 of 2021 concerning the use of foreign workers then obliges every employer of foreign workers to prioritize the use of indonesian workers in all types of available positions, with an exception that of there is no domestic workers has a capacity to occupy it. afterwards, the use of 84ibid. 85ibid. job creation law and foreign direct investment in tourism in indonesia: is it better than before? i gusti ngurah parikesit widiatedja and i nyom an suyatna 77 foreign workers is conducted by considering the labour market situation. besides, article 3 (1) states that e mployers of foreign workers include, among other things: foreign private companies operating in indonesia. this regulation does not change much from the existing labour regulations. foreign workers are allowed with certain requirements, such as only for positions that cannot be occupied by local workers, related to the use of new technology, and minimal manager-level positions. what deserves attention, especially in the tourism sector, many foreigners in facts work in positions that should be occupied by local workers. in the current situation, the constitutional court finally proclaimed the law as conditionally unconstitutional. the court decision provides the house of representatives and the central government two years to revise the law following law-making mechanism and wider public participation.86 a constitutional law expert, zainal arifin mochtar, has criticized this decision as it does not directly declare job creation law as invalid. the constitutional court should state that everything that has broad and strategic implications under job creation law is suspended and this law is no longer in effect.87 the unclear decision has opened an opportunity for the government to still apply the job creation law and its derivative s regulations. as a result, the government could hide behind the obscurity to make things even more unclear.88 from the perspective of investment, this decision could create legal uncertainty as the government can no longer able to enact technical regulations, particularly regarding the opening and the sustainability of fdi. what governments should do is to follow any necessary formal procedure within two years. they should promptly announce to reassure that the point of the decision is merely related to the law-making mechanism and not about the content of the law. 3. conclusion the job creation law brought an expectation that the investment legal framework will be arranged comprehensively. moreover, the purpose of this law is to improve the investment climate in indonesia. one of the sectors that attract foreign investors is tourism, especially since this sector has its own uniqueness which is indonesia’s comparative advantage. laws and regulations are the keys to ensuring that the purpose of foreign investment is to increase economic growth and development in indonesia. unfortunately, regulations related to fdi, especially in the tourism sector, are carried out separately and are contained in various laws, such as environmental law, investment law, labour law, and land management law. 86 the constitutional court decision, loc.cit. 87 nurhadi sucahyo, “ketidakjelasan bayangi putusan mk soal uu cipta kerja ,” https://www.voaindonesia.com/a/ketidakjelasan-bayangi-putusan-mk-soal-uu-ciptakerja-/6338052.html 88 ibid. https://www.voaindonesia.com/a/ketidakjelasan-bayangi-putusan-mk-soal-uu-cipta-kerja-/6338052.html https://www.voaindonesia.com/a/ketidakjelasan-bayangi-putusan-mk-soal-uu-cipta-kerja-/6338052.html udayana journal of law and culture vol. 6 no. 1, january 2022 78 this pattern in its implementation has led to bureaucratic impediment s and 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https://economy.okezone.com/read/2020/02/12/470/2167468/men teri-siti-amdal-tidak-dihapus-meski-ada-omnibus-law-ciptaker ideris, muhammad. “3 benefits of job creation law for the people, which claimed by jokowi.” https://money.kompas.com/read/2020/10/11/090645726/3manfaat-uu-cipta-kerja-untuk-rakyat-seperti-yang-diklaimjokowi?page=all karunia, ade miranti. “luhut claims the omnibus law on job creation will not harm the people.” https://money.kompas.com/read/2020/10/07/134300626/luhutklaim-omnibus-law-uu-cipta-kerja-tak-merugikan-rakyat ketut, dewa and kurmala, azis. “government ensures amdal not eliminated in omnibus law.” https://en.antaranews.com/news/158577/government-ensuresamdal-not-eliminated-in-omnibus-law news desk. “jobs law needed for indonesia to advance amid pandemic, jokowi argues.” https://www.thejakartapost.com/news/2020/10/25/jobs-lawneeded-for-indonesia-to-advance-amid-pandemic-jokowi-argues.html okenews. “tenaga kerja asing ilegal berkedok wisatawan merajalela di bali.” https://finance.detik.com/berita-ekonomi-bisnis/d-3999587/kspi-tka-kasar-masuk-ri-paling-banyak-di-sektor-pariwisata https://finance.detik.com/berita-ekonomi-bisnis/d-3999587/kspi-tka-kasar-masuk-ri-paling-banyak-di-sektor-pariwisata https://finance.detik.com/berita-ekonomi-bisnis/d-3999587/kspi-tka-kasar-masuk-ri-paling-banyak-di-sektor-pariwisata https://www.kompas.com/tren/read/2020/10/10/103000865/kelebihan-dan-kekurangan-uu-cipta-kerja-dari-kacamata-pengamat-politik?page=all https://www.kompas.com/tren/read/2020/10/10/103000865/kelebihan-dan-kekurangan-uu-cipta-kerja-dari-kacamata-pengamat-politik?page=all https://www.kompas.com/tren/read/2020/10/10/103000865/kelebihan-dan-kekurangan-uu-cipta-kerja-dari-kacamata-pengamat-politik?page=all https://economy.okezone.com/read/2020/02/12/470/2167468/menteri-siti-amdal-tidak-dihapus-meski-ada-omnibus-law-ciptaker https://economy.okezone.com/read/2020/02/12/470/2167468/menteri-siti-amdal-tidak-dihapus-meski-ada-omnibus-law-ciptaker 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https://www.thejakartapost.com/news/2020/10/25/jobs-law-needed-for-indonesia-to-advance-amid-pandemic-jokowi-argues.html udayana journal of law and culture vol. 6 no. 1, january 2022 82 https://news.okezone.com/read/2014/04/13/340/969534/tenagakerja-asing-ilegal-berkedok-wisatawan-merajalela-di-bali oktavianti, tri indah. “pompeo praises indonesia’s reform effort to cut red tape.” https://www.thejakartapost.com/news/2020/10/29/pompeopraises-indonesias-reform-effort-to-cut-red-tape.html posbali. “ancaman tenaga asing mulai melanda sektor pariwisata di bali.” https://www.posbali.id/ancaman-tenaga-asing-mulai-melandasektor-pariwisata-di-bali/ sucahyo, nurhadi. “ketidakjelasan bayangi putusan mk soal uu cipta kerja.” https://www.voaindonesia.com/a/ketidakjelasan-bayangiputusan-mk-soal-uu-cipta-kerja-/6338052.html the government of indonesia. “omnibus law: the solution and legal breakthrough.” https://www.indonesia.go.id/narasi/indonesiadalamangka/ekonomi/ omnibus-law-solusi-danterobosan-hukum wijaya, callistasia. “indonesia: thousands protest against omnibus law on jobs.” https://www.bbc.com/news/world-asia-54460090 https://news.okezone.com/read/2014/04/13/340/969534/tenaga-kerja-asing-ilegal-berkedok-wisatawan-merajalela-di-bali https://news.okezone.com/read/2014/04/13/340/969534/tenaga-kerja-asing-ilegal-berkedok-wisatawan-merajalela-di-bali https://www.thejakartapost.com/news/2020/10/29/pompeo-praises-indonesias-reform-effort-to-cut-red-tape.html https://www.thejakartapost.com/news/2020/10/29/pompeo-praises-indonesias-reform-effort-to-cut-red-tape.html https://www.posbali.id/ancaman-tenaga-asing-mulai-melanda-sektor-pariwisata-di-bali/ https://www.posbali.id/ancaman-tenaga-asing-mulai-melanda-sektor-pariwisata-di-bali/ https://www.voaindonesia.com/a/ketidakjelasan-bayangi-putusan-mk-soal-uu-cipta-kerja-/6338052.html https://www.voaindonesia.com/a/ketidakjelasan-bayangi-putusan-mk-soal-uu-cipta-kerja-/6338052.html https://www.indonesia.go.id/narasi/indonesiadalamangka/ekonomi/omnibus-law-solusi-danterobosan-hukum https://www.indonesia.go.id/narasi/indonesiadalamangka/ekonomi/omnibus-law-solusi-danterobosan-hukum https://www.bbc.com/news/world-asia-54460090 e-issn 2549-0680 vol. 6, no. 2, july 2022, pp. 220-238 doi: https://doi.org/10.24843/ujlc.2022.v06.i02.p06 this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licenses/by/4.0/) 220 measures on chinese products in indonesia during the covid-19 pandemic: why was anti-dumping action imposed? andi putri amanda* faculty of law, universitas syiah kuala, banda aceh and erlanda juliansyah putra, advocates and legal consultants, aceh besar, indonesia wardah** faculty of law; research center for social and cultural studies (prisb), universitas syiah kuala, banda aceh, indonesia abstract during the covid-19 pandemic, the government of indonesia (goi) issued policies to keep the situation under control, particularly in the trade sector, with the goal of protecting the state from fraudulent acts of business actors dumping practices. the indonesian anti-dumping committee (kadi) has investigated chinese products that cause harm to domestic products, namely lysine and hot rolled coil of another alloy. this article discusses the implementation of anti-dumping action conducted by the kadi, and the challenges that are faced in the performance of anti-dumping action. it is based on normative legal research that applies statutory and conceptual approaches. the results show that kadi’s scientific investigation succeed in proving the causal link between certain imported chinese products and the injury in indonesian local industries. there are three challenges faced by kadi in investigating the anti-dumping action. first, the work from home system hampered them from collecting the data. second, a lack number of capable staff to investigate the evidence of dumping in indonesia. third, the regulation of minister of finance no. 103/pmk.010/2020 suspend the import duties on all imported products that enter the indonesian market from september, 22 until december 31, 2020. keywords: anti-dumping; chinese products; covid-19 pandemic; indonesia, trade. 1. introduction 1.1. background the world trade organization (wto) is an inter-governmental organization that only confers legal standing to its members in the organization. 1 anti-dumping is an action to implement specified duty on import goods in case the import products create or intimidate injury or materially retard the development in markets of domestic industries.2 it is governed by article vi of the general agreement on tariffs and trade (gatt) 1994, which is further explained in the agreement on implementation of * email/corresponding author: andiputriamanda2@gmail.com **email: wardah_fh@unsyiah.ac.id 1 see bernard m. hoekman and petros c mavroidis. law, economic, politics, second edition (london: routledge, 2016), 3. 2 wto, “technical information on antidumping,” https://www.wto.org/english/tratop_e/adp_e/adp_info_e.htm https://doi.org/10.24843/ujlc.2022.v06.i02.p060 http://creativecommons.org/licenses/by/4.0/ mailto:andiputriamanda2@gmail.com mailto:wardah_fh@unsyiah.ac.id https://www.wto.org/english/tratop_e/adp_e/adp_info_e.htm measures on chinese products in indonesia during the covid-19 pandemic: why was anti-dumping action imposed? andi putri amanda, wardah 221 that article, generally referred to as the anti-dumping agreement. 3 the agreement provides for anti-dumping action only if domestic industries suffer material injury because the price of the importing products that enter the country is lower than the price of the same product that is sold in its origin country,4 and it will harm the domestic industries that produce like products.5 in this discussion, the continued spread of covid-19 in indonesia forces the government of indonesia (goi) to issue a slew of infectious disease policies. 6 in responding to and controlling this situation, the goi issued policies in the trade sector in terms of import products to protect the state from fraudulent acts of business actors dumping practices. the agency that has a role in maintaining the stability of trading imported products from price dumping is the indonesian anti-dumping committee or komite anti dumping indonesia (kadi). the committee conducts its role with the aid of early data, such as dumping of imported goods number, losses, and complaints from the business actors in indonesia. many countries have imported products to indonesia, one of which is china as the producer and exporter of various dumped products to the indonesian market. before kadi can impose anti-dumping action on the chinese imported goods, it should notify the indonesia minister of trade that kadi7 would investigate those products. the products are lysine and hot rolled coil of another alloy steel (hrc alloy steel). moreover, kadi should gather sufficient evidence to investigate the anti-dumping on chinese 3 idha mutiara sari, “dispute settlement of anti dumping legal aspect in indonesia based on gatt/the wto provisions (allegations case study of dumping wood free copy paper between south korea and indonesia),” lampung journal of international law 2, no.2 (2020): 88. 4 sherzod shadikhodjaev, “non-market economies, significant market distortions, and the 2017 eu anti-dumping amendment,” journal of international economic law 21, no. 4, (2018): 885. 5 “like products” are a subset of products that are directly competitive or substitutable. see wto, “directly competitive or substitutable products,” https://www.wto.org/english/tratop_e/dispu_e/repertory_e/d1_e.htm. see also first sentence of article iii. 2 of the gatt 1994: “products from one contracting party's territory imported into the territory of another contracting party shall not be subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess of those applied, directly or indirectly, to like domestic products.” further, the following four factors are considered when determining “like products”: (1) the properties, nature, and quality of the product, (2) the end uses of the product, (3) consumer tastes and habits, and (4) tariff classification, see wto, article iii national treatment on internal taxation and regulation https://www.wto.org/english/res_e/booksp_e/gatt_ai_e/art3_e.pdf. 6 see discussion regarding the indonesian policy on covid-19 in i made arya utama, “do indonesian laws and policies on covid-19 countermeasures action reflect legality?,” udayana journal of law and culture 4, no. 2 (2020): 212. 7 kadi is assigned to handle problems related to efforts to overcome import of dumping goods and goods containing subsidies. see regulation of the minister of trade no. 33/m dag/per/6/2014 concerning organization and work procedure of the indonesian anti-dumping committee, art. 2. https://www.wto.org/english/tratop_e/dispu_e/repertory_e/d1_e.htm https://www.wto.org/english/res_e/booksp_e/gatt_ai_e/art3_e.pdf udayana journal of law and culture vol. 6 no. 2, july 2022 222 products as the first step to protecting national industries during the covid19 pandemic.8 the implementation of anti-dumping in indonesia has faced barriers during the covid-19 pandemic, especially since the goi carried out the work from home (wfh) policy. such policy has restrained the kadi from exercising their responsibilities on the field, and the staffs are still having difficulties providing additional data related to losses suffered. indonesia is one of the countries that issued many policies in trading relations, one of them is temporary removing tariffs to ensure domestic demand stocks remain stable during the covid-19 pandemic,9 which results in an increased demand for the chosen products, while there is a risk that restrictive trade action will become permanent.10 besides that, the anti-dumping action is one of the policies issued by the goi. 11 the situation of the covid-19 pandemic made the government could apply it for national industries protection,12 as the wto allows its member states to enforce trade remedies or trade defense action, such as dumping.13 1.2. research problem one of the actions in trade remedies is the anti-dumping, which is carried out by the kadi. it is to defend and protect the indonesian domestic industries from dumping practices. this research seeks to answer two problems. first, how is the implementation of anti-dumping action by the indonesian government on chinese products during the covid-19 pandemic? second, what are the challenges in implementing the antidumping action on chinese products during the covid-19 pandemic in indonesia? 1.3. method this article adopts a normative approach by identifying and examining relevant laws and regulations concerning anti-dumping action in indonesia, as well as the outcome of the research, assessment, and other references related to this issue. it employs the statute approach by analyzing relevant legal arrangements in anti-dumping. all data collected is then processed by 8 ekonomi, “indonesia perlu siapkan bukti kuat atas aksi dumping china,” https://ekonomi.bisnis.com/read/20200218/12/1203153/indonesia-perlu-siapkan-buktikuat-atas-aksi-dumping-china 9 wto, “trade costs in the time of global pandemic, information note,” https://www.wto.org/english/tratop_e/covid19_e/trade_costs_report_e.pdf. 10 asean policy brief, “trade measures in the time of covid-19: the case of asean,” july, 3th 2020, 1. 11 indonesia ministry of industry, “jaga ketahanan industri, kemenperin siap evaluasi kebijakan saat pandemi,” https://www.kemenperin.go.id/artikel/22023/jagaketahanan-industri,-kemenperin-siap-evaluasi-kebijakan-saat-pandemi. 12 kiichiro fukasaku, “what the covid-19 crisis means for th wto trade system,” cover story 6 of japan spotlight, july/august 2020, 30. 13 wto, “briefing note: anti-dumping, countervailing and safeguards,” https://www.wto.org/english/thewto_e/minist_e/mc9_e/brief_adp_e.htm https://ekonomi.bisnis.com/read/20200218/12/1203153/indonesia-perlu-siapkan-bukti-kuat-atas-aksi-dumping-china https://ekonomi.bisnis.com/read/20200218/12/1203153/indonesia-perlu-siapkan-bukti-kuat-atas-aksi-dumping-china https://www.wto.org/english/tratop_e/covid19_e/trade_costs_report_e.pdf https://www.kemenperin.go.id/artikel/22023/jaga-ketahanan-industri,-kemenperin-siap-evaluasi-kebijakan-saat-pandemi https://www.kemenperin.go.id/artikel/22023/jaga-ketahanan-industri,-kemenperin-siap-evaluasi-kebijakan-saat-pandemi https://www.wto.org/english/thewto_e/minist_e/mc9_e/brief_adp_e.htm measures on chinese products in indonesia during the covid-19 pandemic: why was anti-dumping action imposed? andi putri amanda, wardah 223 using qualitative methods and the finding is descriptively explained. this paper begins by outlining the presence of dumping action including its definition and aims. this paper then explains some laws and regulations that govern anti-dumping and analyzes whether its action can be conducted in the covid-19 pandemic. 1.4. theoretical framework anti-dumping is an action against dumping where a material injury occurs to the competing domestic industries. this action is conducted through the government agency in the country after the government investigated the import products.14 generally, dumping refers to a situation of international price discrimination, where a product is sold in a lower price in the importing country rather than in the exporting country.15 dumping can take the form of selling at a loss. many countries' laws define sales below cost as sales of a product at prices less than the cost of production.16 according to article 2.1 of the anti-dumping agreement, a product is considered dumped if it is introduced into the commerce of another country at a price less than its normal value. the component of dumping 17 is a product to be considered as being dumped, i.e., inserted into another country's commerce at a lower price than its standard value, if the price of the exported product is below the comparable price in usual trade, for the like product when destined for consumption in the exporting country.18 to prove the existence of dumping, there must be a material injury in the domestic country. based on article 3 of the anti-dumping agreement, material injury is damage or threat of material itself or its problem retardation of the establishment goods market domestic. 19 furthermore, article 3.7 of the anti-dumping agreement explains that the purpose of willpower material injury is primarily based totally on statistics and now no longer simply on the allegation, conjecture, or remote possibility. according to article vi of the gatt 1994 and the anti-dumping agreement, a state may enforce anti-dumping action if the conditions outlined below are met: a) dumping is happening; 14 article 1(1) of the government regulation no. 34 of 2011 concerning anti-dumping, countervailling and safeguard measures. 15 wto, technical information on anti-dumping, loc.cit. 16 mitsuo matsushita, thomas j. schoenbaum, petros c. mavroidis, michael hahn. the world trade organization law, practice, and policy (new york: oxford university press, 2015), 376. 17 peter van den bossche. the law and policy world trade organization, text, cases, and materials (cambridge: cambridge university press, 2010), 513. 18 sice, “dictionary of trade terms,” http://www.sice.oas.org/dictionary/sacd_e.asp 19 see wto, “agreement on implementation of article vi of the general agreement on tariffs and trade 1994,” https://www.wto.org/english/tratop_e/adp_e/antidum2_e.htm. http://www.sice.oas.org/dictionary/sacd_e.asp https://www.wto.org/english/tratop_e/adp_e/antidum2_e.htm udayana journal of law and culture vol. 6 no. 2, july 2022 224 b) domestic industries are struggling with material injury of the like products’20 production from the importing country; and c) there is a causal link between import products and material injury in the domestic industries that produce like products.21 to determine whether a product is dumped, the anti-dumping authority must determine two things between the normal value and export prices.22 to compare the standard value and the export price is not a simple task. to be compared fairly, the standard value and the export price must be reached at the same “level of trade” or at levels as close as possible.23 although anti-dumping is one of unfair trade, the wto permits it as an instrument for the protection of domestic industries on particular goods from abroad. 24 this policy could be applied after investigating and determining by the government in the country. under the anti-dumping agreement, the anti-dumping has been occurring if the domestic industries experiences cause material injury because the price of goods from importing product is less whether that goods price sold in exporting country.25 if any other factors emerge in determining dumping product, the antidumping authorities must also consider any recognized factors that cause injury to domestic industries while considering the causal link between import products and material injury in the case. 2. result and analysis 2.1. the indonesian policies in implementing the anti-dumping action during the covid-19 pandemic 2.1.1 regulation since the covid-19 pandemic, the international trade system has dropped down from 13% to 32% in 2020 according to a wto document.26 to control this condition, the wto issued reports to respond to the covid-19 pandemic in world trade. the world bank as an international institution has a connection with the wto and strives to solve the effect of this pandemic on the world’s financial system.27 20 ibid. 21 ibid. 22 bruce a. blonigen and thomas j. prusa, “dumping and anti-dumping duties,” national bureau of economic research, working paper 21573 23 ibid., 383. 24 sherzod shadikhodjaev, loc.cit. 25 ibid. 26 world bank group, “trade and the covid-19 pandemic guidance note managing risk and facilitating trade in the covid-19 pandemic,” report on april, 2020, https://documents1.worldbank.org/curated/en/751981585606039541/pdf/trade-andcovid-19-guidance-note-managing-risk-and-facilitating-trade-in-the-covid-19pandemic.pdf. 27 ibid. https://documents1.worldbank.org/curated/en/751981585606039541/pdf/trade-and-covid-19-guidance-note-managing-risk-and-facilitating-trade-in-the-covid-19-pandemic.pdf https://documents1.worldbank.org/curated/en/751981585606039541/pdf/trade-and-covid-19-guidance-note-managing-risk-and-facilitating-trade-in-the-covid-19-pandemic.pdf https://documents1.worldbank.org/curated/en/751981585606039541/pdf/trade-and-covid-19-guidance-note-managing-risk-and-facilitating-trade-in-the-covid-19-pandemic.pdf measures on chinese products in indonesia during the covid-19 pandemic: why was anti-dumping action imposed? andi putri amanda, wardah 225 the world bank has launched a guidance notice of trade policies in reaction to the covid-19 pandemic.28 the information encourages every state to reduce the regulations for the exchange of necessary clinical items and foods and put off the requirements for applications, licenses, and lots others. this is the form of enforcement of punitive import duties, cancelation of generalized system of preferences advantages, and renegotiation of unfastened alternate agreements in some countries. 29 it further pushes them into useful resource exporters to maintain jobs and alternate overseas earnings and contribute to macroeconomic insurance efforts to protect the economic machine from the downturn induced by the covid-19 pandemic.30 alongside its worrying consequence on human safety, the covid-19 pandemic has a possible slowdown impact on the international economy, including indonesia. the fast spread of the covid-19 pandemic and the action taken by the goi has some significant consequences for the world’s major economies.31 the goi has been continuing to make some strategic trade moves against the covid-19 pandemic in the country. 32 the indonesian ministry of trade also takes various strategic steps with guidelines based on the presidential decree of indonesia regarding covid19.33 in general, law no.7 of 2014 concerning trade (indonesian trade law) regulates the issue of dumping. it mentions that the government, through the minister of trade, sets policy and security protection of commerce that among others shall include defense of the alleged dumping and/or subsidizing the export of national goods and imposition of anti-dumping measures or actions to address the benefits of unfair trade practices. 34 further, the indonesian trade law determines that in case of import products at prices lower than the normal value which causes harm or threat of harm to the domestic industry related or inhibits the development of related industries in the country, the goi must take anti-dumping measures to eliminate or reduce such loss or threat of loss or barriers.35 this antidumping measure may include the imposition of anti-dumping duties that shall be determined by the minister of finance, based on the proposal of the minister of trade.36 the next legal basis for implementing the anti-dumping action in indonesia is government regulation no. 34 of 2011 concerning anti 28 ibid. 29 agneshwar sen (associate partner, tax and economic policy group, ey india), “trade policy scenario in post the covid-19 pandemic era” june, 2020, 10. 30 ibid. 31 un eclac, “the effects of the coronavirus disease (the covid-19 pandemic) pandemic on international trade and logistics,” 2. 32 pressrelease.id, “mendag jalankan langkah strategis bidang perdagangan di masa pandemi covid-19,” https://pressrelease.kontan.co.id/release/mendag-jalankanlangkah-strategis-bidang-perdagangan-di-masa-pandemi-covid-19 33 dewa gede pradnya yustiawan, “perlindungan industri dalam negeri dari praktik dumping,” jurnal analisis hukum 1, no. 1 (2018): 178. 34 law no.7 of 2014 concerning trade, art. 67. 35 ibid., art. 70 (1). 36 ibid., art. 70 (2) and (3). https://pressrelease.kontan.co.id/release/mendag-jalankan-langkah-strategis-bidang-perdagangan-di-masa-pandemi-covid-19 https://pressrelease.kontan.co.id/release/mendag-jalankan-langkah-strategis-bidang-perdagangan-di-masa-pandemi-covid-19 udayana journal of law and culture vol. 6 no. 2, july 2022 226 dumping, countervailing, and safeguard action (government regulation no. 34 of 2011). the indonesia minister of trade as representative of kadi during the covid-19 pandemic has not issued a specific regulation on antidumping action. therefore, kadi keeps using the existing rule to implement anti-dumping action. based on article 94 of the government regulation no. 34 of 2011, kadi performs the functions of the investigation into the truth of allegations of dumping, the existence of the losses suffered by the applicant, and the causal link between dumping and losses experienced by domestic industries.37 the procedure for the investigation of anti-dumping during the covid-19 pandemic in indonesia has no significant change because the kadi continues to carry out the usual investigative procedures following the government regulation no. 34 of 2011 and the anti-dumping agreement.38 however, regulation of the anti-dumping in factuality needs a national potential law to protect domestic industries from dumping, which is becoming a significant consequence in international trade competition. 39 therefore, defeating dumping practices requires the application of both international and national anti-dumping provisions.40 2.1.2. trade remedies the covid-19 pandemic has performed trade challenges globally. the international trading system was already subject to new restrictions and distortions, from tariff increases among major traders to significant government support in key sectors.41 one of the countries affected by the pandemic, the goi, was using trade remedies to control the trade sector in the domestic industries. trade remedies are one of the policies applied by the goi to protect domestic industries in indonesia. this policy is a term used by the government to apply a measure in specific cases or situations in international trade,42 as the wto allows members to enforce trade remedies 37 kadi staff, “the implementation of anti-dumping measures in indonesia toward the chinese products,” interview by andi putri amanda, interview by email, may 28, 2021. 38 ivan rinanda panggar besi (directorate general of security of trade of indonesian ministry of trade), “measurer on chinese products in indonesia during the covid-19 pandemic: why was anti-dumping action imposed?,” interview by andi putri amanda, online interview by zoom, april 20, 2021. 39 dewi anggaraini, “prevention of dumping practice in asean chinese free trade area regarding government regulation number 34 year 2011,” jurnal cita hukum 5, no. 1 (2017): 142. 40 ibid. 41 oecd, “covid-19 and international trade: issues and actions,” https://www.oecd.org/coronavirus/policy-responses/covid-19-and-international-tradeissues-and-actions-494da2fa/ 42 trade knowledge exchange, “trade remedies: why do we need them and how do they work?,” https://www.trade-knowledge.net/knowledge/trade-remedies-why-do-weneed-them-and-how-do-they-work/ https://www.oecd.org/coronavirus/policy-responses/covid-19-and-international-trade-issues-and-actions-494da2fa/ https://www.oecd.org/coronavirus/policy-responses/covid-19-and-international-trade-issues-and-actions-494da2fa/ https://www.trade-knowledge.net/knowledge/trade-remedies-why-do-we-need-them-and-how-do-they-work/ https://www.trade-knowledge.net/knowledge/trade-remedies-why-do-we-need-them-and-how-do-they-work/ measures on chinese products in indonesia during the covid-19 pandemic: why was anti-dumping action imposed? andi putri amanda, wardah 227 or trade defense action for imports in order to protect their domestic industries from dumping.43 indonesia uses trade remedies as a legal measure 44 to protect the domestic industries from losses.45 the threat of losing is an effect of unfair trade practices or a surge in imports and unexpected developments.46 in the implementation, the goi can impose the form of anti-dumping import duty (bea masuk anti-dumping/bmad), or import duty borne by the government (bea masuk ditanggung pemerintah/bmdp), or import duty (bea masuk impor/bmi).47 anti-dumping action is expected to succeed in providing limiting exports of chinese products. that will be improved and competitive goods in the domestic industries on the performance.48 it is different from other lines of trade protection from the wto rules due to the fact that anti-dumping action is legal in the wto and free from the non-discrimination clause, as an action to remedies if there has deemed to be unfair trade practice.49 however, during covid-19, the goi arranged the imposing of anti-dumping that simply targeted specific imports. the investigation of products has precisely examined the effects of these trade policies on the targeted sectors.50 2.2. the challenges in implementing the anti-dumping action during covid-19 pandemic in indonesia the covid-19 pandemic has caused fears since the virus spreads quickly all over the globe, putting down the health world system under pressure.51 the pandemic became a barrier to supplying medicines to the public, and it affects the health, social and economic living of people in the world,52 and the government’s major concern in preventing the pandemic's spread is the transportation sector's limitations.53 indonesia is one of the 43 wto, briefing note: anti-dumping, countervailing and safeguards, loc.cit. 44 blonigen and prusa, op.cit.,1. 45 voi, “during the paglebuk of covid-19 pandemic, indonesia was accused of 'cheating' in its export activities for 16 times,” https://voi.id/en/teknologi/6946/duringthe-covid-19-pandemic-indonesia-was-accused-of-cheating-in-its-export-activities-for-16times. 46 ibid. 47 ibid. 48 liza jabbour, et.al., “the good, the bad and the ugly: chinese imports, european union anti-dumping measures and firm performance,” journal of international economics 117, (2019): 13. 49 blonigen and prusa, op.cit.,1. 50 ibid. 51 unctad, “the trade impact of coronavirus (the covid-19 pandemic) epidemic,” report on march, 4th 2020. 52 lukasz gruszczynsk, “the covid-19 pandemic pandemic and international trade: temporary turbulence or paradigm shift?,” european journal of risk regulation 11, no. 2 (2020): 339. 53 kukuh fadli prasetyo, “identifying social contexts upon the annual homecoming prohibition due to the covid-19 outbreak,” udayana journal of law and culture 5, no. 1 (2021): 22. https://voi.id/en/teknologi/6946/during-the-covid-19-pandemic-indonesia-was-accused-of-cheating-in-its-export-activities-for-16-times https://voi.id/en/teknologi/6946/during-the-covid-19-pandemic-indonesia-was-accused-of-cheating-in-its-export-activities-for-16-times https://voi.id/en/teknologi/6946/during-the-covid-19-pandemic-indonesia-was-accused-of-cheating-in-its-export-activities-for-16-times udayana journal of law and culture vol. 6 no. 2, july 2022 228 countries that adopt various ways to face the covid-19 challenges that affect the domestic industries. firstly, the goi has issued the wfh policy, where workers are allowed to fulfill the essential responsibilities of the job from home using information and communications technology (ict).54 this was issued as an alternative for the state’s civil servants to minimize the spread of covid-19.55 this policy affects all workers because they are unable to work in the office and have their working hours limited, including the kadi staff who investigate dumping actions on the field. the minister of utilization of the state apparatus and bureaucratic reform has issued three circular letters for all state's civil apparatus as a guideline in the new normal life, respectively. basically, these circular letters serve as a guideline for all civil apparatus to adapt to their working hours and system in the covid-19 pandemic. civil servants must go to work needs to be adjusted by the work system by running the health protocol in daily activities. the adjustment of the work system made the flexibility of the work there is location adjustment, including the implementation of (work from office/wfo) and wfh.56 secondly, the kadi still lack capable human resources to conduct dumping research in the field, which makes the kadi cannot cover all dumping actions that exist in the indonesian market, so they can only prove some dumping actions,57 which caused the anti-dumping instruments and regulations not maximized due to the lack of awareness and understanding of the existence of anti-dumping action.58 thirdly, the goi provided more support in import duty facilities during the period of the pandemic.59 the goi regulated suspended tax on imported products to implement bmad on some goods and materials during the covid-19 pandemic in accordance with regulation of the minister of finance no. 134/pmk.010/2020 concerning the import duty borne by government 54 international labour organization, “an employers’ guide on working from home in response to the outbreak of covid-19”, , publication on 2020, 5. 55 lina vyas and nantapong butakhieo, “the impact of working from home during covid-19 on work and life domains: an exploratory study on hong kong policy,” policy design and practice 4, no. 1 (2021): 64. 56 see circular letter of minister of utilization of the state apparatus and bureaucratic reform no. 19 of 2020 concerning the adjustment of the state civil apparatus working system in preventing the spread of covid-19 virus in the government agencies environment, as amended by circular letter of minister of utilization of the state apparatus and bureaucratic reform no. 34 of 2020; and circular letter of minister of utilization of the state apparatus and bureaucratic reform no. 58 of 2020 concerning the employee system of state civil apparatus in new normal order. 57 kadin, “begini penjelasan kadin soal tuduhan trade remedies,” https://www.kadin.id/news-event/news-detail/1444/begini-penjelasan-kadin-soaltuduhan-trade-remedies. 58 indonesia anti-dumping committee, “background,” https://kadi.kemendag.go.id/about 59 global complience news, “indonesia: more support from the government of indonesia in the form of import duty facilities in light of the covid-19 outbreak,” https://www.globalcompliancenews.com/2020/11/10/indonesia-government-borneimport-duties-in-light-of-covid-1901102020/ https://www.kadin.id/news-event/news-detail/1444/begini-penjelasan-kadin-soal-tuduhan-trade-remedies https://www.kadin.id/news-event/news-detail/1444/begini-penjelasan-kadin-soal-tuduhan-trade-remedies https://kadi.kemendag.go.id/about https://www.globalcompliancenews.com/2020/11/10/indonesia-government-borne-import-duties-in-light-of-covid-1901102020/ https://www.globalcompliancenews.com/2020/11/10/indonesia-government-borne-import-duties-in-light-of-covid-1901102020/ measures on chinese products in indonesia during the covid-19 pandemic: why was anti-dumping action imposed? andi putri amanda, wardah 229 on imported products and materials for producing of products and/or services by certain industry and regulation of minister of industry no. 31 of 2020 concerning guidelines for implementing the utilization of government borne import duties for the importation of goods and materials to produce goods and services in certain industries that are affected by the covid-19 pandemic. this is a form of enforcement of punitive import duties.60 the anti-dumping action has a relation to other policies from the ministry of finance and the ministry of industry, as the goi took the initiative to support import duties of certain goods and materials for 33 industrial sectors under the supervision of four directors-general, which was enacted to preserve the supply of raw materials during the covid-19 pandemic.61 the imported products should be exempted from receiving since the goi released lockdown and wfh policies which make the kadi restrained to exercise their responsibilities on the field, and the parties cannot provide more data associated losses suffered. in addition, in the absence of on-the-spot verification, bmdp would be applied if the goods and materials are:62 1. subject to 0% import duty. 2. subject to 0% import duty in accordance with international agreement or treaty. 3. subject to import duties related to anti-dumping, temporary action of anti-dumping, security action, temporary security action, countervailing duties, and retaliation. 2.3 implementation of anti-dumping action towards the chinese products in indonesia traditionally, china is the uppermost target for anti-dumping action to be enforced by the member state of the wto,63 as announced in march 2020 by kadi, to start the investigation of anti-dumping on chinese products. during the covid-19 pandemic, the kadi does not apply policies specific to conducting investigations. however, it will be done with caution for applied bmad.64 and obtained detail by directly posing questions. even though on-the-spot verification cannot be performed during the covid-19 pandemic, this is not a problem because the kadi can still make requests for data and information that is expected to be confirmed during the 60 agneshwar sen, op.cit., 10. 61 ibid; see also regulation of minister of financial no. 134/pmk.010/2020 on government borne import duties for the importation of goods and materials to produce goods and/or services in certain industries that are affected by the covid-19 pandemic, art. 6. 62 an incentives provided by the government for producers based on imported raw materials to encourage the competitiveness of domestic industries. see website admin, “ada bea masuk ditanggung pemerintah?,” https://bcmarunda.beacukai.go.id/infografis/ada-bea-masuk-ditanggung-pemerintah/ 63 abdulkadir yilmazcan, “the role of anti-dumping in the us-china trade war,” article china and wto review 1 (2021): 8. 64 hanna tasya zahrani, “efektivitas performa komite anti dumping indonesia dalam memberi perlindunngan hukum pada industri lokal,” jurnal kepastian hukum dan keadilan 2, no. 1 (2020): 78. https://bcmarunda.beacukai.go.id/infografis/ada-bea-masuk-ditanggung-pemerintah/ udayana journal of law and culture vol. 6 no. 2, july 2022 230 investigation period. according to article 6.7 of anti-dumping agreement, which states that “to verify information provided or to obtain further details, the authorities may carry out investigations in the territory of other members as required...” it is not an obligation for the kadi to carry out onthe-spot verification. the application of the final anti-dumping procedure is pursuant to the wto-specific mechanism, which includes the following stages and conditions:65 1. they were carrying out investigations after a complaint from the affected. 2. such investigation aims to prove the existence of dumping. 3. such investigation aims to prove the occurrence of physical damage to the domestic industries that produce a product compete for that dumped product. 4. the damage did not happen because of factors other than dumping. in other words, there must be a causal relationship between dumping and the occurrence of damage. before starting the anti-dumping investigation, the goi has prepared enough evidence to provoke an anti-dumping inquiry into those chinese products are lysine and hot rolled coil of other alloy steel. after that, the kadi has an issue pre-notification to the chinese government concerning initiating an anti-dumping investigation of both products. this became knowledgeable how the home industry which declared that the lysine and hrc alloy steel product from china became sold with a sizeable fee margin and affected the production of a like product inside the country.66 in the investigation, the authorities of the anti-dumping focused on whether there is a lower export price in the domestic country rather than knowing how the lower price performed.67 the limit time for investigation of the anti-dumping action will be within twelve months from the decision at the investigation was issued, with a possible extension of up to six months if necessary. 68 after the investigation issue a final decision, the authorities of anti-dumping could be imposing anti-dumping duty. the duration of imposing anti-dumping action is generally five years, but that will be revised if the circumstances of the exporters are changing, or the action can be extended to more than five years if the dumping strategy has not been terminated. the anti-dumping 65 soheyb salah kahlessenane, “anti-dumping regulations and policies: some insights from algeria,” athens journal of law 5, no. 1 (2019): 54. 66 kompas, “keluhkan serbuan baja china, bos krakatau steel serukan petisi antidumping,” https://money.kompas.com/read/2020/02/17/202300226/keluhkan-serbuanbaja-china-bos-krakatau-steel-serukan-petisi-anti-dumping?page=all#page2 67 chen yu, “currency manipulation and the wto laws: should the anti-dumping mechanism be entirely dumped?,” journal of world investment & trade 20, (2019): 902. 68 ant lawyers, “vietnam investigates and applies anti-dumping measures on some plastic products from china, thailand and malaysia (ad07),” https://antlawyers.vn/legalservice/vietnam-investigates-and-applies-anti-dumping-measures-on-some-plasticproducts-from-china-thailand-and-malaysia-ad07.html https://money.kompas.com/read/2020/02/17/202300226/keluhkan-serbuan-baja-china-bos-krakatau-steel-serukan-petisi-anti-dumping?page=all#page2 https://money.kompas.com/read/2020/02/17/202300226/keluhkan-serbuan-baja-china-bos-krakatau-steel-serukan-petisi-anti-dumping?page=all#page2 https://antlawyers.vn/legal-service/vietnam-investigates-and-applies-anti-dumping-measures-on-some-plastic-products-from-china-thailand-and-malaysia-ad07.html https://antlawyers.vn/legal-service/vietnam-investigates-and-applies-anti-dumping-measures-on-some-plastic-products-from-china-thailand-and-malaysia-ad07.html https://antlawyers.vn/legal-service/vietnam-investigates-and-applies-anti-dumping-measures-on-some-plastic-products-from-china-thailand-and-malaysia-ad07.html measures on chinese products in indonesia during the covid-19 pandemic: why was anti-dumping action imposed? andi putri amanda, wardah 231 action takes the form of ad valorem duties,69 but that depends on specific duties or price undertakings.70 based on article 1(7) of government regulation of republic indonesia no. 34 of 2011 and article 2.2 of the anti-dumping agreement, the kadi will provide evidence comparing the margin prices of import products and domestic products in the proof of chinese product dumping. for data and information related to export prices, the kadi requested domestic producers via a questionnaire at the time commencement of the investigation. the kadi can carry out dumping margin calculations or prove the occurrence of dumping from foreign steel company. china is the most aggressive in terms of dumping. during the covid19 pandemic, the goi is expected to continue monitoring any imported products from china. china carried out a trading recovery in the first covid19 case in indonesia. this makes imported products increase in indonesia, allowing the lack of competitiveness of similar products made in the domestic country. 2.3.1. lysine lysine is a compound that forms protein, which is commonly used for the production of animal feed.71 the total import of lysine in indonesia on 2020 is 37.336.279 net weight;72 the number is lower than on 2019 from 39.398.212 net weight, during the first investigation. table 1 description of lysine description quanti ty (mt) trend % market share % trend % p1 p2 p3 p1 p2 p3 china 18.707 30.836 37.070 40,8 72,6 95,6 98,9 16,7 import from another country 7.045 1.414 418 (75,6) 27,4 4,4 1,1 (79,8) total import 25.752 32.250 37.488 20,7 100 100 100 source: the indonesian anti-dumping committee, 2021. in the evidence of the anti-dumping investigation, the goi has prepared enough evidence to provoke an anti-dumping inquiry into those chinese products is lysine. after that, the kadi has an issue prenotification to the chinese government concerning initiating an anti 69 an ad valorem tax is a tax based on the assessed value of an item, such as real estate or personal property. the most common ad valorem taxes are property taxes levied on real estate. however, ad valorem taxes may also extend to a number of tax applications, such as import duty taxes on goods from abroad. see investopedia, “ad valaroem tax,” https://www.investopedia.com/terms/a/advaloremtax.asp 70 liza jabbour, et.al., op.cit., 3. 71 idn financials, “anti-dumping committee starts investigation on chinese imported lysine,” https://www.idnfinancials.com/news/32887/anti-dumping-committee-startsinvestigationchinese-imported-lysine 72 indonesia ministry of trade, “siaran pers kadi mulai penyelidikan antidumping barang impor lysine asal tiongkok,” march, 24th 2020. https://www.investopedia.com/terms/a/advaloremtax.asp https://www.idnfinancials.com/news/32887/anti-dumping-committee-starts-investigationchinese-imported-lysine https://www.idnfinancials.com/news/32887/anti-dumping-committee-starts-investigationchinese-imported-lysine udayana journal of law and culture vol. 6 no. 2, july 2022 232 dumping investigation of chinese lysine. this is conducted with the aid of early proof and a complete report approximately the existence of dumping of goods, losses, a causal link among dumping, and losses suffered through the applicant.73 2.3.2. hot rolled coil of other alloy steel indonesia is a high-level consumer of steel in the domestic market. the local indonesian producers cannot fulfill the steel in over demand in the upstream, intermediate, and downstream.74 hot rolled coil of other alloy steel is a part generation of steel. in the calculated on the period investigation hrc steel by kadi until 2020 is 461.548 tons with tarif post 7225.30.90 from china. to determine an anti-dumping action, kadi may conduct an investigation for 12 months, and if necessary, it can be extended up to 18 months.75 table 2 description of hrc alloy steel country unit pi p2 pp trend% china mt 298.745 358.193 461.458 24 another country mt 152.928 116.100 119.607 (12) total import mt 451.674 501.293 581.155 13 source: the indonesia anti-dumping committee, 2021. the imposition bea masuk anti-dumping (bmad) of alloy steel is an important challenge to the national industry because the mfn import duty rate for steel merchandise in indonesia has largely been reduced (even as much as zero percent). 76 this is due to a free trade agreement (fta) between indonesia and major steel-producing countries, one of which is china, which has reduced the mfn import duty to 0%.77 indonesia needs to limit the use of imported steel, which causes the chinese steel sold in indonesia is with the cheap price. it can threaten the national steel industry. the goi must be effective in encouraging local producers to increase steel from local producers on conducting government projects. 2.4 chinese government responding to indonesian anti-dumping action after the announcement that the kadi will investigate the alleged chinese product, then it takes pre-notification for the representative accused chinese government in indonesia regarding the receipt of application of anti-dumping investigation of lysine and hrc alloy steel 73 anita kamilah, “law protection for domestic industries due to dumping practice,” jurnal dinamika hukum 15, no. 3 (2015): 308. 74 lily pratiwi, “imposition of anti-dumping duty (bmad) toward chinese cold rolled coil/sheet (crs/s) products,” indonesia law review 3, no. 2, (2013): 152. 75 indonesian ministry of trade, “kadi memulai penyelidikan anti dumping atas barang impor hot rolled coil of other alloy steel”, march, 3th 2020. 76 kompas, loc.cit. 77 ibid. measures on chinese products in indonesia during the covid-19 pandemic: why was anti-dumping action imposed? andi putri amanda, wardah 233 products imported from china. based on article 3 of the government regulation no. 34 of 2011, it is stated that bmad will be imposed after an investigation by the kadi is conducted, the investigation may be carried out based on a request or based on the initiative of the kadi. from the kadi notification, the representative of the trade remedy and investigation bureau of the ministry of commerce of the people's republic of china (trb) stated that anti-dumping investigation must determine lysine and hrc alloy steel is like product in production.78 the government of china asked for a discussion with indonesia relating to the adjustments of value added tax (vat) rebates of export price calculation in anti-dumping. the kadi recognized the export rebates received by the chinese companies as a return of vat levied upon exportation and regarded it as a downward adjustment to the export price, which leads to an irrationally high dumping margin. later, many chinese companies responded to the issue and submitted supplemental evidence as the kadi request.79 the chinese government sincerely expects kadi to consider the above opinions in the procedures of these two cases and future anti-dumping investigations against china, provided that there are still confusion. the chinese government is also willing to continue the communications in any appropriate manner trb avails itself of this opportunity to renew to kadi the assurances of its highest considerations.80 the increase of imports products in dumping has an impact on volume both in absolute and relative terms as well as the impact of prices on indonesia in the form of price undercutting and depression due to unfair competition of the import goods from china. indonesia suffered material losses caused by imported goods that come from china. based on the final investigation report, the margin dumping of lysine products is 6.02% to 33.20% and hrc alloy steel's margin is from 7,2% to 50,2%.81 after the kadi concluded that there was dumping in the indonesian market for chinese products, it notified the relevant parties, including the wto secretariat and the chinese government.82 later, the government of china accept the kadi final report and it did not bring the case to the wto dispute settlement body. 78 indonesian anti-dumping committee, “final report of anti-dumping investigation on hot rolled coil of other alloy steel (hrc alloy) import from china, tarrif post no: 7225.30.90,” 25-27. 79 indonesian anti-dumping committee, “final report of anti-dumping investigation on lysine import from china,” 19-21. 80 the indonesian anti-dumping committee, “final report of anti-dumping investigation on hot rolled coil of other alloy steel (hrc alloy) import from china, tarrif post no: 7225.30.90,” op.cit., 39. 81 ibid. 82 ibid. udayana journal of law and culture vol. 6 no. 2, july 2022 234 3. conclusion as a wto member state, indonesia issued numerous policies in addressing the covid-19 pandemic. one of the policies is anti-dumping action taken by the ministry of trade that aims at protecting domestic industry from injury. since no specific legislation regarding anti-dumping is created during the covid-19 pandemic, kadi continues using the existing rule to implement anti-dumping measures. china is indonesia's largest importer and a country that takes aggressive anti-dumping measures. since the covid-19 pandemic, increased oversight of chinese products entering indonesia urge the bigger role of kadi. kadi’s scientific investigation succeed in proving the causal link between certain imported chinese products, namely lysine and hot rolled coil of another alloy steel (hrc alloy steel), and the injury of indonesian domestic industries. there are some challenges faced by indonesia in preventing dumping during the pandemic. first, the policy of wfh makes the task of the apparatus cannot be implemented optimally. second, kadi still lacks capable human resources to conduct dumping research in the field. as a result, kadi cannot discover all dumping actions that occur in the indonesian market, because they can only prove some dumping actions. third, the decision of the minister of finance to suspend import duties on imported products seems to be problematic. bibliography books hoekman, bernard m. and mavroidis, petros c. law, economic, politics second edition. london: routledge, 2016. matsushita, mitsuo. schoenbaum, thomas j. mavroidis, petros c. and hahn, michael. the world trade organization law, practice, and policy, new york: oxford university press, 2015. van den bossche, peter. the law and policy of the world trade organization”. new 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https://voi.id/en/teknologi/6946/during-the-covid-19%20pandemic-indonesia-was-accused-of-cheating-in-its-export-activities-for-16-times https://voi.id/en/teknologi/6946/during-the-covid-19%20pandemic-indonesia-was-accused-of-cheating-in-its-export-activities-for-16-times https://voi.id/en/teknologi/6946/during-the-covid-19%20pandemic-indonesia-was-accused-of-cheating-in-its-export-activities-for-16-times vol. 4, no. 2, july 2020, pp. 193-210 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3600 e-issn 2549-0680 193 the application of equity in brazilian court decisions during the covid-19 pandemic: are there any obstacles? anna lucia berardinelli * berardinelli and meirelles law firm-brazil article received: 18th may 2020; accepted: 25th july 2020; published: 30th july 2020 abstract brazil follows the precepts of the civil law system that leaving only limited space for equity. the ongoing pandemic spread crisis and uncertainty worldwide, and there is not enough time for legislators to fill the gaps. even the already existing legal provisions were designed to cope with unexpected situations, they might be inappropriate in such an unprecedented situation, where everyday contracts are cancelled, obligations are defaulted, companies are bankrupt, and individual rights are mitigated. courts in civil law countries usually do not allow to ground their decisions exclusively on equity powers. this article aims to discuss and propose how the use of evaluative equity in judicial decisions could be the path in the search for the realization of justice, through not only its integrative function but also in an evaluative way, ensure justice in the concrete case. this article concludes that equity is an essential tool for achieving a fair decision and the demands for the common good. keywords: brazil; civil law systems; court decision; equity; covid-19 pandemic. how to cite: lucia berardinelli, anna. “the application of equity in brazilian court decisions during the covid-19 pandemic: are there any obstacles?.” udayana journal of law and culture 4, no. 2 (2020): 193–210. https://doi.org/10.24843/ujlc.2020.v04.i02.p04 doi: https://doi.org/10.24843/ujlc.2020.v04.i02.p04 1. introduction in the beginning of civilization, plato and aristotle wrote studies that are real legacies on the scope of the word "equity". the concern about the extension of the power granted to judges upon deciding based on equity, however, had already been introduced long before plato and aristotle studies. maria fernanda dias mergulhão reveals that the concept of equity exists since the early stage of human civilization the natural state -, in which equity was presented in all decisions, behold, the correspondence between action and reaction was felt in the face of the punitive, correctional, punishing effect that was imposed on conducts disapproved by that social environment. said concept of equity, though, was open and too broad, often generating injustices since equity was not a rule of exception, but otherwise ** email/corresponding author: annalucia@bmcalaw.com.br https://doi.org/10.24843/ujlc.2020.v04.i02.p04 mailto:annalucia@bmcalaw.com.br the application of equity in brazilian court decisions during the covid-19 pandemic: are there any obstacles anna lucia berardinelli 194 applicable to all cases, in an unrestricted and ordinary manner.1 the search for the true scope of equity, and the pursuance of the manner equity could be applied to ensure justice in the concrete case dates back to the classical period. aristotle refined the concepts presented by plato presenting his definition of equity, in nicomachean ethics.2 in said work the philosopher expresses that equity is a form of justice, since laws, being theoretical and abstract, should be adapted to the concrete case, with its own set of characteristics and peculiarities. equity would enable the laws to be better understood, in order to say justice in the best way. limongi frança explains: “aristotle's metaphor used to differentiate justice from equity is well known. the philosopher said that the first would correspond to a rigid ruler, while the other would resemble a malleable ruler, capable of adapting to the anfractuosities of the field to be measured. without breaking the rule (which in latin is regulated, as, in the same way as a rule), the magistrate, when measuring the equality of specific cases, sometimes finds himself in the contingency of adapting them to unforeseen details and, often, unpredictable by law, under penalty of perpetrating a real injustice and, thus, contradicting the very essential purpose of legal norms.” 3 looking back in history, the roman law had its first significant milestone in the application of equity, since the justinian code expressly empowered the judge to decide for equity in preference to the jus strictum. in medieval law, st. thomas aquinas developed the concept of equity proposed by aristotle under the christian bias. he bequeathed to the world the work entitled "summa theologiae." 4 in new civilizations, the existence of the legal status and the status of legality, prevails. therefore, equity would be an exception and could only be applied if previously disposed of by the legislator. the stability of social relations that became more recurrent, as the decision must be based on the law, and not on an abstract concept of natural justice, submitted to the backgrounds of those making the decisions. this is the interpretation that prevails in the legal systems that follow the precepts of the civil law system, such as brazil. brazil does not officially adopt a system of binding precedent in which its legal system and procedure remain base on the civil law tradition.5 the brazilian legal system uses the “súmulas” to standardize precedents, a type of summary of leading 1 maria fernanda dias mergulhao, “o principio da equidade: por uma nova exegese,” gen jurídico, 21 july 2017. 2 see aristóteles. etica nicomachea. milano: bompiani, 2003. 3 r. limongi frança. hermeneutica jurídica (sao paulo: saraiva, 1988),71. 4 maria fernanda dias mergulhao, loc.cit.; santo tomás de aquino. summa theologiae: cura fratrum eiusdem ordinis. (matriti: biblioteca de autores cristianos, 1952). 5 evan rosevear, “social rights interpretation in brazil and south africa (interpretação de direitos sociais no brasil e na áfrica do sul),” revista de investigações constitucionais 5, no. 3 (2018): 171. udayana journal of law and culture vol. 4 no. 2, july 2020 195 jurisprudences, which has a binding effect.6 understanding the real meaning of the word “equity” is of utmost importance, since, based on its genesis, equity was conceived as an open and imprecise concept due to its very nature. the review of the expression “equity” from the most diverse angles (cultural, historical, economical, etc.) is imperative, since equity is a word with plural significance, generating numerous divergences in doctrinal and jurisprudential grounds. part of the doctrine refers to the concept of luis recaséns siches, which maintains that equity would be superior to the legal “just”, since equity is an expression of the natural just, which means that the legal just would be in fact detached from the words of the law, if not synced with the just in relation to the specific case. 7 the judge could then decide according to his prudent discretion, when he considered the application of the legal text unacceptable or that the outcome would be unreasonable. there are other positions, which say that equity would be a recourse to insufficiencies in the legislation, used to fill regulatory gaps, or even to clarify open statements. other positions refer to equity as the capacity of adaptation of abstract legal statements to the circumstances or factual requirements of the specific case, according to certain criteria. equity is inherent in the mechanism of legal interpretation, which would always impel the interpreter to adopt reasonable exegesis, in tune with common sense and accepted, without disgust, by human reason. in this perspective, it is not exactly a decision for equity, but a decision handed down according to equity. see the excerpt below providing streck-delfino’s conclusion:8 “the judge would be prevented from departing from the positive law, nor could he correct or rectify the law, since his purposes, although noble, would not be sufficient to authorize him, from his own voluntarism, to shape the result of his decisions, to reach its own idea of justice. this latter position seems a little better, although it is not known what such reasonable exegesis would be. ” based on this unquestionable divergence, some authors, such as carlos maximiliano states there are guidelines in the sense that equity is not a vehicle for the protection of minor and obscure interests. equity should be used only to attenuate the rigor of a text and interpret it in a way that is consistent with human progress and solidarity: 9 “…it will never be the same invoked to act, or decide, against a clear and foreseen positive prescription. this caveat, moreover, is 6 lucas alves edmundo gomes, “the influences of common law on the brazilian new code of civil procedure,” international journal of legal information 46, no. 3 (2018): 176-180 7 streck, lenio luiz and lúcio delfino. “novo cpc e a decisão por equidade: a canabalização do direito.” consultor jurídico, 29 december 2015. 8 ibid. 9 carlos maximiliano. hermeneutica e aplicação do direito (rio de janeiro: forense, 2003), 142. mailto:luciodelfino%40rbdpro.com.br the application of equity in brazilian court decisions during the covid-19 pandemic: are there any obstacles anna lucia berardinelli 196 less important today than it would have been in the past: first, since the prestige of the brocardo has disappeared in claris cessat interpretatio; second, since, if in other times the possible result of an exegesis avoided absurdity, excessive harshness or evident injustice, today, with the victory of the doctrine of the socialization of law, more than ever the hermeneutic he despises fiat justitia, pereat mundusand is guided by the likely consequences of the decision he coldly reached.” as a matter of fact, it is impossible to provide laws for all conducts that deserve legal treatment. as a matter of fact, in any legal system, this attempt, if accomplished, will fail, since the human being, who is mutant, in their essence, will reveal a new condition or particularity, which has not been previously foreseen. furthermore, life is always full of surprises and unthinkable circumstances, such as the one we are experiencing right now, with the covid-19 pandemic. thus, the use of equity as a way of doing justice to individual cases is mandatory. considering this apparent contradiction as a motivation, it is necessary to examine in this article how traditional positivism provided a poor treatment to the issue, and, on the other hand, reviewing the answer provided by classical jus naturalism, analyze the way this line of thought proposes to solve the issues involved derived from the tension between the general law and the specific case. the motivation consists of what has been provided by aristotle in nicomachean ethics: since the distance between the general rule, established by the legislator in view of what ordinarily happens, and a particular event that, nevertheless being formally included in the words of the legal text, be so specific that it moves away from that common situation, that the legislator took into account when drafting it. in fact, many situations in real life could not be anticipated by the legislator. therefore, if said situations have not been taken into account by the law operator, this situation will lead to severe injustices. the most considerable difficulty is not to define what equity is accurately, but demonstrate when and why equity should be applied in a normative system, like the brazilian system, which follows the precepts of the civil law. actually, the civil code and the civil procedure code have expressly provided that the application of equity is minimal, as we will discuss below. even academically, most brazilian legal scholars and the highest brazilian courts consider that equity should only be applied whenever it is foreseen by law. the following is an example related to tax law, which provides that equity should not prevail to the detriment of law: “in the “inter-vivos” property transfer, tax takes according to the appealed arrest. extraordinary appeal that should be dismissed, since paragraph 3, of art. 23, of the constitution of the brazilian republic, has not been the subject matter of assessment by the decision then rendered (summary 282 and 356). otherwise, the udayana journal of law and culture vol. 4 no. 2, july 2020 197 appealed decision was based on the state legislation and, referred to paragraph 2, of art. 108 of the tax code, according to which “equity cannot be evoked to avoid the due tax requirement. reasonable interpretation of the federal law (sum 400). finally, no case-law controversy has been proven (sum 291).” 10 the example above shows the force and power of written law in brazil, which adopts the civil law system, enforcing the law for justice in many hard cases. the reality in brazil is that equity is mostly allowed only in its integrative function, filing existent gaps. on the other hand, in some very emblematic cases of the brazilian supreme court, decisions are based mostly on equity. in adpf 54, the famous case involving the right to abortion in case of anencephaly of the fetus, the woman's mental health has acquired a more extensive protection scope, under the argument that the science of anencephaly, considering the pregnant woman, generates psychological disturbance at a high degree, and, therefore, the pregnant woman’s interests must prevail over the right to life of the fetus as a constitutional value. the review of some parts of this trial shows the rhetorical exercise, by the amicus curiae, to pursue what is known as “just”, as in jusnaturalism, by justifying the result in the classic brazilian literature, or religious beliefs and feelings, to suppress the application of written law, which forbids abortion in brazil: “[...] although there are other people involved in this case, the pregnant woman is the person who suffers more, since the anencephalic fetus is an event in her body. the pregnant woman, in this case, will not even become a mother, since there is and there will not be any child. by forcing women to keep a fetus that is going to die, or that is already technically dead, the state and society interfere with her right to bodily integrity and to make decisions about her own body. in the case of healthy fetuses, the discussion on whether the woman is obliged to have the child can be carried out, as the fetus will become a person and, therefore, the life of the fetus is entitled to preservation.”11 justice carmem lucia, one of the 11 justices of the brazilian supreme court, provided her opinion: “anyone (who doesn't even need to have read legal literature), who has had the opportunity to read “manuelzão e miguilim”, by 10 brazilian supreme court. re 111027, judging panel: 2nd panel rappoteur: justice djaci falcao, trial, 1986. 11 speech by doctors telma birchal and lincoln frias in public hearings transcribed in the action for breach of a fundamental precept number 54 (adpf report 54). the english version, among others, can be read in lúcia gonçalves de freitas, “the stf decision on abortion of anencephalic fetus: a feminist discourse analysis,” alfa: revista de linguística (são josé do rio preto) 62, no.1 (2018):26. the application of equity in brazilian court decisions during the covid-19 pandemic: are there any obstacles anna lucia berardinelli 198 guimarães rosa, knows that perhaps the most exceptional example of human dignity, that god has conveyed to us, was precisely that of the mother and look, i have a super dad! the mother's dignity goes beyond herself, beyond her body. when guimarães rosa puts the woman in her arms carrying a dead son, who had damaged a little piece of cloth on her little foot a few days before, she seeks to bathe the dead son's small body and almost bumps into the basin; she then ensures that, even though the child is dead, she doesn't have any bumps since it would be suffering imposed on that little body. anyone who has read it, will know that when a mother decides to interrupt a life (for a moment or life for another month), this is not an easy choice, but otherwise a tragic choice always; this is a choice that is made to continue and not to stop; this is the choice of the possible in a complicated situation. therefore, i think it is necessary to know that all options like this, even this interruption, are painful. the choice is the least pain; this aims not to hurt, since the pain of living has already occurred, as well as the pain of dying. this only enables the choice in that sense.”12 the examples above demonstrate that equity is applied only exceptionally in brazil, and in very emblematic cases. even in those cases, a great argumentative effort (even mentioning literature) is required to fight the sharply raised positivist view. this is a big challenge in a very hermetic civil law system, such as the brazilian civil law system, which is strongly associated with the written norm. equity is also generally understood as the body of norms developed by the court of chancery or court of equity (like the trust, the injunction, etc) and regarded as a judge-made law developed in parallel to the common law.13 it may be assumed that that only by some kind of symbiosis between the civil law system and the common law system,14 balancing the extremes of each system, a broader application of equity would be possible. the present article, is written in light of the current health and economic crisis that are affecting the world. it aims to discuss and propose how the use of evaluative equity in judicial decisions could be the path in the search for the realization of justice, through not only its integrative function but also in an evaluative way, ensure justice in the concrete case. this article focuses on some legal and practical challenges as described above. besides, it explores the principle of equity, since equity is the adjustment of the law to the real case through the analysis of the relevant characters of the said case), and the spectrum of power distributed to courts in civil law tradition, particularly in the brazilian legal system. this 12 brazilian supreme court. adpf 54 – opinion of justice carmem lúcia, 13 anne-françoise debruche, “what is "equity"? of comparative law, time travel and judicial cultures,” revue générale de droit 39, no.1 (2009): 223 14 court equity power are practiced in common law countries, such as the united states of america. see for example in the writing of kristin a. collins, “a considerable surgical operation”: article iii, equity, and judge-made law in the federal courts,” duke law journal 60, no.2 (2010): 249-343. udayana journal of law and culture vol. 4 no. 2, july 2020 199 research also seeks to demonstrate the relevance and importance of the definition of equity to the sense of justice, and how the practical application of equity proves to be an indispensable tool for the state to the efficient delivery of justice through judicial decisions, thus fulfilling its social function. this paper used the inductive research method, relying on the review of the written law, and very recent court decisions related to the subject. the approaches in this research are the historical approach, comparative approach, and the conceptual approach. it examines the background of what is being studied and the development of the legal issues at hand, and assess the issue based on a historical approach. the conceptual approach departs from the views and doctrines in legal studies. the legislations used as the primary legal materials in this paper are, among others, the constitution of the republic of brazil of 1988, the brazilian code of civil procedures, and the brazilian civil code. besides, it utilizes some academic papers, journal articles, and court decisions. 2. result and discussion civil law system generally puts some limitations to the application of equity. in the brazilian case, those limitations are expressed in the civil code and civil procedure code, which provide that equity should only apply when there is no legal norm applicable to the case, or when the law specifically authorizes it. this analysis initially requires, however, the investigation of the content of the word equity, subdividing it in its evaluative and integrative forms. 2.1. evaluative equity and integrative equity equity is a powerful tool used to interpret the law, assisting judges who seek to approach the ideal application of justice and apply a general rule to the specific case. the following is an excerpt of silvio venosa’s lesson on the matter: “equity is not only the softening of the norm in a specific case, but also a feeling that derives from the judge’s heart. since its concept is philosophical, it gives rise to several conceptions. (…). let us understand, however, that equity is a philosophical idea, above all; and that each law enforcer will carry out its own assessment, but with the same purpose of easing the norm. undoubtedly, there is a lot of subjectivity of the interpreter in its use. 15 ” this is similar to aristotle's solution to the apparent dichotomy between the just and the equitable. equitable is indeed fair, but not according to the law. equity is, actually, a correction of the just established by law, to the point that it is defective due to its generality. although the law 15 silvio de salvo venosa. direito civil (sao paulo: atlas, 2001), 47. the application of equity in brazilian court decisions during the covid-19 pandemic: are there any obstacles anna lucia berardinelli 200 is a universal norm, the law cannot deal universally with particular cases16. klaus cohen-koplin agrees with this understanding as follows: “equity, therefore, does not imply any kind of revolution by the enforcer against the law, but a real insistence on the preservation of its legitimate field of autonomy and incidence.”17 based on this aspect, we have equity in its evaluative form, which is a broad concept that can present itself in several aspects, such as the question of ‘social function of the norm’. therefore, when applying the evaluative equity, the legal analysis will be filed with equity as an ideal of justice, but the ruling will still be based on formal and written law. see, in this regard, the lesson by justice fux, one of the most brilliant justices among the 11 justices of the brazilian supreme court: “substantially, the judge, when deciding the merits, must adopt the “solution that he considers most fair and equitable, taking into account the social goals of the law, and the requirements of the common good. in this regard, the law, using legally indeterminate concepts, authorizes the judge to reverse the old syllogism and adopt the just solution and then adorn it with the legal rule applicable, in the light of equity and the requirements of the common good. the judge must take into consideration not only the letter of the law, but the environment in which the law will be applied, shaping the law to the new realities, without however being authorized to decide against legem. this rule in lawsuits works to its fullest when there are gaps in the law.” 18 even in the civil law system, there are no significant controversies regarding the application of equity in its evaluative form, since the judge is still attached to the legal text, and the pursuit of justice as an ideal is always something desirable. however, the most significant controversies arise when we analyze equity in its integrative form. moving forward, we must still examine the integrative form of equity, due to its subdivision into two functions: integrative and corrective. the first function would rise in the absence of law, that is, a gap, where the judge does not find any law applicable to the concrete case. the second function results from the fact that the existing law is so significantly unjust concerning the concrete case, that the judge finds no other solution than applying equity to the case. regarding the integrating function, sergio cavalieri filho, former 16 aristóteles. etica nicomachea. op.cit. 17 cohen-koplin, klaus. “equidade e razão prática na decisão judicial: algumas reflexes de teoria geral do direito e de história do pensamento juridico.” revista da faculdade de direito da ufrgs 28 (2011) 18 luis. fux, curso de direito processual civil. (rio de janeiro: forense, 2001), 480. udayana journal of law and culture vol. 4 no. 2, july 2020 201 president of the court of justice of the state of rio de janeiro, and eminent legal scholar, teaches as follows: “according to aristotle, equity has an integrating and corrective function. the first takes place when there is a void or gap in the law, in which case the judge can use equity to resolve the case, without reaching the point of creating a rule, as if it were the legislator.”19 the idea behind the integrating function is that based on the circumstances of a given case, the judge could reach a conclusion, tailored to that specific case, almost as the legislator, himself, could have foreseen the situation, and been aware of the case. regarding the corrective function, minister ruy rosado, former justice in brazilian superior court of justice, clarifies: “(…) however, this equity, which aristotle refers to in his work nicomachean ethics, is the corrective equity, the equity that the judge will apply when he needs to avoid an injustice that would result from the strict application of the law.” 20 after discussing the different forms and functions of equity, we must stress that the brazilian system, as a system that follows the precepts of the civil law, generally speaking, does not allow the unrestricted use of the integrative equity, but admits, however, without significant controversies, the application of equity in its evaluative form. the matter is far from being definitively settled, as demonstrated in the other sections of this article. 2.2. equity and the brazilian legal system the brazilian legislation brings several examples of equity, in all its meanings already analyzed in this article. thus, the sense of equity in brazilian legislation may vary depending on the legal context in which equity is provided. but even if equity was provided for in the written norm, some legal provisions generate doctrinal controversy on the subject. provides that equity is admitted in the brazilian code of civil procedure in an unusual way, and upon prior law authorizing its application. it says that “the judge will only decide based on equity in the cases provided for in law.”21 the law of introduction to the rules of brazilian civil law (licc) provides that the application of the law, given “the social purposes to which the law is directed and the requirements of the common good” does not constitute an expression synonymous with equity, except in the conception that was expressed as evaluative equity. this is transcribed in article 5 of 19 ruy rosado apud carlos alberto menezes direito and sérgio cavalieri filho, comentários ao novo código civil. volume xiii (arts. 927 a 965), da responsabilidade civil, das preferências e privilégios creditórios (rio de janeiro: ed. forense, 2004), 335. 20 ibid. 21 article 127 of the brazilian code of civil procedure/ código de processo civil (cpc) https://www.lexml.gov.br/urn/urn:lex:br:rede.virtual.bibliotecas:livro:2004;000692152 https://www.lexml.gov.br/urn/urn:lex:br:rede.virtual.bibliotecas:livro:2004;000692152 https://www.lexml.gov.br/urn/urn:lex:br:rede.virtual.bibliotecas:livro:2004;000692152 http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13105.htm the application of equity in brazilian court decisions during the covid-19 pandemic: are there any obstacles anna lucia berardinelli 202 licc as follows: “upon applying the law, the judge will serve to the social purposes to which the law is directed and the requirements of the common good.” the same law actually gives room to the integrative equity, as stipulated in article 4 lrnb, as follows:” when the law is silent, the judge will decide the case according to the analogy, customs and general principles of law.” therefore, based on the two first examples, it is obvious that evaluative equity is present in brazilian legislation, and judges are authorized and encouraged to apply it. this is what we can observe, for example, in the cases related to access to health care, and the obligation to provide free and universal health care, that is established in the brazilian constitution. in that kind of law case, when the demand is to force the state to provide the health care, usually the courts base their decisions not only in the constitutional obligation, but also in evaluative equity, to justify that the eventual lack of resources from the state, could not justify the denial of a right. this view is clearly provided in the following excerpt from an award rendered by the supreme court in a case that has become a reference, and is often repeated with approval in subsequent decisions: "between protecting the inviolability of the right to life, which qualifies as an undisputable individual right ensured by the constitution of the republic itself (art. 5, caput), or making a financial and secondary interest of the state prevail against this fundamental prerogative, i understand once this dilemma is configured the ethical-legal reasons imposed on the judge, with one and only possible option: the undeniable respect for life.”22 but the main problem regards the third example, and the understanding of whether equity could be considered a general principle of law, or not. there is plenty of controversy regarding the subject. despite the doctrinal controversies, the idea that prevails is that equity is not present in article 5 of the lrnb, since that would be only a generic recommendation to serve the common good. also, the majority of the doctrine understands that article 4 above would not be an example as well, since equity does not constitute an analogy, custom or general principle of law. in that sense, the doctrine of silvio rodrigues explains the following: “strictly speaking, the judge cannot judge based on equity, since the solution based on equity is only admissible when the law expressly allows its application (cpc, art.127). so, given the case in the example, either the judge considers the action to be wellfounded and sentences the agent that caused the damage to the payment of the full indemnity, or if the judge understands that the indemnity represents excessive punishment for such a slight fault, the judge will dismiss the suit. in this case, hereunder, the indemnity cannot be set at half, or based on any other proportion, 22 re 271.286 agrrs, rapporteur justice celso de mello udayana journal of law and culture vol. 4 no. 2, july 2020 203 since the judge cannot decide a case based on equity. 23 ” regarding article 4, maria fernanda dias mergulhão refers to the doctrinal dissent on the functions of equity in her doctrinal article, as follows: “maria helena diniz points out that article 5 of the introduction law establishes equity as an element of adaptation and integration of the rule to the particular case, explaining that equity is the capacity of the legal norm to mitigate its rigidity, adapting to the current case. in its new role, equity does not intend to break the norm, but otherwise to extend equity to the social and -evaluative circumstances of the concrete fact at the moment of its application. after all, aristotle's respected definition of equity is that the justice of the specific case is repeated. 24 therefore the brazilian law provides that, equity can only be applied in its evaluative form, or in the cases expressly provided for by the legislator, in spite of all the controversies already demonstrated in this paper. as an example, we can mention this decision from the federal court of justice of rio de janeiro literally providing that equity could not be applied to avoid the enforcement of the tax law, even if the situation was unfair: “tax. decree-law no. 2434/88. tax on financial transactions as tax on exchange transactions. concerning an import slip, issued previously to july 1988, however, with the exchange transaction closed at a later date – 1. article 6 of decree-law no. 2434/88 is exempted from iof payment only in relation to import slips issued from 7/1/1988 on, and this provision is not applicable to slips issued before that date. 2. no standard (ctn art. 176), in spite of all the controversies already exposed, as for mere equity, exempt from paying the tax (ctn art. 108, paragraph 2). 3. unanimously grant of appeal and reference” 25 therefore, given the exceptional nature of its application, in order to respect the tripartite system of state functions, the equity should be applied exclusively when such an application is expressly allowed in the written norm. 2.3. equity in common law and civil law systems the idea of equity is different in the two major legal systems used worldwide. due to its own codified and written nature, the germanic roman system leaves much less scope for the judge upon rendering a decision, limiting the application of equity in its integrative dimension. in the 23 silvio rodrigues. responsabilidade civil. v. 4. 20a ed (sao paulo: saraiva, 2008), 188. 24 maria fernanda dias mergulhao, loc.cit. 25 trf 2 region. second class, ams 90.02.13999-3. rio de janeiro. judge luis alberto nogueira. 1992. the application of equity in brazilian court decisions during the covid-19 pandemic: are there any obstacles anna lucia berardinelli 204 common law system, where the court precedent is deemed a “law”, the opposite situation occurs. however, as márcio ribeiro borges teaches, the modern world does not allow us to think of two undisputable and foreign systems, since one of them is now clearly influenced by the other: however, this distinction entails the presence of two hermetic systems, foreign to each other and prone to mutual exchanges, as if there were a dichotomy, a mutual exclusion, with the use of an importing in the adhesion to a specific order that excludes the application of legal norms that are characteristic of the other system. ” in the same sense, the author quotes miguel reale, for whom both systems: “(...) these are diverse cultural expressions that, in recent years, have been the object of reciprocal influences. while legal norms gain more and more importance in the common law regime court precedents play an increasingly important role in the law that follows the romanistic tradition.”26 this connection between the two systems, which are continually improving, based on the lessons that they exchange with each other, has been the current stimulant. this event has also been noticed in the brazilian law, such as, for example, in the provisions brought by the updated version of brazilian code of civil procedure, which is in force since march 2016. it has a very different structure to its predecessor. this new code divided into the general part and the special part and ends with a book titled “final and temporary provisions.”27 the brazilian law is based on the roman-germanic system, and the prominent position of the law in the civil law system can be clearly seen in the current brazilian legal system, and provided literally in article 5 of brazilian constitution of 1988: “all are equal before the law, without distinction of any nature, guaranteeing to brazilians and foreigners residing in the country the inviolability of the right to life, freedom, equality, security and property, in the following terms: (...) ii no one will be obliged to do or fail to do anything except under the law; however, as márcio ribeiro teaches the brazilian legal world has long been influenced by countries that traditionally adopt common law, notably the united states, being certain, for example, that the political organization 26 miguel reale. lições preliminares de direito. 25.ed (são paulo: saraiva, 2000), 146. 27 teresa arruda alvim wambier and cassio scarpinella bueno, “civil justice in bazil,” brics law journal 3, no. 4 (2016): 10. udayana journal of law and culture vol. 4 no. 2, july 2020 205 of the brazilian state, since the proclamation of the republic, is firmly based on the north american, not only in the judiciary, but also in the legislative and executive branches.28 based on abundant legal doctrine, and countless examples already brought into the legislation, it is possible to conclude that the mixture carried out in the country has even resulted in a kind of hybridism between both models. therefore, contrary to what most of the doctrine advocates, a solution would be adopting a less tight view, in the search for the ideal of justice. this could represent an evolution to the brazilian legal system, as shown in the legal provision of article 4 of the licc on the application of equity in its integrative expression. 2.4. equity and covid-19 the current situation, unprecedented in recent history, has brought numerous challenges to courts worldwide, which will not find a just solution for the specific cases under examination if decisions are not based on the equity in its both forms: evaluative and integrative. the analysis of the current scenario allows us to conclude that the court decisions, during the covid-19 pandemic, should have a more pacifying nature, seeking the most equitable solutions to the specific case. this is already being accomplished in many civil cases, such as the ones asking for a revision of rentals, or reimbursement for airplane tickets or hotel reservations, payment of child support, and even requests for bankruptcy. in all those types of cases, and others, the decisions are being mitigated by equity, under the allegation of the extreme burden caused by the covid-19 pandemic. the imposition of an extraordinary burden on the parties is not reasonable at a time when everyone is excessively already burdened. this is the kind of sensibility required from judges when applying the rule of law. a decision that is not consistent with the current scenario, as frederico cortez explains in a recent article on the subject, would be on a “collision course with the principles of reasonableness and proportionality.” 29 the author deftly states that he does not advocate disobedience to the law, but a new justice in the light of this coronavirus pandemic. he further states: "a faster, less conflicting and more aligned court, in its broad sense." we fully agree with the aforementioned author, and also add that a broader view of the concept of equity, starting to see equity as a general principle of law, as provided for in article 4 of the licc, could guide the path of magistrates in this current obscure scenario. 28 márcio ribeiro borges and thais vandresen, “common law e o novo código de processo civil: teoria dos precedentes vinculantes e outras influencias,” anais do congresso catarinense de direito processual civil (2015) 29 frederico cortez, “a nova justiça com o covid-19.” focus.jor. 20 march 2020. the application of equity in brazilian court decisions during the covid-19 pandemic: are there any obstacles anna lucia berardinelli 206 2.5. some recent legal cases as the pandemic spreads throughout the country, causing shocking waves of death and poverty, brazilian courts are being flooded with lawsuits that require interpretations that go beyond of what the legislators could predict. the brazilian legislation 30 and the case-law, for example, clearly provides that the public electric companies have the regular right to interrupt the service in case of failure to pay the energy bills. this has been the norm in many decisions, such as the one transcribed below : “appeal. legal consumption relationship. electricity supply contract. service interruption based on debt. refusal to restore electricity based on past debt due to irregularities found through toi occurrence and inspection report. decision, declaring the financing contract null and void, eliminating the alleged debt in the amount of r$ 1,668.30. dismissal of the compensatory claim. (…) reviewing the sensitive elements collected during the procedural march, the plaintiff’s claim to attribute to the conduct of the defendant company an immeasurably severe range, which is not consistent with the scenario shown in the case file, showing its intention to overestimate the consequences arising from the facts described by the consumer. actually, the interruption of the provision of the service in question proved to be lawful, since the interruption was justified by the existence of a defaulted debt.” 31 more recently, in the face of the new reality brought by the pandemic and all the economic impact caused by it, this line of the decision would not be consistent with equity. until energy regulatory agency (aneel) published a resolution on the subject, judges faced a hard situation with those claims of suspension of electric service, since there is a small room for decisions based exclusively on equity in the brazilian legal system. however, after the issuance of aneel`s resolution 878/20, the case-law changed, and the courts started to ground the decisions that did not allow the suspension of the service on this new regulation. that was what happened in another recent case, when the president of the court of justice of the state of rio de janeiro, justice claudio de mello tavares, denied the request for reconsideration filed by light's (public electricity company), and upheld the decision to prohibit the concessionaire from interrupting the supply of electricity for non-payment during 90 days32: "although the interruption of the energy service is, in principle, a regular exercise of rights, the interruption of the supply of 30 for example article 2, iii, of resolution 878/20 from energy regulatory agency ( aneel) 31 tribunal de justiça do estado do rio de janeiro. appeal. 0448758-88.2010.8.19.0001. des. murilo andré kieling cardona pereira –trial, 2018. 32poder judiciario, estado do rio de janeiro, “presidente do tjrj nega recurso da light e mantém proibição de corte do fornecimento de energia elétrica pelo prazo de 90 dias,” notícia publicada por assessoria de imprensa em 14/04/2020. udayana journal of law and culture vol. 4 no. 2, july 2020 207 essential services must be avoided during the 90-day period, indicated both in aneel resolution and in state law no. 8.769 of 2020, in compliance with the constitutional principles of the intangibility of the dignity of the human person, and the guarantee to health and life, without prejudice to the adoption, by the concessionaire, of other measures provided for in law for the collection of likely debts. there is also another example from the same court, in the same sense: “(…) decision that denied the restoration of the supply of electricity in consumer unity. appeal to the author adducting that the suspension of the essential service complies with the state law number 8769/2020 and the normative resolution of aneel number 878/2020 that imposed the public service concessionaire the suspension of the charges and the duty of the ownership. electricity supply. with effect, present in the strength hypothesis the requirements elected in art. 300 of cpc/2015. state law number 8769/2020, when provisions on protection to the fluminense population during the contingency plan of covid-19, prohibited the suspension of essential services for lack of payment. (…) in the same sense, aneel normative resolution n. 878 edited. decision that deserves reform to determine that the defined concessionaire shall absence from suspending the service for non-paid bills in from january to march 2020, in addition to those which exceed while the contingency measures last. partial provision of the appeal. 33 thus, although the interruption of the energy service constitutes, in principle, a regular exercise of rights, the interruption of the supply of essential services must be avoided during the 90-day period. this is indicated both in aneel resolution and in state law no. 8.769 of 2020. all in compliance with the constitutional principles of the intangibility of the dignity of the human person and the guarantee to health and life, without prejudice to the adoption, by the concessionaire, of other measures provided for in law for the collection of debts. the above-mentioned cases show that brazilian courts are grounding their decisions on new regulations, contrary to the previous existing law. however, they are also basing their decisions on equity, and constitutional principles, to make sure that justice is being applied in the concrete case. this allows social justice and peace to be sustained during such a severe and unprecedented crisis. 33 tribunal de justiça do rio de janeiro tj-rj agravo de instrumento : ai 00189618620208190000 – inteiro teor, des (a). sandra santarém cardinali, trial, 2020. https://tj-rj.jusbrasil.com.br/jurisprudencia/849228552/agravo-de-instrumento-ai-189618620208190000 https://tj-rj.jusbrasil.com.br/jurisprudencia/849228552/agravo-de-instrumento-ai-189618620208190000 the application of equity in brazilian court decisions during the covid-19 pandemic: are there any obstacles anna lucia berardinelli 208 3. conclusion considering all the issues analysed from a brazilian law perspective, it can be concluded that equity is an essential tool for achieving a fair decision and the demands for the common good. through its application, the abstraction of the legal norm is eased, allowing the delivery of justice to meet the intentions of the disputing parties, putting an effective end to the dispute. of course, based on the perspective of the effectiveness of the jurisdictional provision, a fair and equitable decision is the most appropriate solution to the legal case brought before the court. the judges’ mission is tough and complicated, since, acting as a political agent of social pacification, in addition to the mastery in the knowledge of the litigious facts, as well as the corresponding legal framework to be applied, he must bear in mind the need to deliver the jurisdictional provision fairly and equitably, in order to achieve social justice. it seems that the legislator is unable to predict all the nuances of real life, with all the unpredictability of its concreteness. if any staunch positivist dares to doubt this, the current pandemic beats any stir. the judge is not, and should not be deemed, a machine devoid of evaluation capacity, and without any scope for adapting the law to the specific case. it is precisely on this margin that equity is required and expresses itself. therefore, considering the importance of equity, and its use by judges (mainly during this covid-19 pandemic) will lead to a higher quality legal service, which meets the real social concerns of justice. bibliography book aquino, santo tomás de. summa theologiae: cura fratrum eiusdem ordinis. matriti: biblioteca de autores cristianos, 1952. aristóteles. etica nicomachea. milano: bompiani, 2003. direito, carlos alberto menezes and sérgio cavalieri filho, comentários ao novo código civil. volume xiii (arts. 927 a 965), da responsabilidade civil, das preferências e privilégios creditórios. rio de janeiro: ed. forense, 2004. frança, r. limongi. hermeneutica jurídica. sao paulo: saraiva, 1988. fux, luis. curso de direito processual civil. rio de janeiro: forense, 2001. maximiliano, carlos. hermeneutica e aplicação do direito. rio de janeiro: forense. 2003. reale, miguel. lições preliminares de direito. 25.ed. são paulo: saraiva, 2000. rodrigues, silvio. responsabilidade civil. v. 4. 20a ed. sao paulo: saraiva, 2008. venosa, silvo de salvo. direito civil. sao paulo: atlas, 2001. journal article borges, márcio ribeiro and thais vandresen. “common law e o novo código de processo civil: teoria dos precedentes vinculantes e outras influencias.” anais do congresso catarinense de direito processual civil https://www.lexml.gov.br/urn/urn:lex:br:rede.virtual.bibliotecas:livro:2004;000692152 https://www.lexml.gov.br/urn/urn:lex:br:rede.virtual.bibliotecas:livro:2004;000692152 https://www.lexml.gov.br/urn/urn:lex:br:rede.virtual.bibliotecas:livro:2004;000692152 udayana journal of law and culture vol. 4 no. 2, july 2020 209 (2015) collins, kristin a. “a considerable surgical operation”: article iii, equity, and judge-made law in the federal courts.” duke law journal 60, no.2 (2010): 249-343. cohen-koplin, klaus. “equidade e razão prática na decisão judicial: algumas reflexes de teoria geral do direito e de história do pensamento juridico.” revista da faculdade de direito da ufrgs 28 (2011) debruche, anne-françoise. “what is "equity"? of comparative law, time travel and judicial cultures.” revue générale de droit 39, no.1 (2009): 203–228. https://doi.org/10.7202/1026985ar de freitas, lúcia gonçalves. “the stf decision on abortion of anencephalic fetus: a feminist discourse analysis.” alfa: revista de linguística (são josé do rio preto) 62, no.1 (2018):11-34 https://doi.org/10.1590/1981-5794-1804-1 gomes, lucas alves edmundo. “the influences of common law on the brazilian new code of civil procedure.” international journal of legal information 46, no. 3 (2018): 176180 https://doi.org/10.1017/jli.2018.39 rosevear, evan. “social rights interpretation in brazil and south africa (interpretação de direitos sociais no brasil e na áfrica do sul).” revista de investigações constitucionais 5, no. 3 (2018): 149-183 http://dx.doi.org/10.5380/rinc.v5i3.60968 wambier, teresa arruda alvim and cassio scarpinella bueno. “civil justice in bazil.” brics law journal 3, no. 4 (2016): 6-40. https://doi.org/10.21684/2412-2343-2016-3-4-6-40 legal documents brasil. constituição (1988). constituição da república federativa do brasil. brasil. decreto-lei no 4.657 de 4 de setembro de 1942. lei de introdução às normas do direito brasileiro. brasil. lei no 5.869 de 11 de janeiro de 1973. código de processo civil. brasil. lei no 10.406 de 10 de janeiro de 2002. código civil. brasil. lei no 13105/2015. novo código de processo civil. brasil. resolution 878/20, energy regulatory agency (aneel) case law/legal decisions associacao dos magistrados brasileiros. “coronavírus: confira as decisões do judiciário relacionadas ao enfrentamento da pandemia.” 2020. https://www.amb.com.br/coronavirus-confira-decisoes-do-judiciariorelacionadas-ao-enfrentamento-dapandemia/?doing_wp_cron=1587890248.6459550857543945312500 brazilian supreme court. re 111027, judging panel: 2nd panel rapporteur: justice djaci falcao, trial, 1986. brazilian supreme court. adpf 54 – opinion of justice carmem lúcia, poder judiciario, estado do rio de janeiro. “presidente do tjrj nega recurso da light e mantém proibição de corte do fornecimento de https://doi.org/10.7202/1026985ar https://doi.org/10.1590/1981-5794-1804-1 https://doi.org/10.1017/jli.2018.39 http://dx.doi.org/10.5380/rinc.v5i3.60968 https://doi.org/10.21684/2412-2343-2016-3-4-6-40 https://www.amb.com.br/coronavirus-confira-decisoes-do-judiciario-relacionadas-ao-enfrentamento-da-pandemia/?doing_wp_cron=1587890248.6459550857543945312500 https://www.amb.com.br/coronavirus-confira-decisoes-do-judiciario-relacionadas-ao-enfrentamento-da-pandemia/?doing_wp_cron=1587890248.6459550857543945312500 https://www.amb.com.br/coronavirus-confira-decisoes-do-judiciario-relacionadas-ao-enfrentamento-da-pandemia/?doing_wp_cron=1587890248.6459550857543945312500 the application of equity in brazilian court decisions during the covid-19 pandemic: are there any obstacles anna lucia berardinelli 210 energia elétrica pelo prazo de 90 dias.” notícia publicada por assessoria de imprensa em 14/04/2020 http://www.tjrj.jus.br/web/guest/home?p_p_id=com_liferay_portal_search_ web_portlet_searchportlet&p_p_lifecycle=0&p_p_state=maximized&p_p_ mode=view&_com_liferay_portal_search_web_portlet_searchportlet_mvc path=%2fview_content.jsp&_com_liferay_portal_search_web_portlet_se archportlet_assetentryid=7131895&_com_liferay_portal_search_web_po rtlet_searchportlet_type=content&inheritredirect=true re 271.286 agrrs, rapporteur justice celso de mello trf 2 region. second class, ams 90.02.13999-3. rio de janeiro. judge luis alberto nogueira. 1992. tribunal de justiça do estado do rio de janeiro. appeal. 044875888.2010.8.19.0001. des. murilo andré kieling cardona pereira –trial, 2018. https://www.jusbrasil.com.br/processos/93704262/processo-n-04487588820108190001-do-tjrj tribunal de justiça do rio de janeiro tj-rj agravo de instrumento : ai 00189618620208190000 – inteiro teor, des. sandra santarém cardinali, trial, 2020. https://tjrj.jusbrasil.com.br/jurisprudencia/849228552/agravo-de-instrumentoai-189618620208190000/inteiro-teor-849228565?ref=juris-tabs website content cortez, frederico. a nova justiça com o covid-19. focus.jor. 20 march 2020. https://www.focus.jor.br/a-nova-justica-com-o-covid-19-porfrederico-cortez/ mergulhao, maria fernanda dias. “o principio da equidade: por uma nova exegese.” gen jurídico, 21 july 2017. http://genjuridico.com.br/2017/07/21/o-principio-da-equidade-poruma-nova-exegese/ streck, lenio luiz and lúcio delfino. “novo cpc e a decisão por equidade: a canabalização do direito.” consultor jurídico, 29 december 2015. https://www.conjur.com.br/2015-dez-29/cpc-decisao-equidadecanabalizacao-direito http://www.tjrj.jus.br/web/guest/home?p_p_id=com_liferay_portal_search_web_portlet_searchportlet&p_p_lifecycle=0&p_p_state=maximized&p_p_mode=view&_com_liferay_portal_search_web_portlet_searchportlet_mvcpath=%2fview_content.jsp&_com_liferay_portal_search_w http://www.tjrj.jus.br/web/guest/home?p_p_id=com_liferay_portal_search_web_portlet_searchportlet&p_p_lifecycle=0&p_p_state=maximized&p_p_mode=view&_com_liferay_portal_search_web_portlet_searchportlet_mvcpath=%2fview_content.jsp&_com_liferay_portal_search_w http://www.tjrj.jus.br/web/guest/home?p_p_id=com_liferay_portal_search_web_portlet_searchportlet&p_p_lifecycle=0&p_p_state=maximized&p_p_mode=view&_com_liferay_portal_search_web_portlet_searchportlet_mvcpath=%2fview_content.jsp&_com_liferay_portal_search_w http://www.tjrj.jus.br/web/guest/home?p_p_id=com_liferay_portal_search_web_portlet_searchportlet&p_p_lifecycle=0&p_p_state=maximized&p_p_mode=view&_com_liferay_portal_search_web_portlet_searchportlet_mvcpath=%2fview_content.jsp&_com_liferay_portal_search_w http://www.tjrj.jus.br/web/guest/home?p_p_id=com_liferay_portal_search_web_portlet_searchportlet&p_p_lifecycle=0&p_p_state=maximized&p_p_mode=view&_com_liferay_portal_search_web_portlet_searchportlet_mvcpath=%2fview_content.jsp&_com_liferay_portal_search_w http://www.tjrj.jus.br/web/guest/home?p_p_id=com_liferay_portal_search_web_portlet_searchportlet&p_p_lifecycle=0&p_p_state=maximized&p_p_mode=view&_com_liferay_portal_search_web_portlet_searchportlet_mvcpath=%2fview_content.jsp&_com_liferay_portal_search_w https://www.jusbrasil.com.br/processos/93704262/processo-n-0448758-8820108190001-do-tjrj https://www.jusbrasil.com.br/processos/93704262/processo-n-0448758-8820108190001-do-tjrj https://tj-rj.jusbrasil.com.br/jurisprudencia/849228552/agravo-de-instrumento-ai-189618620208190000 https://tj-rj.jusbrasil.com.br/jurisprudencia/849228552/agravo-de-instrumento-ai-189618620208190000 https://tj-rj.jusbrasil.com.br/jurisprudencia/849228552/agravo-de-instrumento-ai-189618620208190000/inteiro-teor-849228565?ref=juris-tabs https://tj-rj.jusbrasil.com.br/jurisprudencia/849228552/agravo-de-instrumento-ai-189618620208190000/inteiro-teor-849228565?ref=juris-tabs https://tj-rj.jusbrasil.com.br/jurisprudencia/849228552/agravo-de-instrumento-ai-189618620208190000/inteiro-teor-849228565?ref=juris-tabs https://www.focus.jor.br/a-nova-justica-com-o-covid-19-por-frederico-cortez/ https://www.focus.jor.br/a-nova-justica-com-o-covid-19-por-frederico-cortez/ http://genjuridico.com.br/2017/07/21/o-principio-da-equidade-por-uma-nova-exegese/ http://genjuridico.com.br/2017/07/21/o-principio-da-equidade-por-uma-nova-exegese/ mailto:luciodelfino%40rbdpro.com.br https://www.conjur.com.br/2015-dez-29/cpc-decisao-equidade-canabalizacao-direito https://www.conjur.com.br/2015-dez-29/cpc-decisao-equidade-canabalizacao-direito e-issn 2549-0680 vol. 6, no. 2, july 2022, pp. 125-142 doi: https://doi.org/10.24843/ujlc.2022.v06.i02.p01 this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licenses/by/4.0/) 125 redemption of minority shares and related fair price determination in the finnish legal system otto elonen* faculty of law, university of helsinki, helsinki, finland abstract the finnish limited company act includes many situations where a redemption of a share is possible. however, this article focuses on examining situations where a redemption of a share results from a concentration of control in a company by a single party and analyze how the redemption price is determined. this is because the regulation in chapter 18 of the finnish limited company act on the redemption of shares on the basis of a concentration of control is unclear. finnish limited company act determines that the price to be paid out for redemption of a share must be “fair price”. therefore, the meaning of fair price becomes a central issue to be discussed. it identifies factors and specific reasons influence the formation of the fair price in some of the situations that may come in question. the subject is mainly approached from a legal perspective, but also from an economic theoretical point of view. this article also presents a number of different share valuation methods and how they should be used to determine the fair price. legal argumentation and interpretation are developed based on legislation, government proposals (draft of act), and case law, since they provide a framework for the valuation process. however, the final conclusion of the article suggests that there is no unambiguous answer as to what constitutes a fair price, as its determination depends on many variables. keywords: company; fair price; finnish limited company act; minority share; share redemption 1. introduction a share redemption generally refers to a situation where the redeemer takes the share by force.1 the osakeyhtiölaki, finnish limited liability company act (624/2006), hereinafter refered as ―lca‖, defines various situations in which a share redemption may become into question. such situations may arise when a limited company is either merged into another company or split into two or more companies. in both situations, shareholders must be given the opportunity to oppose the merger or division decision at the general meeting that decides on it and to demand the redemption of their shares or of the consideration for the division, as the case may be.2 the redemption of shares may also occur, for example, on the basis of a clause in the shareholders‘ agreement, or where a shareholder has ** email/corresponding author: otto.elonen@helsinki.fi and otto.elonen@gmail.com 1 ville pönkä. osakkeen lunastaminen: osakeyhtiöja sopimusoikeudellinen tutkimus. 1st edition (helsinki: talentum media, 2015), 89. 2 in a merger situation under chapter 16 of the lca, a shareholder may demand redemption of shares, while in a division situation under chapter 17 of the lca, a shareholder has the right to demand redemption of his or her division consideration, but despite the term ―has the right‖, it is about forceful redemption, since once the remeedor makes his or her claim, the redemption can not be avoided. redemption of minority shares and related fair price determination in the finnish legal system otto elonen 126 abused his or her influence.3 the lca provides for an ultimate remedy in case a shareholder abuses his/her powers intentionally that is contributing to a decision that violates the standard of equal treatment or otherwise breaches lca or the company‘s articles of association, then the shareholder may be imposed a duty of redemption, on the basis action brought by another shareholder.4 such mechanisms have been created to allow the shareholder to exit the company when a significant change occurs in the company which may affect the shareholder‘s position and influence in the company. the purpose of this article is to examine situations where a redemption is the result of a concentration of control in a company by a single party and analyze how the redemption price is determined. the research method applies to this article is legalistic. it explores redemption rules for the redemption of minority shares, since both the lca and the arvopaperimarkkinalaki, finnish securities markets act (746/2012), hereinafter refered as ―sma‖, together with the case law and the draft of the act, provide a framework albeit a somewhat imprecise one for the redemption of shares. however, as regards the determination of the redemption price itself, the law is unclear and the draft of the act5 does not address the question of the determination of the fair price, so that the determination of the redemption price in certain situations can be challenging, to say the least. this is illustrated by the fact that, according to pönkä, the determination of the fair price is ―cryptic‖.6 despite this article is approached by a legal point of view, it is therefore necessary to seek support for the fair value determination from a business perspective as well. furthermore, as regards the redemption of shares by means of a takeover bid within the meaning of the sma, it should be noted that the fair value is set at the price offered in the takeover bid, but that the law provides for the possibility of deviating from this price for specific reasons, and thus the way these reasons affect the formation of the fair price is an interesting subject to examine. the article is structured as follows: first, the standard basis for the redemption of shares as defined in the lca is discussed, followed by the standard basis for a takeover bid under the sma. it then moves on to analyze the issues related to the valuation of the redemption price and the actual questions that the essay seeks to answer. these are (a) what is meant by fair price in lca chapter 18:7 and (b) what factors influence the formation of the fair price as defined in lca 18:7 and (c) how specific reasons influence the formation of the fair price in lca 18:7.2-3 situations. academic concern on finnish company law generally discusses compliance 3 pönkä, op.cit., 98-102. 4 see klaus ilmonen and kauri marjamäki, ―corporate governance laws and regulations finland 2021-2022,‖ international comparative legal guide, 26 august 2021, https://iclg.com/practice-areas/corporate-governance-laws-and-regulations/finland 5 in addition to the legal provisions, the draft of the act (also refered as ―government‘s proposal‖) also contain the reasons behind the enactment of the law, which cannot be found in the law itself. 6 pönkä, op.cit., 254. https://iclg.com/practice-areas/corporate-governance-laws-and-regulations/finland udayana journal of law and culture vol. 6 no. 2, july 2022 127 and impact of law and regulation business entities,7 the lca, as the primary legal source in this article, has been elaborated on from various angles, among others, the influence of american corporate law on lca,8 the lca as a model of the capital doctrine in the european union (eu),9 and the regulation on private limited liability companies.10 the issue of minority share has also been widely studied by both economics and legal scholars from differs perspectives and interests.11 the topic of redemption share can be seen in some related contexts, for instance, on the issue of shareholder oppression.12 redemption of shares is not only regulated in the finnish legal system,13 as other countries‘ national legislation also covers the same concern that can be seen in some academic papers.14 besides finland, some eu countries such as austria, belgium, lithuania, and portugal also require additional conditions to be met for redemption – i.e. both illegal/abusive actions by other shareholders/the company, as well as other grounds for the exercise of the right, are applied.15 similarly, indonesian law recognizes a few situations in which share redemption may apply. each shareholder has the right to require the company to buy back the shareholder‘s shares at fair price if the shareholder concerned does not accept the company‘s actions which are detrimental to that shareholder or the company. such measures may relate, for example, to amendments to the articles of association, mergers, divisions or where the company assigns or secures assets worth more than 50% of the company‘s net assets.16 in the united kingdom, the 7 see for example helena sjögrén and pasi syrjä, ―regulation compliance in small finnish companies,‖ international journal of law and management 57, no. 6 (2015): 649, 654, 656. 8 see ville pönkä, ―the convergence of law: the finnish limited liability companies act as an example of the so-called ‗americanization‘ of european company law,‖ european company law 14, no. 1 (2017): 22-28. 9 mária patakyová and barbora grambličková, ―capital doctrine in the european union – a lesson to learn from finland?,‖ the lawyer quarterly: international journal for legal research 6, no.3 (2016): 137. 10 janne ruohonen, lassi salminen and veikko vahtera, ―governance and steering of mocs – legal perspective,‖ lex localis -journal of local self-government 19, no. 3 (2021): 714. 11 see for example emanuele teti and ilaria montefusco, ―corporate governance and ipo underpricing: evidence from the italian market,‖ journal of management and governance (2021): 5, 10, 26; filippo belloc, ―law, finance and innovation: the dark side of shareholder protection,‖ cambridge journal of economics 37, no. 4 (2013): 863–888; and corina burunciuc and halit gonenc, ―reforms protecting minority shareholders and firm performance: international evidence,‖ journal of risk and financial management 14, no.1 (2021). 12 gerard v. mantese and fatima m. bolyea, ―shareholder oppression litigation—a national perspective,‖ the michigan business law journal 40, no. 3 (2020): 41, 44. 13 timo kaisanlahti, ―minority shareholders in the finnish system of corporate governance‖ keskusteluaiheita, discussion papers no. 810 (2002): 51-52. 14 see for example the discussion on redemption of share in georgia in khatuna jinoria, ―main problems of protection of shareholder‘s rights in georgia,‖ european scientific journal 13, no. 31 (2017): 70-75; see also a study on the right to demand redemption (buy-out) of shares in the europan union in european commission, directorate-general for justice and consumers, ―study on minority shareholders protection: final report,‖ publications office, 2018: 39-44. 15 ibid., 44. 16 international finance group, ―indonesia corporate governance manual‖ second edition. jakarta, 2018, 103. redemption of minority shares and related fair price determination in the finnish legal system otto elonen 128 redeemed shares are treated as canceled and the amount of the company‘s issued share capital is reduced by the nominal value of the shares redeemed.17 in cyprus, the legal framework extends the versatility to the terms of redemption and as such, redemption may occur at the option of the issuing company; at the option of the shareholder; and on the occurrence of a particular event.18 2. result and analysis 2.1. the legal framework for the redemption of minority shares in finnish limited company act 2.1.1. share redemption on the basis of a concentration of control the redemption of minority shares on the basis of a concentration of control is legislated in the lca, chapter 18 of which sets the rules for the redemption of minority shares. pursuant to 18:1 lca: ―a shareholder with more than nine tenths (9/10) of all shares and votes in the company (redeemer) shall have the right to redeem the shares of the other shareholders at the fair price (right of squeeze-out). a shareholder whose shares may be redeemed (minority shareholder) shall have the corresponding right to demand that the shareholder‘s shares be redeemed (right of sell-out).‖ in the application of that norm, the shares and votes held by a corporation or foundation where the redeemer exercises control and the shares and votes held jointly by the redeemer or the corporation or foundation shall be deemed to be shareholdings of the redeemer. in addition, this norm determines that any voting restrictions based on law or the articles of association shall not be taken into account in the calculation of the votes of the redeemer. the shares and votes held by the company itself or by its subsidiaries shall not be taken into account in the calculation of the total numbers of shares and votes in the company. further, were there to be more than one redeemer in accordance with subsections (1)-(3), the shareholder who has the most immediate majority of shares and votes in the company, as referred to in this section, shall be deemed the redeemer. thus, lca 18:1.1 sets two quantitative requirements for the right of redemption to arise; the redeemer holds more than nine tenths of all the shares of the target company and the votes attached to the shares.19 therefore, both requirements must be fulfilled simultaneously, otherwise there is no right of redemption under lca 18:1. once the limit of 9/10 is exceeded, the majority shareholder has the right to redeem the shares held 17 neal watson and beliz mckenzie, ―shareholders‘ rights in private and public companies in the uk: overview,‖ https://uk.practicallaw.thomsonreuters.com/5-6133685?transitiontype=default&contextdata=(sc.default)&firstpage=true. 18 ioanna georgiou and demetris achilleos, ―the mechanism of redemption of shares under the cyprus companies law, cap. 113, ‖ https://www.lowtax.net/articles/the-mechanismof-redemption-of-shares-under-the-cyprus-companies-law-cap-113-596149.html 19 manne airaksinen, pekka pulkkinen and vesa rasinaho. osakeyhtiölaki ii. 3rd revised edition. (helsinki: alma talent oy, 2018), 593. https://uk.practicallaw.thomsonreuters.com/5-613-3685?transitiontype=default&contextdata=(sc.default)&firstpage=true https://uk.practicallaw.thomsonreuters.com/5-613-3685?transitiontype=default&contextdata=(sc.default)&firstpage=true https://www.mondaq.com/home/redirect/2109774?mode=author&article_id=1117270 https://www.mondaq.com/home/redirect/1422198?mode=author&article_id=1117270 https://www.lowtax.net/articles/the-mechanism-of-redemption-of-shares-under-the-cyprus-companies-law-cap-113-596149.html https://www.lowtax.net/articles/the-mechanism-of-redemption-of-shares-under-the-cyprus-companies-law-cap-113-596149.html udayana journal of law and culture vol. 6 no. 2, july 2022 129 by the other shareholders at a ―fair price‖. similarly, minority shareholders in such a situation have the right to demand redemption of their shares, but there is no compulsion to demand redemption on either side. instead, the majority shareholders are under an obligation to redeem the minority shares if the minority shareholder so requests and, conversely, the minority shareholder cannot object if the majority shareholder wishes to redeem the minority shares.20 for this reason, the redemption of minority shares may also be referred to as compulsory redemption, since redemption cannot be prevented if one party so requests.21 the redemption of a share on the basis of a concentration of control has a significant impact as part of the redemption procedures. the purpose of the regulation is to provide safeguards for both the majority shareholder and the minority shareholder.22 for example, minority shareholders may not have the means to influence the decisions of the majority shareholder when control increases, with the result that the ability to influence the shares becomes almost non-existent. on the other hand, for the majority shareholder, the purpose of the regulation is to enable him or her to take over the ownership of the company and thereby enable him or her to develop the company and use its assets without taking into account the opinions of the minority shareholder, thus contributing to economic efficiency.23 the regulation thus aims to normalize an imbalanced situation.24 in this context, it is probably worth pointing out that the redemption of minority shares is not only a product of the finnish legal system but is commonly used in western countries and is known as ―squeeze-out‖.25 often the assessment of the existence of the right to redeem is not a problem. however, the valuation of the redemption price often raises questions of interpretation, for example as to how the redemption price should be determined. for example, seppänen has described the nature of valuation as ―problem-solving and decision making in the face of uncertainty and incomplete information‖.26 in principle, the parties can agree between themselves on the redemption and its terms, without having to resort to an external procedure. however, when there is a dispute either about the existence of a right of redemption or about the amount of the redemption price, the arbitration procedure of lca 18:3, whereby the arbitrators are charged with resolving disputes concerning the right of redemption and the redemption price, is 20 pönkä, op.cit., 506. 21 hanna savolainen and jani saastamoinen ―oyl 18:7:n mukainen käypä hinta – tilastollinen analyysi noteeraamattomien yhtiöiden vähemmistöosakkeiden lunastushinnan määräytymisestä‖ lakimies 2 (2016): 250, see also the reasoning for the normet group arbitration award 2.9.2019, 112. 22 for example, the right to demand an extraordinary general meeting or the right to demand the distribution of minority dividends. 23 kko 2012:64, para 14. kko is an abbreviation of finnish supreme court. 24 savolainen and saastamoinen, op.cit., 250. 25 ville pönkä, ―osakkeen negatiivinen lunastushinta – arviointia ratkaisun kko 2020:99 valossa,” defensor legis, no. 4 (2021): 779. 26 harri seppänen, ―oyl 18 vähemmistöosakkeiden lunastushinta: käyvän hinnan käsitteen määritteleminen,‖ defensor legis, no.2 (2020): 200. redemption of minority shares and related fair price determination in the finnish legal system otto elonen 130 used. the purpose of the arbitration is to achieve a situation where the fair price of the share corresponds as closely as possible to the actual value of the shares so that the final result can be considered fair and equitable for all shareholders.27 2.1.2. mandatory and voluntary takeover dids under the securities market act the sma contains provisions for both voluntary and mandatory takeover bids. according to sma 11:24.1, in a voluntary takeover bid, the offer consideration may be paid either in cash, securities, or a combination of both. in addition, the offeror may voluntarily decide on the offer consideration, unless otherwise provided for in paragraphs 2 or 3 or sma 11:7. the mandatory takeover bid is governed by chapter 11 of the sma, section 19 of which provides that: ―a shareholder, whose proportion of voting rights increases to over 30 percent or to over 50 percent of the votes attaching to the shares of the offeree company (bid threshold) after the share of the offeree company has been admitted to trading on a regulated market (party obliged to launch a bid), shall launch a takeover bid for all other shares issued by the offeree company and for securities entitling thereto issued by the offeree company.‖ similarly, the amount of the offer in a mandatory takeover bid is regulated in sma 11:23, according to which the fair price is to be paid as offer consideration in a mandatory takeover bid. with regard to the sma, the act lays down more precise rules than the lca as to what is meant by the fair price, but derogations are still possible for specific reasons. at this point, it is necessary to make a practical distinction between the redemption of shares on the basis of a takeover bid and redemption of shares on the basis of an increase in control: in a mandatory (and voluntary) takeover bid, minority shareholders are under no obligation to accept the takeover bid, so there is no compulsory takeover.28 however, if a majority of minority shareholders accept the redeemer‘s takeover bid and the redeemer thereby acquires more than nine-tenths of the target company‘s shares and the votes they carry, the party rejects the takeover bid may then be subject to a compulsory takeover. although this article focuses on redemption from the perspective of the lca, the above-mentioned sections of the sma are relevant, as the redemption of minority shares under lca 18:1.1 is an event that often follows a takeover bid.29 27 ibid., 199-200. 28 finnish arbitration award silmäasema oyj, 23.6.2020, 102-103. 29 see gp 6/2006 vp, 7, according to which ―redemption often constitutes the last step in the takeover bid procedure.‖ gp is an abbreviation for government‘s proposal. udayana journal of law and culture vol. 6 no. 2, july 2022 131 2.2. applicable law for determining the redemption price of a share 2.2.1. basis for determining the redemption price the determination of the redemption price is governed by chapter 18 section 7 of the lca and can be seen as comprising provisions on the determination of the redemption price in three different situations. the rules for determining the redemption price combine the provisions of the lca and the sma30 and should therefore be treated in parallel. lca 18:7.1 contains a general provision on the amount of the redemption price31 and provides that the redemption price of a share should be determined on the basis of the fair market price prior to the commencement of arbitration proceedings. the problem with this provision is the interpretation of what is meant by the fair market price. according to the draft of the lca, the fair price should be determined on the basis of the market price of the share.32 the government‘s draft emphasizes that the fair price should be determined in this way, particularly in the case of publicly traded companies, but also in the case of other companies if the market price can be considered to have been reliably established.33 the problem of fair value determination often arises in the case of unlisted companies whose shares are not traded in a way that could establish a reliable, realistic market price for the share.34 lca 18:7.2 defines what is to be considered the fair price in a situation where the redemption has been preceded by a mandatory tender offer pursuant to sma 11:19, in which case the price offered in the mandatory tender offer is considered the fair price unless there is a special reason to the contrary. the law has thus left the possibility to deviate from the price offered in the mandatory takeover bid, but compliance with it is a strong starting point.35 lca 18:7.2 and the sma operate in parallel in practice, which can be illustrated by the following example: company a acquires 50% of the shares and the votes attached to them in listed company b and is thus obliged under sma to make a mandatory takeover bid for the remaining shares in company b. if, as a result of the takeover bid, a acquires control of more than 40% of the shares in b and the votes attached to them (i.e. in total a would own more than 90% of the shares and votes), a would also have the possibility to redeem the remaining shares in b on the basis of lca 18:1.1. in such a case, the fair price would be based on the price offered in the mandatory takeover bid pursuant to lca 18:7.2, unless there are reasons to the contrary. 30 for example, olli paavola, ―lunastushinnan määrittäminen ja osingonjaon merkitys julkisen ostotarjouksen jälkeisessä vähemmistöosakkeen lunastusmenettelyssä” (master thesis, faculty of law, university of lapland, 2021), 36. 31 pönkä, op.cit., 642. 32 government‘s proposal 109/2005 vp, 173, where reference is made to kko 1993:31. 33 ibid. 34 hanna savolainen, ―oyl 18:7 mukaisen käyvän hinnan määrittäminen noteeraamattomissa yhtiöissä,‖ edilex 33 (2016): 2. 35 airaksinen, pulkkinen and rasinaho, op.cit., 626. redemption of minority shares and related fair price determination in the finnish legal system otto elonen 132 lca 18:7.3 concerns the right and obligation to redeem arising from a voluntary takeover bid, and according to this, when the right and obligation to redeem has arisen in a voluntary public takeover bid pursuant to chapter 11 of the sma and the redeemer has acquired at least nine-tenths of the shares offered, the fair price shall be the price offered in the public takeover bid, unless there are special reasons to the contrary. in this case, the starting point is that the conditions for redemption of a share according to the lca have not been fulfilled initially, but as a result of the voluntary takeover bid: (1) the redeemer has acquired more than nine-tenths of the shares of the offeree company; and (2) the redeemer has acquired more than nine-tenths of the shares and the votes attached to them in respect of the shares subject to the takeover bid. 2.2.2 fair price according to finnish limited liability company act according to lca 18:7:1, the redemption price of the share must be valued at fair value. this is justified, first of all, because article 15 of the finnish constitution provides that everyone‘s property is protected and that the expropriation of property for compensation is expressly regulated by law. the right of redemption of the majority shareholder can be seen in this context as having a ‗coercive nature‘, encroaching on the property rights of the minority shareholder in a way that the minority shareholder cannot even influence in practice. there must therefore be serious grounds for such interference with fundamental rights. as regards the redemption of shares in public limited companies, it has been interpreted that the requirement of the principle of full compensation, which aims to ensure the preservation of the protection of property, is met when the redemption is valued by the usual valuation methods.36 since normal valuation methods are normally used to determine the fair value, it can then be considered as sufficient compensation for expropriation.37 in the government‘s draft of the lca, the fair market value is not defined in more detail, but its interpretation is based on the legal literature and practice that emerged during the period of the old limited companies act (734/1978). the draft to the lca states that it was not considered necessary to include in the proposal an express provision, that the arbitrators must take into account all the relevant factors in each individual case when determining the price,38 but this practice is still followed. in my opinion, this has been the right solution from a legislative point of view, as the determination of the fair price often consists of so many different factors that it would be impossible to lay down an unambiguous and precise law. another justification for the ―imprecision‖ of the law could be that, if it were possible to write the fair price determination precisely into law, it could then undermine the purpose of arbitration and all disputes would be resolved according to a certain guideline. it has therefore been justified to leave the 36 savolainen, op.cit., 6. 37 see e.g. finnish arbitration award normet group oy, op.cit., 112. 38 government‘s proposal 109/2005 vp, 173. udayana journal of law and culture vol. 6 no. 2, july 2022 133 provision of the law sufficiently open to allow the arbitral tribunal to take into account all the relevant factors in a particular case. according to lca 18:7.2, when the redemption of minority shares has been preceded by a mandatory takeover bid pursuant to sma 11:9, the fair price shall be the price offered in the takeover bid, unless there are special reasons to the contrary. this provision of the lca transposes the requirements of the takeover bids directive39 into finnish national law. for the redemption of shares following a mandatory takeover bid, the starting point for determining the fair price is sma 11:23.2, according to which the fair price is the highest price paid by the offeror for the securities subject to the bid during the six months preceding the obligation to make a bid. according to sma 11:23.3, if the offeror has not traded the securities offered during this period, the starting point for determining the fair price is the average of the prices paid for the securities offered in trading on a regulated market during the three months preceding the obligation to make an offer, weighted by the trading volumes. lca 18:7.3 contains a similar provision on the determination of the redemption price and when the right and obligation to redeem has arisen through a voluntary takeover bid, the fair price is also the price offered in the takeover bid, unless there are specific reasons for the contrary. with regard to the offer price of a voluntary takeover bid, the sma only provides for a takeover bid in situations where the takeover bid is made for all shares issued by the offeree company and the securities issued by the offeree company to which they are entitled. in such cases, the offer consideration is, in principle, the highest price paid by the offeror during the six months preceding the announcement of the takeover bid. however, an exception may be made for specific reasons. 2.2.3. specific reason for deviation from the offer consideration price the special reason for deviating from the fair price as defined in lca 18:7.2-3 only applies in situations where the tender offer of sma has led to a redemption situation of minority shares under chapter 18 of lca. this is because the fair value of the redemption right resulting from ordinary transactions does not yet exist at this stage, as it has not been determined. this means that the fair value of lca 18:7.2-3 is, in principle, determined based on the sma. the provision to consider the price offered in a mandatory takeover bid as the fair price has become a rather strong principle in arbitration practice, as specific reasons for deviation has only been at issue in two arbitration awards during the 2006 lca,40 so it can be 39 directive 2004/25/ec of the european parliament and of the council of 21 april 2004 on takeover bids, art. 15. 40 pönkä, op.cit., 690-691; see also finnish arbitration award salcomp oyj 2.3.2012, where more than three years had passed from the date of the tender offer to the date of the initiation of the arbitration and the market conditions at that time differed substantially from the conditions at the time of the initiation of the arbitration and finnish arbitration award birka line abp 27.1.2009, where the redeemer had made two voluntary public tender offers with different contents. in both cases, the arbitral tribunal considered that there were specific reasons to deviate from the fair price assumption. redemption of minority shares and related fair price determination in the finnish legal system otto elonen 134 argued that the price offered in a takeover bid often constitutes the fair price and that there is a high threshold for deviating from this based on specific reasons. it can therefore reasonably be argued that there is no clear legal guidance on the special reason in the case law and that the interpretation will remain largely at the discretion of the arbitrators in the future. the government‘s proposal for the lca does not directly mention what is meant by special reasons. however, in assessing the existence of special reasons, attention should be paid to at least two issues:41 firstly, a special reason for derogation may arise when a long period has elapsed between the launch of the takeover bid and the start of the redemption procedure. the longer the time between these two events, the less importance can be attached to the price of the takeover bid.42 the reasoning behind this is that the share‘s price may undergo major changes between these two events so that the price of the takeover bid does not reflect the current value of the share.43 the takeover bids directive has considered such a period to be three months from the execution of the takeover bid to the redemption request, but the lca does not include such a time limit.44 second, the number of shareholders who have accepted the takeover bid is also relevant. the more shareholders who have accepted the takeover bid, the more it indicates that the offer price has been proportionate and thus indicative of the fair price.45 there are no specific rules on what constitutes a sufficient number. in general, it has been held in case law that an acceptable number is an amount by which the redeemer has acquired through a takeover bid more than 50% of the shares subject to the takeover bid.46 specific reasons for deviating from the fair value may also arise under the sma and may also apply albeit exceptionally when there has been a specific change in the stock market or in the underlying company that has affected the development of the stock exchange price. in addition, a special reason may also be present if the takeover bid violated the principle of equality by paying a special benefit to the shareholder of the offeree 41 on the other hand, it is also possible that the issue is assessed on the basis of the coverage of the takeover bid, but this mainly applies to voluntary takeover bids, see paavola op.cit., 52-53. 42 government‘s proposal 109/2005 vp, 174; see also finnish arbitration award salcomp oyj 2.3.2012. 43 see e.g. essi rimali ―pörssiyhtiön vähemmistöosakkeen lunastushinnan määräytyminen – käyvän hinnan määrityksen yhtenäistymisestä osakeyhtiölaissa ja arvopaperimarkkinalaissa,” oikeustiede-jurisprudentia xl(2007): 258. 44 directive 2004/25/ec of the european parliament and of the council of 21 april 2004 on takeover bids, art. 15. 45 government‘s proposal 109/2005 vp, 174; see also airaksinen, pulkkinen and rasinaho, op.cit., 625-626 and jarmo parkkonen and mårten knuts. arvopaperimarkkinalaki. 5th revised edition (helsinki: talentum, 2014), 607. 46 rimali, op.cit., 260-261; juha jokinen, ―osakeyhtiön vähemmistöosakkeenomistajien osakkeen lunastushinnan määrittäminen, erityiset syyt poiketa markkinahinnasta ja hinnanmuutoksen olennaisuus,‖ oikeustieto 2 (2009): 18-19. udayana journal of law and culture vol. 6 no. 2, july 2022 135 company or if the intention was to circumvent the six-month time limit in article 11:23.2 of sma.47 it is therefore justified to argue that there is no reason to derogate from the offer consideration where the bid has been correctly priced and has therefore led to sufficient acceptance by the shareholders and where the period between the end of the offer period and the redemption procedure has not been longer than a negligible period.48 this has also been stated in the arbitration award silmäasema oyj, where the arbitral tribunal found that when the time between the procedures was short and the acceptance rate of the takeover bid was high, those who did not accept the bid should not be compensated with a redemption price higher than the offer price.49 despite what has been said above, the price offered in a mandatory (or voluntary) bid cannot always be considered an exact price in determining the fair price, and the arbitrators must in any case assess the circumstances of the case if there are reasonable grounds to believe that the price offered as consideration for the bid does not reflect the fair price.50 in other words, the arbitral tribunal should first assess whether there are specific reasons to depart from the price assumption in the case at hand. if there are reasons to deviate from the price assumption in the case, the arbitral tribunal may determine the fair price based on lca 18:7.1. if there are no special reasons to deviate from the price assumption, the fair price should be set at the price offered in the bid.51 2.3. fair price pricing techniques 2.3.1. market price as noted above, the determination of the fair price is left rather open in the law and the solution to this must be sought through different valuation methods. the starting point for determining the fair price is that the fair price should correspond to the market price of the share and its primacy has been considered a rather strong principle in the legal literature.52 it has been argued, for example, that when the redemption price is based on a neutral market price, such a value is then a fair and equitable representation by all unrelated parties of the actual price level of the shares to be redeemed. this is a valid argument since once the shares have been sufficiently traded, a price based on actual transactions is then considered the most reliable alternative to other valuation methods that are based on more or less subjective calculations and estimates.53 the market price thus serves as an objective measure, supporting the parties‘ perception of the fair 47 parkkonen and knuts, op.cit., 607. 48 pönkä, op.cit., 700-701. also, it is worth mentioning that it is still unclear what is the exact period of time that is considered to meet this criterion. 49 finnish arbitration award silmäasema oyj, op.cit., 106. 50 pönkä, op.cit., 691. 51 finnish arbitration award silmäasema oyj, op.cit., 103. 52 jukka mähönen and seppo villa. osakeyhtiö ii: pääomarakenne ja rahoitus. 4th revised edition. (helsinki: alma talent oy, 2020), 871. 53 savolainen and saastamoinen, op.cit., 266. redemption of minority shares and related fair price determination in the finnish legal system otto elonen 136 price. in this way, no party is unduly favored, as the redemption process takes into account the interests of both the majority and the minority in a balanced way, thus also ensuring the principle of economic equality.54 the primacy of the market price as a valuation tool is also reflected in the fact that it is irrelevant whether the company is listed or unlisted.55 what matters is whether the market price can be considered to have been reliably established.56 in this context, attention can be paid, for example, to the number of transactions that have taken place. the market price is thus determined based on past transactions in the shares of the target company.57 if the market price cannot be established based on the transactions that have taken place, it is necessary to resort to various methods of comparison, comparing the target company with similar companies and their financial data. the comparative methods are largely unsuitable for unlisted companies due to the fact that comparators similar to the target company are not always available58 and the use of comparative methods in arbitration proceedings has been limited.59 in contrast, listed companies have greater use of benchmarking methods, as the value can be determined by comparison with listed companies or by acquisition-based methods.60 however, it is unclear how to calculate a market price for an unlisted company based on market transactions, as shares in such a company are rarely the subject of transactions that could constitute a realistic market price.61 according to pönkä, particularly, in the case of thinly held closed companies, the arbitral tribunal has often concluded that no market price could have been established for the shares of the target company.62 however, a market price can be established based on even minor transactions. for example, case law has stated that in an unlisted company, the market price of a share may be determined on the basis of a single transaction if a large number of shares are sold at once.63 arbitral tribunals have held that an annual turnover of more than 20% is a sufficient threshold for a reliable market price.64 the situation is often clearer when it comes to determining the market price of shares in listed companies, which are publicly traded. however, this does not mean that the price determination is completely one-sided. in general, the market price is the stock exchange price at the time the redemption request is made, but other factors may also influence the 54 arbitration award normet group oy, op.cit., 113; savolainen, op.cit., 9. 55 mähönen and villa, op.cit., 871-873. 56 ibid., 871. 57 savolainen, op.cit., 8-9. 58 ibid. 59 pönkä, op.cit., 665. 60 ibid. 61 savolainen, op.cit., 2. 62 pönkä, op.cit., 662. 63 kko 1993:31. 64 mähönen and villa, op.cit., 873, where the authors refer to the arbitration award merita oyj, 19.4.2000, 31. udayana journal of law and culture vol. 6 no. 2, july 2022 137 market price.65 it has been observed in the legal literature that the stock exchange price does not always reliably reflect the market price in cases where there has been little trading in the share and the price formation is therefore unreliable. in such cases, when assessing the market price, attention can be focused on looking at the stock market price over a longer period and assessing its evolution. on the other hand, the unreliability is also underlined by the fact that the stock exchange can undergo major changes daily.66 in the case of listed companies, it should also be noted that a takeover bid often precedes the redemption of minority shares, in which case the fair price can be determined directly based on lca 18:7.2-3 rather than relying on lca 18:7.1, and the market price need not be determined as such but is the price offered in the takeover bid. 2.3.2. yield value however, it is not always possible to determine the market price. in such cases, other methods of price determination are used, in which case the fair value of the share can be determined, for example, based on the earnings or net asset value. these valuation methods, which differ from the market price, are secondary valuation methods that provide additional support.67 using secondary valuation techniques, the fair value of a share is calculated by first determining the value of the company and then dividing the value by the number of shares. the difference between secondary valuation methods and market valuation is that they reflect what the company‘s assets consist of.68 instead, the market price reflects people‘s general perception of what a stock is worth, based on the supply and demand mechanism. the determination of the rate of return is based on a calculation of future cash flows69 and is, therefore, more appropriate to reflect the value of a going concern than the net asset value, i.e. it is based on future expectations.70 it has also been considered as an upper limit to the value of a share.71 however, there are several uncertainties associated with this valuation method. the first problem is that a company may have financial years in which its turnover and results differ significantly, and in which case the yield value cannot be calculated reliably. secondly, there may be issues such as that the company has just started its operations or that there have been significant changes in its structure. thirdly, it should be noted that there are many different ways of calculating the yield value, which can lead 65 ibid., 871-872. 66 ibid., 872, where the authors state that ―a one-day stock market price can generally be questioned on the basis of the fact that it is often based on more or less random values.‖ 67 ibid., 873. 68 harri seppänen. yrityksen arvonmääritys. 1st edition (helsinki: alma, 2017), 183. 69 savolainen, op.cit., 15. 70 veikko vahtera, ―kko 2020:99 – vähemmistöosakkeiden lunastus ja negatiivinen lunastushinta,‖ lakimies 3–4 (2021): 671; savolainen and saastamoinen, op.cit., 253. 71 pönkä, op.cit., 261-262. redemption of minority shares and related fair price determination in the finnish legal system otto elonen 138 to contradictory calculations.72 however, valuation, whether based on the rate of return or other valuation methods, always involves uncertainty: there would be several legitimate ‗right‘ solutions, but it would be impossible to give an unambiguous value. it is therefore acceptable that a decision is made between several reasonable alternatives, within a certain margin of uncertainty.73 the use of a yield value is mainly appropriate when the company is profitable or at least can be expected to be profitable in the future. in addition, in legal literature and arbitration practice, it has been considered in most cases to be the preferred valuation method over substantive value when the company is expected to continue its operations.74 2.3.3. substantive value the net asset value or substantive value is obtained by deducting the company‘s liabilities from its assets. however, the net asset value of a company cannot usually be used to determine the fair value of an operating company because it only takes into account the real assets of the company.75 the net asset value can be further divided into two subcategories, the net asset value of the operating company and the liquidation value. the first is where the assets of the target company consist mainly of property. this method of valuation is problematic in the sense that it would allow the company to be valued only in terms of tangible assets, without taking future prospects into account.76 this is problematic for a going concern because a company may often have, for example, significant customer relationships or an established brand that could have great potential for future development. on the one hand, asset valuation has the advantage of providing an accurate picture of the value of the company‘s assets at the time of the valuation, whereas income valuation is largely based on assumptions and calculated future prospects. net asset value, on the other hand, is considered to be the value that would be obtained if the company were to cease trading and its assets were sold and is therefore mainly suitable for use in the case of a company in liquidation. the net asset value is seen as the lower limit of the value of a share, so it effectively acts as the opposite of the return value in the ―price scale‖ of the share, between which the fair price should seek to be derived. it can be argued, that the use of such a scale is justified from both sides of the argument. the minority shareholder is likely to want to obtain the best possible redemption price for his or her share and, conversely, the redeemer is motivated to pay as little as possible for the share. 72 savolainen, op.cit., 16. it should be noted that the calculations provided by the parties may in any case differ considerably. 73 ibid. 74 see e.g. finnish arbitration award normet group oy, op.cit., 116. 75 savolainen, op.cit., 21. 76 ibid. udayana journal of law and culture vol. 6 no. 2, july 2022 139 it is also possible that the net asset value may exceed the income value in some cases.77 this may be because, for example, the company has a large number of fixed assets but has been making losses for a long time. in this case, the net asset value should outweigh the yield value,78 since the company would have at least this value if all its assets were liquidated. in such cases, the share‘s net asset value can also be used to determine the fair value of the operating company. another point to note about the valuation principles is that they are often used in parallel. for example, when determining the market price, aid can be sought on the basis of intrinsic or output values. moreover, the fair price assumption created by the bid price may be corrected in this way by combining and comparing the substance and yield values.79 this approach should ultimately produce the most justifiable solution. 3. conclusion the study first examined what is meant by the redemption of minority shares in chapter 18 of the lca and what is its normative basis. it also examined how the redemption price is determined and how the determination of the fair value of the redemption price depends on whether the redemption was preceded by a mandatory or voluntary offer under the sma or by a situation where the shares were acquired by ordinary transactions. thus, the article found a close link between the sma and the lca with regard to the redemption of minority shares. in addition to that, it can be concluded that the determination of the fair price of the redemption price depends on the event preceding the redemption; if it is based on a concentration of control and a provision of more than 9/10 of the shares and votes, the fair price according to lca 18:1.1 should be determined primarily based on the market price, regardless of whether the company is unlisted or listed. if a reliable market price cannot be determined, support must then be sought from secondary valuation methods, such as yield value, substantive value, and a combination of these. if, on the other hand, a redemption situation has been reached as a result of a mandatory or voluntary takeover bid within the meaning of the sma, lca 18:7(2) or (3) applies in principle, depending on the content of the takeover bid. in this case, the fair price is in principle the price offered in the takeover bid, but this may also be deviated from for special reasons and, in addition, valuation methods may be relevant if the fair price has to be adjusted. that said, the conclusion that can be drawn from the study is that there is no unambiguous answer as to what constitutes a fair price, as its determination depends on many variables, whether it is a listed company or an unlisted company. the current state of the law does provide a framework for deciding how a fair price should be determined, but it leaves much to be 77 pönkä, op.cit., 261-262; savolainen, op.cit., 22. 78 savolainen and saastamoinen, op.cit., 267. 79 rimali, op.cit., 256. redemption of minority shares and related fair price determination in the finnish legal system otto elonen 140 interpreted by the arbitral tribunal and possibly subsequent courts. the current situation is such that many different values can be derived for the fair price, all of which would be ―fair‖ in themselves. thus, the current regulation leaves an open field for the determination of the fair price, where different valuation methods should be used to find the fair price that is the ‗fairest‘ of all and thus does not give an unfair advantage to the redeemer or the minority shareholder being redeemed. acknowledgment this article reflects personal knowledge and opinion of the 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https://uk.practicallaw.thomsonreuters.com/5-613-3685?transitiontype=default&contextdata=(sc.default)&firstpage=true https://uk.practicallaw.thomsonreuters.com/5-613-3685?transitiontype=default&contextdata=(sc.default)&firstpage=true vol. 4, no. 2, july 2020, pp.171 -192 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3600 e-issn 2549-0680 171 after the trade dispute: is indonesian food sovereignty threatened? kadek sarna* doctoral program (s3) at the faculty of law, gadjah mada university, yogyakarta nurhasan ismail** department of agrarian law at the faculty of law, gadjah mada university, yogyakarta harry supriyono*** department of environmental law at the faculty of law, gadjah mada university, yogyakarta article received: 7th february 2020; accepted: 22nd july 2020; published: 30th july 2020 abstract the winning of new zealand and the united states in a trade dispute with indonesia regarding quantitative restrictions on the import of horticultural products, animals and animal products at the world trade organization (wto) dispute panel assembly with case number ds (dispute settlement) 477 and 478, forces indonesia to adjust its national policies with the existing rules in the 1994 gatt. this obviously becomes a concern for indonesia's goal of realizing national food security and food sovereignty. this article aims to discuss how indonesia's position in the case of ds 477 and ds 478 and how policy efforts in agriculture can be implemented so that indonesia can withstand the development of international trade liberalization. this article is normative legal research that applies case and statutory approaches. it discusses the legal position of indonesia when defending its reasons behind the restriction policies as well as analyses indonesia’s opportunities to create food sovereignty and proposing legitimate policies after the cases decided. this article concludes that despite indonesia was defeated in these cases, the opportunities for indonesian agricultural products to be internationally marketed are still available and that bilateral arrangement would enable indonesia to discuss the upcoming legitimate measures to be adopted. reflecting on the results of wto ds 477 and ds 478 cases, indonesia should propose a mutually agreed solution (mas) and improving the provisions on horticulture imports and imports of animal products, carry out intensification and extensification policy, combat food cartels, and pay concern on the creation and implementation of various international trade regulations. keywords: food sovereignty; trade dispute; indonesia; world trade organization. *email/corresponding author: sarna.kadek@gmail.com / kadek_sarna@unud.ac.id / kadek.sarna@ugm.ac.id ** email : nurhasan@mail.ugm.ac.id ***email: harry.supriyono@ugm.ac.id mailto:sarna.kadek@gmail.com%20/%20kadek_sarna@unud.ac.id%20/%20%20kadek.sarna@ugm.ac.id mailto:sarna.kadek@gmail.com%20/%20kadek_sarna@unud.ac.id%20/%20%20kadek.sarna@ugm.ac.id mailto:nurhasan@mail.ugm.ac.id mailto:harry.supriyono@ugm.ac.id after the trade dispute: is indonesian food sovereignty threatened? kadek sarna, nurhasan ismail, and harry supriyono 172 how to cite: sarna, kadek, nurhasan ismail and harry supriyono. “after the trade dispute: is indonesian food sovereignty threatened?”. udayana journal of law and culture 4, no. 2 (2020): 171–192. https://doi.org/10.24843/ujlc.2020.v04.i02.p03 doi: https://doi.org/10.24843/ujlc.2020.v04.i02.p03 1. introduction the indonesian constitution stipulates that one of the purposes of the state of the republic of indonesia is to promote public welfare.1 it means that the state has an important role in realizing welfare through the fulfillment of basic rights, one of which is the right to food as a fundamental human right for all citizens without exception. in the context of creating prosperity, agriculture has become an important sector, because the indonesian population mostly depends on this sector for their main livelihood. due to the strong relationship between the indonesian people and agricultural life, agriculture does not only have economic value but also social and religious values so that aside from being an archipelagic maritime country, indonesia is also known as the largest agricultural country. for more than a decade, the government paid more attention to the sector of agriculture and tends to achieve prosperity and food security. 2 up to now, the government is still dealing with the decreasing number of agricultural lands due to land conversion, the competitiveness of agricultural products, and other matters to be resolved. it indeed threatens food security. the government seems to do not have any other choice rather than to import some food products to secure their domestic needs. therefore, the national policy in controlling the functional shift of the agricultural land through the protection of sustainable agricultural land, and improvement of the quality and quantity of agriculture products are urgent to be applied. establishing food security and sovereignty through the protection of agricultural land is also an inseparable effort from reforming the current national agrarian policy. it has been conceptualized that agrarian reform is an absolute requirement to holistically restructuring the aspects of ownership, as well as aspects of land use and utilization,3 which should be synergized with efforts to revitalize agriculture sector. 1 the 1945 constitution of the republic of indonesia, preamble, para 4. 2 see for example the enactment of law no.41 of 2009 concerning the protection of sustainable agricultural land as well as several other laws and regulations such as law no.13 of 2010 concerning horticulture, law no.18 of 2012 concerning food, regulation of the minister of agriculture no.86/permentan/ot.140/8/2013 concerning the import recommendation of horticultural products, and other related regulations. 3 see article 2 of the decree of the people's consultative assembly of the republic of indonesia concerning agrarian reform and management of natural resources https://doi.org/10.24843/ujlc.2020.v04.i02.p03 udayana journal of law and culture vol. 4 no. 2, july 2020 173 the biggest challenge that facing indonesia today as a developing country to create food security and sovereignty, is a multiplier effect of world trade liberalization and globalization that occurred in the last few decades where liberalization of trade and investment has become a world trend so that the boundary between developed and developing countries have no effect anymore and have even influenced internal policies and political traditions of the state that are within them. reflecting on those developments, thomas l. friedman has given an illustration that the world is currently experiencing a struggle between realizing development and prosperity which is symbolized by the lexus and the desire to maintain an identity and tradition symbolized by olive trees. this parable also means that there is a conflict of values in globalization brought by the world trade liberalization regime, where the policies and political freedoms of a country who involved will be bound by global political interests.4 globalization and world trade liberalization are difficult to avoid. it always metamorphoses following human needs and desires as well as looks for loopholes in human systems. peter van den bossche said: “three reasons come to mind. first, new technology has created distribution channels, especially for services,…..will find very difficult to control. secondly, liberal international trade policies … firm institutional basis in the multilateral trading system of the wto,…...thirdly, the price to be paid,……withdrawing from the global economy would be very high.5 bossche’s description above implies that economic globalization which is synonymous with technological development is a difficult process to control while the liberal policy of international trade driven by the world trade organization (wto) has taken root in every multilateral trade relationship. besides, it explains huge costs are required to create prosperity when withdrawing from the development of the global economy. the current development of food globalization appears to be metamorphosed, following technological developments of the industry. the penetration of food products through marketing networks and efficient distribution has opened cross-border barriers to global trade. in indonesia, food globalization can be seen from the increased import of agricultural food products such as rice, fresh fruit, fresh vegetables from vietnam, thailand, the united states, new zealand, australia, and the peoples’ republic of china. hundreds of processed food products have also entered many hypermarkets and traditional markets. this is what later became one of the 4 see thomas l. friedman, the lexus and the olive tree: understanding globalization, 2nd edition (new york: first anchor books, 2000), 67-68. 5 peter van den bossche. the law and policy of the world trade organization: text, cases, and materials, 2nd edition (new york: cambridge university press, 2008), 5. after the trade dispute: is indonesian food sovereignty threatened? kadek sarna, nurhasan ismail, and harry supriyono 174 factors that made our food sovereignty disrupted and experienced challenges. budi widianarko said that globalization is always associated with the terms principles of liberalization and harmonization. food globalization as one of its sub-systems is also subject to these two principles, liberalization manifested in the form of market openness, in which western countries urge developing countries to follow and adopt free trade, including for agriculture and food, while the principle of harmonization is manifested in the form of uniformity quality and safety standards for food products that have been going on intensely. he mentioned one of the main clauses of the agreement on agriculture (agreement on agriculture-aoa) in the 1994 gatt framework or known as the agreement on sanitary and phytosanitary (the sps agreement) in the wto regime which stated "harmonization of sanitary and phytosanitary measures based on accepted and scientifically justifiable standards ". although the agreement is in the name of consumers all over the world, it still reflects the victory of the lobby of developed countries over developing countries because the principle of harmonization is often a barrier to exports of food products in developing countries because of gaps in know-how and equipment, in which products from developed countries are free to enter the markets developing country.6 the wto stimulates global free and fair trade. in performing its duties, it applies several principles that become binding rules for all members such as the principle of protection through tariffs, the national treatment principle, the most favored nations principle, the principle of reciprocity, and the principle of quantitative border restrictions. in practice, however, free trade does not completely free and fair. countries that are classified as developing and least-developed face some difficulties in competing developed countries.7 this often causes disputes between wto members, especially for developing countries over their actions or policies that seek to protect their domestic industries by minimizing the negative impact of imports, such as indonesia in the case of wto ds 477 and ds 478. in the wto cases ds 477 and ds 478, indonesia's food sovereignty experienced a shock where since 2012 there has been a trade dispute between indonesia, new zealand and the united states regarding restrictions on imports of horticultural products, animals and animal products, wherein 2014 the two countries (the us and new zealand) finally brought this dispute to the wto dispute panel. 6budi widianarko. globalisasi pangan “masih adalah peluang bagi pertanian indonesia” dalam revitalisasi pertanian dan dialog peradaban. (jakarta : kompas, 2006), 166-167. 7 m. ya’kub aiyub kadir, the world trade organization (wto) free trade within fair trade challenges, mimbar hukum 26, no.1(2014): 133. udayana journal of law and culture vol. 4 no. 2, july 2020 175 this article is normative legal research that applies case and statutory approaches. it discusses the legal position of indonesia regarding restrictions on imports of horticultural products, animals, and animal products on the case of ds 477 and ds 478. besides, it analyses indonesia’s opportunities to create food sovereignty and proposing legitimate policies after wto ds 477 and ds 478 cases to ensure international market availability for its agricultural products. 2. result and discussion/analysis 2.1. indonesia's position regarding restrictions on imports of horticultural products, animals and animal products in the wto ds477 and ds478 cases before discussing the case on the importation of agricultural products, animals and animal products which experienced by indonesia at the wto or known as the dispute settlement 477 (new zealand) and the dispute settlement 478 (united states), we need to consider a flashback on indonesia's membership in international trade agency from the era of gatt up to wto. based on the agreement establishing the world trade organization, membership in gatt can be carried out through 3 (three) methods which include: a) original member8, is the original membership as a party participating in the negotiations when negotiations are held to formulate gatt agreement; b) accession, is membership based on the provisions of gatt 1947 article xxxiii9; c) sponsorship (succession) is membership of a colony of a country which is an original member who then obtains his independence. indonesia entered into the gatt in 1950 through the sponsorship category based on the provisions of gatt 1947 article xxvi paragraph 5 (c) 10 , because as a condition to take the path (a) and (b) the prospective member country must first negotiate tariffs, whereas when gatt was ratified in 1947, indonesia as a newly born country and was still facing an upheaval of independence so factually did not participate in signing the "protocol of provisional application" (ppa) as a sign of the gatt enactment. furthermore, with the ratification of the wto agreement by indonesia into law number 7 of 1994 dated november 2, 1994, concerning ratification of the "agreement 8 the term original member is found in article xi of the wto agreement, and this term is used to distinguish between original members and new members. relating subject also see peter van den bossche, the law and policy of the world trade organization-text cases and materials, 2nd edition (new york: cambridge university press, 2008), 108 9 see article xxxiii of gatt. 10 see article xxvi paragraph 5 (c) of gatt. after the trade dispute: is indonesian food sovereignty threatened? kadek sarna, nurhasan ismail, and harry supriyono 176 establishing the world trade organization", indonesia's membership in the gatt-wto became legally binding on its national policies and legislation. on its development related to the doha development agenda (dda), the ministerial conference as the highest body in the wto, in 2001 held a round of negotiations with the aim is to form a multilateral trade system within a development dimension, where the main issues discussed covering agricultural issues, product market access non-agricultural market (name), trade in services, and regulation of the rules. ministerial conference is conducted every two years where decision making based on consensus by all member countries. the activities of decision making are carried out by the general council assisted by the subsidiary body including councils, committees, and sub-committees who have a task to implementing and supervise the implementation of wto agreements by its member countries. the issue of agriculture and agricultural product in wto are sometimes discussed through a series of negotiation especially related to the reduction in domestic subsidies and tariffs. indonesia and other developing countries pay serious attention to the agriculture issue as it is related to socio-economic aspects such as food security, livelihood security, and rural development, which they face at all times. on the contrary, developed countries see the provision of domestic subsidies from a political dimension in their agricultural policies such as market domination for economic purposes. various attempts have been made during the negotiation process, until a "suspension" was imposed in june 2006, which was then followed by full negotiations in early february 2007. in july 2008, ministerial-level negotiations were also conducted to jointly conclude agricultural modalities and namas, and using single-undertaking issues such as trade in services, intellectual property, development, and dispute resolution, but all of these efforts have not shown results as expected.11 during the wto 9th ministerial conference held in bali on 3-7 december 2013, the wto members agreed on "the bali package" that among others established the trade facilitation agreement which aims to facilitate the flow of goods at ports to in and out of the countries. the smooth flow of goods at the port will be able to support indonesia's efforts in increasing economic competitiveness and market access for indonesian export products. besides, the bali package (post bali work) also agreed on flexibility in the issue of public stockholding for food security that gives freedom to developing countries like indonesia, to providing subsidies to create the availability of cheap food for the whole citizens, without worrying 11 see more information on robert wolfe,“sprinting during a marathon: why the wto ministerial failed in july 2008,” journal of world trade 44, no. 1 (2010): 81-126 and yongshik lee, “international trade law post neoliberalism,” buffalo law review 68 no.2 (2020): 434-436 udayana journal of law and culture vol. 4 no. 2, july 2020 177 being sued in the wto dispute forum settlement body.12 in the post bali work, member countries were asked to arrange a doha development agenda (dda) settlement work program in 2014. with the completion of the dda negotiations, it is expected to benefit developing countries and the least developed countries (ldcs) 13 in integrating into the trading system multilateral. indonesia's position was then questioned in the international traffic of trade in horticultural products, animals and animal products. before the 9th ministerial conference held in bali on 3 7 december 2013 was held, indonesia has been in a trade dispute with the us and new zealand related to indonesian policies in horticultural products, animals and animal products with the existing policies in wto. indonesian ministry of trade has several times held consultative efforts with new zealand and the united states (us) and in february and september 2013. on one hand, new zealand and the us argued that indonesian policies were hampering access to their market and violate the wto provisions, but on the other hand, indonesia considers its policies have complied with the provisions in the wto. the existence of two different views and the absence of a solution that satisfies both parties, caused new zealand and the united states submitted a request for official consultation with indonesia through the wto dispute settlement body (hereinafter referred to as dsb) on may 8th 2014, which is known as ds no.477 (indonesia-new zealand) and ds no.478 (indonesiaus). this consultation was failed because of tejnew zealand and the united states objections to the adoption of indonesian policies that indicated contrary to article xi paragraph (1) gatt 1994 (elimination of general quantitative restrictions) and article 4 paragraph (2) of the agreement on agriculture (elimination of actions that should be changed is an ordinary customs duty). indonesia also indicated violates the national treatment obligations under article iii paragraph (4) gatt 1994 and the requirements for non-automatic import licensing based on article 3 paragraph (2) of the import licensing agreement. in the consultation submission up to the appeal of this case, there were 14 third parties supported new zealand and the us and had an interest in the subject matter, namely argentina, australia, brazil, canada, china, japan, south korea, european union, norway, taiwan, paraguay, india, singapore, and thailand. 12 kementrian luar negeri republik indonesia, daftar kerjasama multilateral world trade organization (wto), https://kemlu.go.id/portal/id/read/133/halaman_list_lainnya/ world-trade-organization-wto 13 see ldc identification criteria & indicators in the united nationsl department of economic and social affairs economic analysis, https://www.un.org/development/ desa/dpad/least-developed-country-category/ldc-criteria.html https://kemlu.go.id/portal/id/read/133/halaman_list_lainnya/%20world-trade-organization-wto https://kemlu.go.id/portal/id/read/133/halaman_list_lainnya/%20world-trade-organization-wto https://www.un.org/development/%20desa/dpad/least-developed-country-category/ldc-criteria.html https://www.un.org/development/%20desa/dpad/least-developed-country-category/ldc-criteria.html after the trade dispute: is indonesian food sovereignty threatened? kadek sarna, nurhasan ismail, and harry supriyono 178 after the consultation failed, the us and new zealand requested the panel agenda to dsb on 18 march 2015 and by the dsb, panel established in the centre william rappard, switzerland on 20 may 2015 with mr. harald neple (norway) as a chairman. several policies later became requests for submission of considerations by the united states and new zealand including import licensing for horticultural products, animals and animal products and, some prohibition measures regarding import requirements on the inadequacy of domestic production to meet domestic needs. upon the submission, indonesia then submitted a defense based on article xx of the gatt 1994, arguing that14: 1. these actions are needed to protect the legal requirements as public morals (article xx letter (a)), 2. maintaining human life or health by ensuring food security/food safety (article xx letter (b)), 3. indonesia needs to ensure compliance with customs laws (article xx (d)), 4. indonesia also seeks to protect its actions based on article xi paragraph 2 letter (c) (ii) of the 1994 gatt, which excludes the introduction of import restrictions designed to eliminate temporary surpluses such as domestic products. the panel found that all 18 (eighteen) actions in question are import restrictions or restrictions which indirectly have the effect of import restrictions within, therefore all those actions not in accordance with article xi paragraph (1) of gatt 1994. the panel rejects indonesia's defense based on article xx of the gatt 1994, because indonesia could not demonstrate that its actions are justified under these provisions, the 18 items of indonesian policy which actions in question referred to as follows15: on the horticultural products: 1. restrictions on the application window and validation period. the wto assesses the existence of article 13 regulation of the minister of agriculture no. 86 of 2013 related to the archiving process and riph time restrictions are considered to be very detrimental to importers because the time period is very short, other than that this rule is considered not to count the length of time the goods are sent; 2. periodic and permanent import terms; 3. requirements 80% of the realization needs; 14world trade organization, ds 477: indonesia — importation of horticultural products, animals and animal products, https://www.wto.org/english/tratop_e/dispu_e/ cases_e/ds477_e.htm 15rachmi hertanti, megawati. catatan akhir & awal tahun indonesia for global justice: catatan dari sengketa investasi & perdagangan internasional dari churchill mining hingga kasus impor di wto di era proteksionism (jakarta: indonesia for global justice, 2017), 5-6. https://www.wto.org/english/tratop_e/dispu_e/%20cases_e/ds477_e.htm https://www.wto.org/english/tratop_e/dispu_e/%20cases_e/ds477_e.htm udayana journal of law and culture vol. 4 no. 2, july 2020 179 4. requirements for the harvest period; 5. storage ownership and capacity requirements. the wto considers that the regulations made by indonesia related to storage ownership and capacity requirements will be detrimental to importers and contrary to article xi paragraph (1) of the 1994 gatt because the spending costs will be greater, besides that storage ownership will have an impact on storage capacity restriction. while the process of storing imported goods can be done through a rental system; 6. terms of use, sale and distribution of horticultural products; 7. reference prices for chili and fresh red base for consumption; 8. six months of harvest requirements; 9. import licensing regimes for horticultural products. on the animals and animal products: 10. import restrictions on certain animals and animal products, except in emergencies; 11. windows application limits and validity periods; 12. periodic and permanent import terms; 13. requirement of 80% of realized needs; 14. the use, sale and distribution of imported beef and offal; 15. domestic purchasing requirements for beef; 16. beef price reference; 17. import licensing regimes for animals and animal products; 18. adequacy of domestic production to meet domestic demand. in the panel report, circulated to members of the world trade organization (wto) on 22 december 2016, the panel made the following findings that the 18 items of indonesian policy which actions in question are not in accordance with the applicable wto regulations, namely16: a) the 1-18 policy: not in accordance with article xxi (1) gatt 1994; b) the 1 3 policy: not in accordance with article xxii (d) gatt 1994; c) the 4 policy: not in accordance with article xxii (b) gatt 1994; d) the 5-6 policy: incompatible with article xxii (a) (b) (c) gatt 1994; e) the 7-8 policy: not in accordance with article xxii(b) gatt 1994; f) the 9-12 policy: not in accordance with article xxii (a) (b) (d) gatt 1994; g) the 6, 14 and 15 policies: inconsistent with article ii (4) gatt 1994; h) the 1-11 policy: not in accordance with article 3.2 of the import license agreement. 16 world trade organization, indonesia importation of horticultural products, animals and animal products, https://www.wto.org/english/tratop_e/dispu_e/cases_e/ ds478_e.htm https://www.wto.org/english/tratop_e/dispu_e/cases_e/%20ds478_e.htm https://www.wto.org/english/tratop_e/dispu_e/cases_e/%20ds478_e.htm after the trade dispute: is indonesian food sovereignty threatened? kadek sarna, nurhasan ismail, and harry supriyono 180 based on the results of the wto dsb panel report, there are a number of indonesian laws and regulations that are declared or judged to be inconsistent with the existing wto rules, such as17: 1. law. number: 19 year of 2013 concerning farmer protection and empowerment. 2. law number: 18 year of 2012 concerning food. 3. law number: 13 year of 2010 concerning horticulture. 4. regulation of the minister of agriculture number: 86/permentan/ ot.140 /8/2013 concerning the import recommendation of horticultural products. 5. regulation of the minister of agriculture number: 139/ permentan / pd.410/12/2014 concerning import of carcasses, meats and/or processed products into the territory of the republic of indonesia. 6. regulation of the minister of agriculture number: 02/permentan/ pd.410/1/2015 concerning amendment to permentan no. 139/permentan/pd.410/12/2014 concerning import of carcasses, meats and/ or processed products into the territory of the republic of indonesia. 7. regulation of the minister of trade no.16/m-dag/per/4/2013 concerning provisions on the import of horticultural products. 8. regulation of the minister of trade no.47/m-dag/per/8/2013 concerning amendment to regulation of the minister of trade no.16/m-dag/per/4/2013 concerning provisions on the import of horticultural products. 9. regulation of the minister of trade no.46/m-dag/per/8/2013 concerning provisions on the import and export of animals and animal products. 10. regulation of the minister of trade no.57/m-dag/per/9/2013 concerning amendment to the regulation of the minister of trade no.46/m-dag/per/8/2013 concerning the provisions on the import and export of animals and animal products. the wto dsb panel stated that indonesia had acted inconsistently with article 11 paragraph (1) of the 1994 gatt, thereby eliminating or harming the benefits owned by the united states and new zealand from the gatt rules. the panel has also issued a recommendation for indonesia to immediately adjust some of its domestic policies to the 1994 gatt rules. based on this decision, indonesia on february 17, 2017, informed the dsb of its decision to appeal to the dsb on legal issues and certain legal interpretations in the panel report. in the later time on november 9, 2017 the appellate body reported the results of its examination to wto members, which was followed by a meeting on november 22, 2017. the dsb then 17 ibid. udayana journal of law and culture vol. 4 no. 2, july 2020 181 adopted the appellate body report and panel report, which subsequently decided to win new zealand and the united states over quantitative restrictions on imports of horticultural products, animals and animal products made by indonesia. as a sovereign country indonesia is free in determining its national policies and foreign trade, however as a member of the wto, besides being given the freedom to create and apply its own national legal procedures, indonesia must also automatically have to be consistent and binding with the provisions of the wto. based on the most favoured nation (mfn) principle on article i of the gatt, a trade policy must be implemented on a non-discriminatory basis. all member countries are bound to give other countries the same treatment in the implementation and import and export policies as well as those involving other costs. the same treatment must be carried out immediately and without conditions (immediately and unconditionally) on products originating from or submitted to all gatt members18. besides the mfn principle, the national treatment principle on article iii gatt also prohibits discriminatory regulations as a tool to protect the product domestic, including taxation and other levies. this principle also applies to all legislation, legal arrangements, and requirements that can affect the sale, purchase, distribution, or use of products on the domestic market and provide protection against protectionism as administrative or legislative measures or policies19. based on the two non-discriminatory principles (the most favoured nation and the national treatment principle) above, within dsb decision on november 22, 2017 whose win new zealand and the united states over indonesia’s quantitative restrictions on imports of horticultural products, animals and animal products, indonesia must immediately comply and adjust its national policies to the gatt rules within the stipulated period. if it is not indonesia must provide compensation to new zealand and the united states, the amount of which is mutually agreed upon. if an agreement is still not reached on the form or amount of compensation, then new zealand and the united states can request the wto dsb to propose retaliation or countermeasures against indonesia. wto dsb decision which consisting rulings and recommendations are legally binding and raise an obligation to the parties in the dispute based on international law20. indonesia's defeat, in this case, will have an impact on its national food policy and the alignment of indonesia's food policy with the 1994 gatt 18 huala adolf. hukum perdagangan internasional. (jakarta: raja grafindo persada, 2005), 108. 19 nurhani fithriah, “penerapan prinsip non-diskriminatif dan national treatment oleh indonesia dalam rangka mea berdasarkan undang-undang nomor 25 tahun 2007 tentang penanaman modal,” university of bengkulu law jurnal 1, no. 1 (2017): 81-82. 20john h. jackson,“international status of wto dispute settlement reports: obligation to comply or option to buy out?,” american journal of international law 98, no.1 (2004):109. after the trade dispute: is indonesian food sovereignty threatened? kadek sarna, nurhasan ismail, and harry supriyono 182 rules will directly contradict the spirit of food sovereignty which is currently being fought by indonesia. on the appeal decision, on 15 december 2017, indonesia confirmed the dsb (dispute settlement body) that a reasonable time was needed to comply with the dsb recommendations and regulations bearing in mind the 45 (forty-five) days deadline stipulated in article 21 paragraph (3) letter b understanding on rules and the governing the settlement of disputes (dsu) procedure end on 6 january 2018. based on considerations at the ministerial conference in buenos aires and the closing of the wto year-end, on 11 january 2018, indonesia, new zealand, and the united states notified the dsb that to provide sufficient time for them to discuss the mutually agreed period and they have agreed that the deadline for arbitration is based on article 21 paragraph (3) letter c of the dsu21. in recent development indicates that indonesia has issued the ministry of agriculture regulation no. 2 of 2020, which amends the previous regulation no. 39 of 2019 concerning recommendations for importation of horticultural products and to ensure the harmonization of the amended regulation, indonesia is currently in the process of amending the ministry of trade regulation no. 44 of 2019.22 2.2. indonesia's opportunities in creating food sovereignty after wto ds 477 and ds 478 cases before discussing indonesia's possibilities to achieve food sovereignty, its concept seems to need to be clarified. the term food sovereignty upcoming first in april 1996, on the second international conference in tlaxcala, mexico, by the activist group la via campesina and subsequently brought at the civil society conference held in conjunction with the world food summit in rome in 1996.23 the term food sovereignty was defined as follow: 24 food security cannot be achieved without taking full account of those who produce food. ….. food sovereignty is the right of each nation to maintain and develop its own capacity to produce …... we have the right to produce our own food in our own territory. food sovereignty is a pre-condition to genuine food security. the position of the organization and statement presented food sovereignty as stated is an anti-colonial critique of the foreign domination of states by the 21see article 21 paragraph (3) letter c of the gatt dispute settlement understanding. 22 world trade organization, status report regarding implementation of the dsb recommendations and rulings by indonesiaaddendum, no. wt/ds477/21/add.14 and no.wt/ds478/22/add.14, indonesia – importation of horticultural products, animals and animal products, dated 23 march 2020. 23 gbadebo odularu, emmanuel tambi, adebayo aromolaran, bola oyeleye. food sovereignty and food security: where does africa stand?, (accra, ghana: forum for agricultural research in africa/fara, 2014), 10. 24 marc edelman, food sovereignty: forgotten genealogies and future regulatory challenges, the journal of peasant studies 41, no.6 (2014): 959-978 udayana journal of law and culture vol. 4 no. 2, july 2020 183 international trade rules of the world trade organisation wto as well as the neoliberal credit conditions imposed by the world bank and the international monetary fund.25 towards a food sovereignty action agenda from the nyéléni forum for food sovereignty, 23rd 27th february 2007, sélingué, mali, described food sovereignty as follows:  the right of individuals, peoples, communities and countries to define their own agricultural, labour, fishing, food, land and water management policies, which are ecologically, socially, economically and culturally appropriate to their unique circumstances;  the true right to food and to produce food, which means that everyone has the right to safe, nutritious and culturally appropriate food and to food-producing resources and the ability to sustain themselves and their societies;  the right to protect and regulate domestic production and trade and prevent the dumping of food products and unnecessary food aid in domestic markets;  self-reliance in food to the extent desired;  managing the use of, the rights to and control over natural resources – land, waters, seeds, livestock breeds and wider agricultural biodiversity unrestricted by intellectual property rights and without gmos;  based on and supportive of ecologically sustainable production and harvesting, principally agroecological production and artisanal fisheries26. in the nyéléni declaration, those descriptions above become the concept in the establishment of six pillars for food sovereignty, that focuses on food for people, values food providers, localizes food systems, puts control locally, builds knowledge and skills, and food sovereignty that works with nature.27 in furtherance of food sovereignty, various social movements, ngos, including via campesina coalesced and become a central point of the food sovereignty movement which formed as the international planning committee for food sovereignty. seeking the possibilities in creating food sovereignty based on the wto ds 477 and ds 478 case, indonesia should be able to predict the legal standing and the legal possibilities that might occur, so that indonesia can find other alternatives over the existing wto mechanism. this is based on the consideration that in the development of the case can be seen that none 25 food sovereignty report topic, https://www.globalagriculture.org/report-topics/food sovereignty.html 26 towards a food sovereignty action agenda from the nyéléni forum for food sovereignty, 23rd 27th february 2007, sélingué, mali, https://www.nyeleni.org/img /pdf/towards_a_food_sovereignty_action_agendaii.pdf 27 declaration of nyéléni 27 february 2007 nyéléni village, sélingué, mali, https://nyeleni.org/img/pdf/declnyeleni-en.pdf https://www.globalagriculture.org/report-topics/food%20sovereignty.html https://www.globalagriculture.org/report-topics/food%20sovereignty.html https://www.nyeleni.org/img%20/pdf/towards_a_food_sovereignty_action_agendaii.pdf https://www.nyeleni.org/img%20/pdf/towards_a_food_sovereignty_action_agendaii.pdf https://nyeleni.org/img/pdf/declnyeleni-en.pdf after the trade dispute: is indonesian food sovereignty threatened? kadek sarna, nurhasan ismail, and harry supriyono 184 of the 18 (eighteen) actions that were questioned by the united states and new zealand confirmed or justified indonesia's actions so that the consequences of indonesia's legal position in winning the case were very low, and as previously predicted that the results of the panel board decision on 22 december 2016 and the decision of the appellate body on 22 november 2017 have ruled that indonesia was defeated by the lawsuit of new zealand and the united states. from the development of the wto ds 477 and ds 478 cases during the panel and appeal, indonesia has made efforts to maintain the policy that has been made by arguing that indonesia is a developing country that is currently trying to develop agriculture and create food security in their country, indonesia has also proposed an evidence to counter us and new zealand suspicions that indonesian import regulations have not limited the number of horticultural imports, animals and animal products from new zealand and america. in this cases, indonesia was arguing has never restricted imports of agricultural products, animals and animal products from new zealand, us and the other country as long as it does not conflict with the provisions of the minister of trade regulation no.16/mdag/per/4/2013 concerning provisions on the import of horticultural products and regulation of the minister of trade no.46/mdag/per/8/2013 concerning provisions on the import and export of animals and animal products. arguments submitted by indonesia which bringing the global issue of food sovereignty have not been so convincing both the panel and the appellate body as they finally decided in favour of new zealand and the united states. on one hand, if indonesia enforces the wto ds 477 and ds 478 decisions, indonesia must liberalize provisions on the import of horticulture, animals, and animal products. on the other hand, if it will be implemented without restrictions, it can directly harm small-scale farmers and breeders, farmers' exchange rates will decline because they have difficulty competing and of course the welfare of the wider community will be at stake. currently, because there is an agreement with the united states that based on the provisions of article 21 paragraph (3) letter c of the dsu, indonesia has a grace period to make adjustments to its horticultural, animal and animal product trading policies. based on the agreement that the first phase of adjusting indonesia's policy is carried out no later than 22 july 2018 and for the second phase carried out on 22 june 201928. although bilateral consultations were carried out and adjustment steps have also been taken by the government of indonesia, in a stakeholder consultation that took place on 27 july 2018 in geneva, the 28 detik, begini kronologi gugatan trump rp 5 t ke ri , https://finance.detik.com/ berita-ekonomi-bisnis/d-4155699/begini-kronologi-gugatan-trump-rp-5-t-ke-ri https://finance.detik.com/%20berita-ekonomi-bisnis/d-4155699/begini-kronologi-gugatan-trump-rp-5-t-ke-ri https://finance.detik.com/%20berita-ekonomi-bisnis/d-4155699/begini-kronologi-gugatan-trump-rp-5-t-ke-ri udayana journal of law and culture vol. 4 no. 2, july 2020 185 united states stated that indonesia had not made enough adjustments. the us then submitted retaliation pursuant to article 22 paragraph (2) of the wto dispute settlement understanding to secure its right to delay granting tariff concessions to indonesia if indonesia truly fails to implement the wto dispute settlement agency's recommendations 29 . the value of retaliation proposed by the united states is usd 350 million or equivalent to rp 5 trillion, while new zealand calculates nzd 1 billion or equivalent to rp 9 trillion which will be imposed annually until indonesia can adjust its actions to wto provisions. to implement the wto decision, in 2020 indonesia will push for changes to 4 laws which include law no.18 of 2009 concerning animal husbandry and animal health, law no.13 of 2010 concerning horticulture, law no.18 of 2012 concerning food, and law no. 19 of 2013 concerning protection and empowerment of farmers30. however, to be able to discuss bilaterally what might be done to avoid retaliation while reducing the demands of the plaintiffs, indonesia also needs to try to propose a mutually agreed solution (mas) strategy while improving the provisions on the import of horticulture and animal product imports and of course it needs to be accompanied by other concessions in the food sector or with other product concessions. reflecting on the results of the appellate body's decision on the wto ds 477 and 478 cases, we can see that the position of developing countries like indonesia in defending themselves against the effects of free trade is very vulnerable. it is quite obvious that economic and social problems are still become the greatest challenge in realizing equality and prosperity in developing countries. before the wto ds 477 and ds 478 case, indonesia also has experience in a similar case to the united states namely the wto ds 406.31 indonesia believes that the us issued a policy that harms indonesia by issuing policies that prohibit the circulation of aromatic cigarettes, including clove cigarettes, but excluding menthol-flavored cigarettes. in this regard, indonesia claims that the us has doing discrimination against trade and violates wto regulations. indonesia won the case, but the united states did not want to change its tobacco law, so indonesia asked for authorization from the wto arbitration to conduct a retaliation of us $ 55 million32. from this experience also indonesia should have learned that the wto mechanism has weaknesses where a lengthy and costly process is 29 ibid. 30kumparan, ri terancam sanksi dari wto, mentan dorong revisi 4 undang-undang, https://kumparan.com/kumparanbisnis/ri-terancam-sanksi-dari-wto-mentan-dorongrevisi-4-undang-undang-1shganhvppy 31 world trade organization, dispute settlement body, ds406: united states — measures affecting the production and sale of clove cigarettes 32kompas, ri dan as akhiri sengketa dagang rokok kretek, http://bisniskeuangan. kompas.com/read/2014/10/07/154801926/ri.dan.as.akhiri.sengketa.dagang.rokok.kre tek https://kumparan.com/kumparanbisnis/ri-terancam-sanksi-dari-wto-mentan-dorong-revisi-4-undang-undang-1shganhvppy https://kumparan.com/kumparanbisnis/ri-terancam-sanksi-dari-wto-mentan-dorong-revisi-4-undang-undang-1shganhvppy after the trade dispute: is indonesian food sovereignty threatened? kadek sarna, nurhasan ismail, and harry supriyono 186 needed to file a lawsuit until there is a final decision from the wto panel board, on the other hand, developed countries that have a strong economy such as america often do not respond to consultations in the mechanism, often forgetting their obligations and always busy demanding the right to gain political influence and bargaining position. so that a bilateral mechanism with a compromise between the two parties to the dispute is better used, by prioritizing diplomacy and bargaining positions that give indonesia time to think and improve its policies and for that indonesia needs to strengthen its diplomatic position by asking for consideration and involving experts who understand wto rules, especially those who concerning the agreement on agriculture (aoa), the import licensing agreement, gatt 1994 and other related regulations. the wto appellate body decisions on ds 477 and ds 478 cases do not fully lose indonesia’s expectation to improving its multilateral trading conditions as the market for national agricultural, animal, and animal products is still available. the 11th ministerial meeting in buenos aires on december 10-13, 2017 was a forum to discuss the issue concerned. during the meeting, indonesia raised some issues including the public stockholding for food security purposes (psh) and special safeguard mechanism (ssm), both of which were also championed by g-33 member countries under indonesia's coordinator.33 the meeting was also a momentum to discuss agricultural issues again, in accordance with the mandate of the doha development agenda to improve indonesia's bargaining position as one of the developing countries in international trade traffic. one of the outcomes of the g-33 meeting is encouraging global agricultural reform and creating a strong, fair, and legal multilateral trade framework through special and differential treatment based on the effective application. furthermore, as a suggestion at this point, it is more important for indonesia to create a national food security design pattern to compete at the international level and also able to create sustainability and food sovereignty in its own country. food sovereignty is a basis for genuine food security, but in terms of the corporate food regime, food security achieved through trade rather than through a strategy of selfsufficiency. la via campesina emphasized that a farmer-based production system is important so that food can be produced in a god variety of ways, and food sovereignty of the world community can be guaranteed.34 according to windfuhr and jonsen, “while food security is more of technical concept, and the right to food a legal one, food sovereignty is 33 kadata, indonesia perjuangkan isu ketahanan pangan di wto, https:// katadata.co.id/berita/2017/12/13/indonesia-perjuangkan-isu-ketahanan-pangan-di-wto 34 gbadebo odularu, emmanuel tambi, adebayo aromolaran, bola oyeleye, op.cit.; 12. udayana journal of law and culture vol. 4 no. 2, july 2020 187 essentially a political concept.” 35 in 1996, as a policy framework and discourse, food sovereignty through the agreement on agriculture (aoa) firstly emerged in response to the inclusion of agriculture within the world trading system. 36 food sovereignty encourages the formulation of trade policies and practices that serve the people's right to sustainable, healthy, and ecologically sustainable production, it means that food sovereignty does not negate the trade. food sovereignty is stated as a prerequisite for the existence of food security and depends on those who produce food and care for the sustainability of the natural environment.37 food sovereignty and food security having conceptually can be distinguished one and each other. one hand, food sovereignty enables a country to produce the food as much as it needs while on the other hand, food security allows a country to either produce or import food as needed. the huge import of commodities mostly always hurts the farmers.38 the achievement of food sovereignty will be difficult to achieve, because the mechanism of trade liberalization in the food sector, requires the government to open the faucet wide import of food products. this resulted will weakening the position of traditional farmers and make the disruption of domestic food production, and this situation also will lead to greater dependence on imported food products. 39 currently, there is no other choice for indonesia other than improving horticultural, animal and animal product trade policies as mandated by the wto while continuing to fight for food sovereignty, and strengthening national strategies to create food security more important for indonesia to be better prepared to face the development of trade liberalization in the future. in addition to trade liberalization, there are other key elements such as technical and financial capacity, education, and infrastructure to achieve food security goals. however, without reducing the role of trade in international relations, as stated by the un millennium project that trade openness can be a powerful driver of economic growth, which is indispensable for reducing poverty and encouraging development40. 35 richard lee, “food security and food sovereignty,” centre for rural economy discussion paper series no. 11 (2007): 5. 36 ibid. 37 e o h soetoto, the impact of indonesia’s food law reform on the concept of food sovereignty in indonesia, iop conf. series: earth and environmental science 131 (2018):2 38 statement by dwi andreas santosa, a professor at the bogor agricultural institute in bogor, indonesia. voa learning english, indonesia’s goal of food sovereignty remains a work in progress, https://learningenglish.voanews.com/a/indonesia-s-goal-of-foodsovereignty-remains-a-work-in-progress/4652007.html 39 hs. tisnanta, ade arif firmansyah , and malicia evendia, “ reflection on indonesia’s food regulation: the dilemma between trade liberalization, food sovereignty and protection of traditional farmers,” international journal of business, economics and law 6, no.4 (2015):164. 40 ernesto zedillo, patrick messerlin, and julia nielson. trade for development: achieving the millennium development goals (london: earthscan, 2005), 257. https://learningenglish.voanews.com/a/indonesia-s-goal-of-food-sovereignty-remains-a-work-in-progress/4652007.html https://learningenglish.voanews.com/a/indonesia-s-goal-of-food-sovereignty-remains-a-work-in-progress/4652007.html after the trade dispute: is indonesian food sovereignty threatened? kadek sarna, nurhasan ismail, and harry supriyono 188 intensification and extensification policies in products and agricultural land seems to need to be adopted. agricultural intensification is carried out by utilizing appropriate technology suitable for topography and geography. this should be followed by the adaptation of environmental friendly-modern technologies of agriculture and livestock to ensure the highvalue commodities to be able to compete in local and international markets. in increasing the quality of animal products, there is a need of improving the quality of seeds and feed, maintenance and health patterns, production and distribution management, and controlling the availability of supply needs. next, eradication and disease controls need to be taken into careful consideration. the quality and health assurance of the products must be guaranteed. this requires a synergy between departments and offices responsible for animal husbandry, health, and agricultural affairs. the extensification policies are to be carried out by expanding land use, opening new land areas, and implementing agrarian reform.41 agrarian reform should be transformed into a guarantee of certainty of land ownership, preventing impartiality in the consolidation of agricultural land, regulating and controlling of agricultural land conversion. it needs to empower landless poor farmers who tend to shift the agricultural life in the rural economy with agriculture life owned by the capital owner. spatial arrangements that guarantee the availability of water, agricultural land, and conservation are also needed to maintain sustainability and prevent environmental damage. 42 another issue in developing agriculture and food security is the effort to combat food cartels that have weakened people's economy through monopolistic practices and approaching power circles. lastly, the government should pay concern on the creation and implementation of various international trade regulations that may potentially invade indonesia with dumping practices, subsidies, incentives, and protection of their trade products through strong diplomacy and advocacy. 3. conclusion based on the discussion that has been presented above, this article concludes as follows: 1) indonesia's position in the case of ds 477 and ds 478 was weak. despite indonesia was defeated in those cases, the opportunities for indonesian agricultural products to be internationally marketed are still available. the bilateral arrangement referring to article 21 (3) (c) 41 as mandated by the decree of the people's consultative assembly of the republic of indonesia number ix/mpr-ri/2001 concerning agrarian reform and natural resource management 42 as stipulated in law no.26 year of 2007 concerning spatial planning and law no.32 year of 2009 concerning environmental protection and management. udayana journal of law and culture vol. 4 no. 2, july 2020 189 of dsu enables indonesia to discuss bilaterally with new zealand and the us regarding upcoming legitimate measures to be adopted. 2) reflecting on the results of wto ds 477 and ds 478 cases, indonesia should propose a mutually agreed solution (mas) and improving the provisions on horticulture imports and imports of animal products. indonesia should also carry out intensification and extensification policy. besides, a serious effort to eliminate food cartels needs to be conducted. lastly, indonesia should pay concern on the creation and implementation of various international trade regulations that may potentially invade indonesia with dumping practices, subsidies, incentives, and protection of their trade products through strong diplomacy and advocacy. bibliography book zedillo, ernesto, patrick messerlin, and julia nielson. trade for development: achieving the millennium 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paper series no. 11 (2007): 1-16. lee, yong-shik. “international trade law post neoliberalism.” buffalo law review 68 no.2 (2020): 413-478. soetoto, e.o.h. “the impact of indonesia’s food law reform on the concept of food sovereignty in indonesia.” iop conf. series: earth and environmental science 131 (2018):1-5. https://doi.org/10.1088/17551315/131/1/012026 tisnanta, hs, ade arif firmansyah, and malicia evendia. “ reflection on indonesia’s food regulation: the dilemma between trade liberalization, food sovereignty and protection of traditional farmers.” international journal of business, economics and law, 6, no.4 (2015):158-164. wolfe, robert. “sprinting during a marathon: why the wto ministerial failed in july 2008.” journal of world trade 44, no. 1 (2010): 81-126. law and regulation of the republic of indonesia the 1945 constitution of the republic of indonesia. decree of the people's consultative assembly of the republic of indonesia number ix/mpr-ri/2001 concerning agrarian reform and natural resource management. law no.26 year of 2007 concerning spatial planning and law no.32 year of 2009 concerning environmental protection and management. law no.41 of 2009 concerning the protection of sustainable agricultural land law no.13 of 2010 concerning horticulture law no.18 of 2012 concerning food minister of agriculture minister no.86/permentan/ot.140/8/2013 concerning horticultural product import recommendations minister of agriculture regulation no. 39/2019 concerning horticultural product import recommendations minister of agriculture regulation no. 2 of 2020 concerning horticultural product import recommendations minister of trade regulation no. 44 of 2019 concerning provisions on the import of horticultural products other documents declaration of nyéléni, nyéléni village, sélingué, mali, 27 february 2007 https://nyeleni.org/img/pdf/declnyeleni-en.pdf hertanti, rachmi and megawati. catatan akhir & awal tahun indonesia for global justice: catatan dari sengketa investasi & perdagangan internasional-dari churchill mining hingga kasus impor di wto di era proteksionism. jakarta: indonesia for global justice, 2017. https://doi.org/10.2307/3139260 https://doi.org/10.1088/1755-1315/131/1/012026 https://doi.org/10.1088/1755-1315/131/1/012026 https://nyeleni.org/img/pdf/declnyeleni-en.pdf udayana journal of law and culture vol. 4 no. 2, july 2020 191 world trade organization dispute settlement, understanding on rules and procedures governing the settlement of disputes. world trade organization, status report regarding implementation of the dsb recommendations and rulings by indonesiaaddendum, no. wt/ds477/21/add.14 and no.wt/ds478/22/add.14, indonesia – importation of horticultural products, animals and animal products, dated 23 march 2020. case law world trade organization, dispute settlement body, ds406: united states — measures affecting the production and sale of clove cigarettes world trade organization, dispute settlement body, ds477 and ds478: indonesia — importation of horticultural products, animals and animal products website content detik. begini kronologi gugatan trump rp 5 t ke ri. https://finance.detik. com/berita-ekonomi-bisnis/d-4155699/begini-kronologi-gugatantrump-rp-5-t-ke-ri global agriculture. food sovereignty. https://www.globalagriculture.org/report-topics/food sovereignty.html kadata. indonesia perjuangkan isu ketahanan pangan di wto. https://katadata.co.id/berita/2017/ 12/13/indonesia-perjuangkanisu-ketahanan-pangan-di-wto kementrian luar negeri republik indonesia. daftar kerjasama multilateral world trade organization (wto). https://kemlu.go.id/portal/ id/read/133/halaman_list_lainnya/world-trade-organization-wto kompas. ri dan as akhiri sengketa dagang rokok kretek. http://bisniskeuangan.kompas.com/read/2014/10/07/154801926/ ri.dan.as.akhiri.sengketa.dagang.rokok.kretek kumparan. ri terancam sanksi dari wto, mentan dorong revisi 4 undang-undang. https://kumparan.com/kumparanbisnis/riterancam-sanksi -dari-wto-mentan-dorong-revisi-4-undang-undang1shganhvppy liputan 6, menko darmin ungkap sebab ri harus impor beras. http://www. bisnis.liputan6.com/read /3227216/menko-darminungkap-sebab-ri-harus-impor-beras towards a food sovereignty action agenda from the nyéléni forum for food sovereignty, 23rd 27th february 2007, sélingué, mali, https://www.nyeleni.org/img/pdf/towards_a_food_sovereign ty_action_agendaii.pdf united nations department of economic and social affairs. least developed country category. https://www.un.org/development/desa/dpad /least-developed-country-category/ldc-criteria.html united nations department of economic and social affairs economic analysis. ldc identification criteria & indicators. https://www.globalagriculture.org/report-topics/food%20sovereignty.html https://www.globalagriculture.org/report-topics/food%20sovereignty.html https://kemlu.go.id/portal/%20id/read/133/halaman_list_lainnya/world-trade-organization-wto https://kemlu.go.id/portal/%20id/read/133/halaman_list_lainnya/world-trade-organization-wto http://bisniskeuangan.kompas.com/read/2014/10/07/154801926/%20ri.dan.as.akhiri.sengketa.dagang.rokok.kretek http://bisniskeuangan.kompas.com/read/2014/10/07/154801926/%20ri.dan.as.akhiri.sengketa.dagang.rokok.kretek https://www.nyeleni.org/img/pdf/towards_a_food_sovereignty_action_agendaii.pdf https://www.nyeleni.org/img/pdf/towards_a_food_sovereignty_action_agendaii.pdf https://www.un.org/development/desa/dpad%20/least-developed-country-category/ldc-criteria.html https://www.un.org/development/desa/dpad%20/least-developed-country-category/ldc-criteria.html after the trade dispute: is indonesian food sovereignty threatened? kadek sarna, nurhasan ismail, and harry supriyono 192 https://www.un.org/ development/desa/dpad/least-developedcountry-category/ldc-criteria.html voa learning english. indonesia’s goal of food sovereignty remains a work in progress. https://learningenglish.voanews.com/a/indonesias-goal-of-food-sovereignty-remains-a-work-in-progress/4652007.html world trade organization. ds 477: indonesia — importation of horticultural .products, animals and animal products. https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds477_e.htm world trade organization. indonesia importation of horticultural products, animals and animal products. https://www.wto.org/english/ tratop_e/dispu_e/cases_e/ ds478_e.htm https://www.un.org/%20development/desa/dpad/least-developed-country-category/ldc-criteria.html https://www.un.org/%20development/desa/dpad/least-developed-country-category/ldc-criteria.html https://learningenglish.voanews.com/a/indonesia-s-goal-of-food-sovereignty-remains-a-work-in-progress/4652007.html https://learningenglish.voanews.com/a/indonesia-s-goal-of-food-sovereignty-remains-a-work-in-progress/4652007.html https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds477_e.htm https://www.wto.org/english/%20tratop_e/dispu_e/cases_e/%20ds478_e.htm https://www.wto.org/english/%20tratop_e/dispu_e/cases_e/%20ds478_e.htm e-issn 2549-0680 vol. 5 no. 1, january 2021, pp. 22-40 doi: https://doi.org/10.24843/ujlc.2021.v05.i01.p02 this is an open access article, distributed under the terms of the creative commons attribution licence (http://creativecommons.org/licenses/by/4.0/), 22 identifying social contexts upon the annual homecoming prohibition due to the covid-19 outbreak kukuh fadli prasetyo* faculty of law, yarsi university, jakarta indonesia abstract despite its well-established value, the 1441 ah annual homecoming was prohibited by the government of indonesia to halt the covid-19 outbreak. this paper aims to illustrate as well as analyse social factors that come up along with the implementation of the regulation. this research employs the so-called socio-legal research method. the intercourse between law and society has been discussed thoroughly. later, the discussion builds a connection between law and society in which law initiates changes within society. furthermore, as this regulation intends to adjust a well-established social value, this paper offers analysis from a perspective of sociology of law. there is a list of considerations to study. first, the legitimate lawmakers and the measurable benchmark are the main sociological strength of the law. secondly, the absence of an integrated punishment and the ad-hoc basis of policy-making reduce the capacity to create social changes. besides, other social factors ignored by the government range from the recognition of this annual homecoming as social value to the ignorance of current social solidarity in indonesia. keywords: social change; homecoming: covid-19 pandemic; indonesia. 1. introduction the corona virus disease 2019 (covid-19) pandemic caused a catastrophic situation in indonesia. many people are infected, including those who eventually died. the government, in responding to this pandemic, established government regulation no. 21 of 2020 on large-scale social restriction in the effort to handle covid-19. a crucial point of the regulation is the delegation of authority to the local government in applying a large-scale social restriction policy as long as approved by the national government, represented by the minister of health.1 the local authorities took an effect on government regulation in the regions by emphasizing a physical (or social) distancing that requires people to keep in a safe distance among others. in practice, they regularly warn the peoples to avoid a crowd. the limitation of the transportation sector2 is one of the government‟s concerns to prevent the spread of the pandemic extensively. basically, the local government restricts the movement of people and goods. in the special * email/corresponding author: kukuh.fadli@yarsi.ac.id / prasetyo.kf@gmail.com 1 government regulation no. 21 of 2020 concerning large-scale social restriction in the effort to handle covid-19, art. 2. 2 regulation of minister of health no.9 of 2020 concerning guidelines of large-scale social restriction, art. 13 (1e) https://doi.org/10.24843/ujlc.2021.v05.i01.p02 http://creativecommons.org/licenses/by/4.0/ mailto:kukuh.fadli@yarsi.ac.id mailto:prasetyo.kf@gmail.com identifying social contexts upon the annual homecoming prohibition due to the covid-19 outbreak kukuh fadli prasetyo 23 capital region of jakarta, for example, a policy was adopted during the large-scale social restriction to reduce the operation of superstructure and infrastructure of some mass transportations, such as the service termination of two mass rapid transit (mrt) stations.3 a sharp decline in public transportation passengers was a consequence of the policy.4 a transportation policy was quite shocking to the public when the regulation of minister of transportation no. 25 of 2020 concerning transportation control during the 1441 ah annual homecoming (hereinafter, transportation minister regulation on mudik control) impose a temporary ban to peoples‟ activity for carrying out an annual homecoming, or popularly called „mudik‟.5 the regulation made clear a public discourse regarding the need to prohibit or not peoples to visit their hometown, which has been annually practiced for decades in indonesia. the government seriously acknowledged this domestic travel ban to the public. in order to deliver the importance of this policy, the president himself officially announced the prohibition of annual homecoming. besides, he also offered some alternatives to suggest the people to not exodus before eid.6 despite a criticism that the prohibition would lead to an economic stagnancy following the limited transport operators' activities, the government consistently bans mudik for workers.7 there has been estimated at least 1.3 million people who work in the regions of jakarta, bogor, depok, tangerang, and bekasi return to their hometown in april 2020.8 some of them have not obeyed the bans, intentionally return to their hometown by using various means. as an example, police officers found some persons hiding in a mixer truck.9 this indicates that the policy cannot be effectively applied as many peoples still keep visiting their hometowns. the bans for mudik in 2020 are not the first time applied in indonesia. history reveals two situations that restricted the mudik. the first ban was imposed in 1946. most muslims were not able to celebrate the eid al fitr due to the numerous armed conflict between the indonesian armed forces and 3 tempo (a),”mrt jakarta closes two more stations”, https://en.tempo.co/read/1334459/mrt-jakarta-closes-two-more-stations. 4 jakarta post (a), “public transportation use in greater jakarta plummets during pandemic: bptj”, https://www.thejakartapost.com/news/2020/04/20/publictransportation-use-in-greater-jakarta-plummets-during-covid-19-pandemic-bptj.html. 5 regulation of minister of transportation no.25 of 2020 concerning transportation control during the 1441 ah annual homecoming, art. 1. 6 cabinet secretariat of republic of indonesia,”gov‟t revises national holiday, collective leave 2020”, https://setkab.go.id/en/govt-revises-national-holiday-collectiveleave-2020/ 7 jakarta post (b), “government to allow public transportation to operate but still bans „mudik‟”, https://www.thejakartapost.com/news/2020/05/06/government-to-allowpublic-transportation-to-operate-but-still-bans-mudik.html. 8 cnbc indonesia, “ada corona, 1,3 juta orang tetap ngotot mudik di jabodetabek, https://www.cnbcindonesia.com/news/20200414125207-4-151775/adacorona-13-juta-orang-tetap-ngotot-mudik-di-jabodetabek 9 tempo (b), “polisi sebut ada orang yang ngumpet di truk molen agar bisa mudik”, https://nasional.tempo.co/read/1339435/polisi-sebut-ada-orang-yang-ngumpetdi-truk-molen-agar-bisa-mudik https://en.tempo.co/read/1334459/mrt-jakarta-closes-two-more-stations https://www.thejakartapost.com/news/2020/04/20/public-transportation-use-in-greater-jakarta-plummets-during-covid-19-pandemic-bptj.html https://www.thejakartapost.com/news/2020/04/20/public-transportation-use-in-greater-jakarta-plummets-during-covid-19-pandemic-bptj.html https://setkab.go.id/en/govt-revises-national-holiday-collective-leave-2020/ https://setkab.go.id/en/govt-revises-national-holiday-collective-leave-2020/ https://www.thejakartapost.com/news/2020/05/06/government-to-allow-public-transportation-to-operate-but-still-bans-mudik.html https://www.thejakartapost.com/news/2020/05/06/government-to-allow-public-transportation-to-operate-but-still-bans-mudik.html https://www.cnbcindonesia.com/news/20200414125207-4-151775/ada-corona-13-juta-orang-tetap-ngotot-mudik-di-jabodetabek https://www.cnbcindonesia.com/news/20200414125207-4-151775/ada-corona-13-juta-orang-tetap-ngotot-mudik-di-jabodetabek https://nasional.tempo.co/read/1339435/polisi-sebut-ada-orang-yang-ngumpet-di-truk-molen-agar-bisa-mudik https://nasional.tempo.co/read/1339435/polisi-sebut-ada-orang-yang-ngumpet-di-truk-molen-agar-bisa-mudik udayana journal of law and culture vol. 5 no. 1, january 2021 24 koningklijk nederlandsh-indies leger (knil – the royal netherlands-indies army) that occurred in some regions, including bogor. some urban workers were then restricted to return to their hometowns.10 the second ban was imposed in the 1960-s during the political efforts to take west papua back to the republic of indonesia. the government at that time warned people to restrictively use transportation in order to support the fundraising agenda and to secure the state budget. the ban was partially effective because the limitations were only applied to the jakarta railways service, while other cities, such as yogyakarta, provide normal service to the people.11 as described by agus maladi irianto, mudik covers numerous dimensions. the first is the spiritual aspect which drives people to visit their predecessor as well as remind them about the next stage of their life. secondly, it also puts a psychological dimension in which they can escape from their stressful days at their workplace. the third aspect is social consideration which enables the migrant workers to tell their family and relatives their inspiring story. the last point mentions their pride in being an outstanding social member.12 the bans of mudik policy cannot only be seen from a legal perspective, primarily with regards to many violations to the regulation by some peoples. it should also be viewed as an issue of social engineering, as it concerns a direction to change the society‟s mindset and behaviour. steven vago‟s three characteristics of social change13 may describe this situation. first, the annual homecoming ban would change people‟s behaviour on a massive scale. the law, therefore, would not only affect the urban workers, but also their family and relatives who live in the hometown/villages. second, social change also modifies the way of people interact with others as the urban workers and their family's lives in their hometowns can not conduct collective activities as they cannot meet up on the eid al fitr moment. third, the change of group activities to which numerous people are engaging drives a broader change in the way each person relates to others. in the large-scale bureaucratic society, yehezkel dror opines that social changes should be addressed and organised by the law. he also argues that “if the state desires to set up a public body the function of which bringing about certain social changes, it is necessary to use the law to set up the body and define its powers”.14 additionally, concerning the social obstacles to enforce the mudik ban, the government should also take into account the way those legal instruments deal with the social barriers. this paper aims to analyze the social contexts which influence the efficacy of the implementation of the temporary homecoming (mudik) ban 10 historia (a), “lebaran tanpa mudik di awal republik”, https://historia.id/militer/articles/lebaran-tanpa-mudik-di-awal-republik-vxlor. 11 historia (b), “mudik tahun 1960-an”, https://historia.id/urban/articles/mudiktahun-1960-an-6k4pr. 12 agus maladi irianto, “mudik dan keretakan budaya”, humanika 15, no. 2 (2012) 13 steven vago, law and society (new jersey: prentice –hall, inc., 1991), 214-215. 14 yehezkel dror, “law and social change”, in sociology of law: selected readings, edited by vilhelm aubert (new york: penguin books ltd., 1977), 94. https://historia.id/militer/articles/lebaran-tanpa-mudik-di-awal-republik-vxlor https://historia.id/urban/articles/mudik-tahun-1960-an-6k4pr https://historia.id/urban/articles/mudik-tahun-1960-an-6k4pr identifying social contexts upon the annual homecoming prohibition due to the covid-19 outbreak kukuh fadli prasetyo 25 policy. it is expected to contextualise the social contents into the sociological rationale in the lawmaking process. it is a socio-legal research that uses social contexts in a legal research and builds a contextual bridge between facts and values.15 it collects primary, secondary, and tertiary legal sources and resources to support the analysis. most studies on indonesian annual homecoming are analysed from the perspective of sociology.16 otherwise, this research offers a legal perspective to analyse this social phenomenon. 2. result and analysis 2.1. law and social change 2.1.1. intercourses between law and social change for decades, the reciprocity between law and society has raised attention from numerous scholars. social change can affect a change in legal substances. it covers a paradigm that social changes must be followed by legal reform. conversely, the law can also lead to social changes. this puts law as a determinant to change society.17 primarily, the historical school of jurisprudence fought the idea of society changed by law, as its supporters assumed that law is formed by social value. as cited by dror, von savigny, the founder of this school, proposed a concept of volksgeist (spirit of the nation) regarded law as an organic indigenous to each society.18 it means that law is formed by society, not by any source outside the society. l.j. van apeldoorn resists savigny‟s thought and argues that the historical assumption was only relevant to prehistoric societies. he additionally states that the more civilised the society is, the more heterogeneous its member will be. it drives a more complex society in which the division of labour becomes more complicated. in the long term, it would give birth to a new social class, the jurists.19 this new class, generally representing people as whole, rapidly develops the law to which non-jurist citizens would no longer pay 15 this reflects the notions of socio-legal scholars, such as roscoe pond and oliver wendell holmes jr: “law in the books and blackletter law is important but not enough to understand how „law‟ develops, what it does and does not to society, how it can be made (more) effctive and – sometimes – less harmful?”. frans l. leeuw, “empirical legal research: the gap between facts and values and legal academic training”, utrecht law review 11, no. 2 (2015): 23. 16 see irianto, op.cit. see also muskinul fuad, “makna hidup di balik tradisi lebaran”, komunika 5, no. 1 (2011): 111. 17 vago, op.cit., 216. 18 dror, op.cit., 92. 19 l.j. van apeldoorn, pengantar ilmu hukum [inleiding tot de studie van het nederlandsche recht], translated by oetarid sadino, (jakarta: pradnya paramita, 2011), 130. udayana journal of law and culture vol. 5 no. 1, january 2021 26 attention.20 for instance, a taxi driver knows the law on transportation only, but he does not have any interest in the law relating to the capital market. in modern ages, the government plays a formal role to arrange social life. by performing its law-making powers, the government can enact a regulation to initiate social change. due to its written form, soerjono soekanto idealises that law is able to produce a planned social change, not a planless change.21 one of the outstanding social changes enforced by law is that, in the 1960s, american law has been used as the preeminent instruments to improve social and political positions of african american citizens.22 according to the statistics provided by the united states department of education, this law removed racial barriers to education. 23 soekanto, further, says that law can either directly or indirectly organise social changes.24 similarly, dror also distinguishes those approaches. on one hand, law indirectly changes society by establishing social institutions by which society would be affected directly. on the other hand, the direct role of law enables the law to interact with basic social institutions in a manner of constituting a direct relationship between law and social change.25 in line with dror‟s approach, bernard arief sidharta is in the opinion that, between two approaches, the application of a new set of rules in a framework of direct change is rather difficult instead of the indirect change. although its original intent benefits society, this policy cannot be directly understood by the people. therefore, sidharta suggests the government allocate more resources and more legal officers to support the law as a tool of social engineering.26 2.1.2. advantages and limitations of law to produce social change promisingly, a social change designed by law would be systematically organised by the public authorities. howbeit, the extent to which law can bring about social changes varies according to the conditions in each circumstance.27 it, of course, stands on the advantages and disadvantages of law to create social changes. briefly, steven vago considers numerous advantages of law in creating social change. 20 ibid. 21 soerjono soekanto (a), pokok-pokok sosiologi hukum (jakarta: pt rajagrafindo persada, 2006), 122. 22 vago, op.cit., 220. 23 united states department of education, “impact of the civil rights laws”, https://www2.ed.gov/about/offices/list/ocr/docs/impact.html. 24 ibid. 25 dror, op.cit., 93. 26 bernard arief sidharta, refleksi tentang struktur ilmu hukum: sebuah penelitian tentang fundasi kefilsafatan dan sifat keilmuan hukum sebagai landasan pengembangan ilmu hukum nasional (bandung: cv mandar maju, 2009), 28-29. 27 vago, op.cit., 223. https://www2.ed.gov/about/offices/list/ocr/docs/impact.html identifying social contexts upon the annual homecoming prohibition due to the covid-19 outbreak kukuh fadli prasetyo 27 first of all, rules must be established by a legitimate authority. this bases its obedience upon the legitimacy of the lawmakers.28 in a framework of social-political context, legitimacy discusses a question on whether an actual administration is consistent with the law.29 secondly, the binding force of law comes from a wide range of reasons. from a democratic view, this binding force is constructed upon the assumption that law is a result of the social consensus.30 this consensus, of course, is taken from the interdependence between the government and the people. deflem clarifies that the interdependence31 contains electoral processes (to which the public‟s interests are democratically represented) and legislative decision-making (in which a democratic law is established by the government and subjected to the society).32 thirdly, the law should be equipped with legal sanctions. they, of course, make the binding force of law much more effective to order the legal subjects.33 sanctions can be an instrument to enforce the law as well as to secure the people‟s obedience to the law. as described by max weber, law enforcement (with its sanctions) is “a special and unavoidable problem of law”.34 on the other hand, as an instrument, the law has its limitations to get involved in an effort of social change. william m. evan, as cited by vago, explains some conditions to what extent the law can successfully change society, as follows: 35 1. the law must emanate from an authoritative and prestigious source 2. the law must introduce its rationale in terms that are understandable and compatible with existing values; 3. the advocates of the changes should refer to other communities or countries with which the population identifies and where the law is already in effect; 4. the enforcement of the law must be aimed toward making the change in a relatively short time; 5. those enforcing the law must themselves be very much committed to the change intended by the law; 6. the implementation of the law should include positive as well as negative sanctions; and 28 ibid., 225. 29 brian h. bix, a dictionary of legal theory, (oxford university press, 2009), 126. 30 vago, op.cit., 227. 31 miriam budiardjo distinguishes the relationship between the government as a ruling institution and the ruled people into two processes: interest aggregation (electoral process) and interest articulation (by which a legislation is produced). see miriam budiardjo, dasar-dasar ilmu politik (jakarta: pt gramedia pustaka utama, 2010), 405. 32 mathieu deflem, sociology of law: visions of a scholarly tradition (new york: cambridge university press, 2008), 169. 33 vago, op.cit., 229. 34 mathieu deflem, op.cit., 227. 35 vago, op.cit. 223 udayana journal of law and culture vol. 5 no. 1, january 2021 28 7. the enforcement of the law should be reasonable, not only in terms of the sanctioned use but also in the protection of rights of those who stand to lose by a violation of the law. likewise, lon l. fuller also supplies an allegory in which rex found his failure to create his legal regime. using a perspective of morality, he emphasises eight conditions by which law is not possible to enforce. he starts his analysis from rex‟s failure to achieve rules comprehensively. this condition brought about the conflict settlements conducted on an ad-hoc basis, not on a comprehensive and systematic basis.36 thereafter, he also condemns the concealment of the rules as the second failure. thirdly, the failure is caused by the retroactive law that puts the subjects into a threat of retrospective change. the fourth is that the law is not understandable. the fifth failure is addressed to the establishment of a contradictory law.37 respectively, fuller also condemns rex‟s failure to avoid frequent changes of law that “the subject cannot orient his action by them”.38 the bottommost failure is that the inconsistency between the policy as enacted and the actual policy-implementation.39 it is clear that the conditions, either enabling or disabling laws to create social change, depends on how the public authorities of both policymaking and policy-implementing functions manage the advantages and limitations of law in producing social changes as briefly supplied above. 2.2. identifying socio-legal contexts: annual homecoming restriction 2.2.1. legitimacy of lawmakers to begin with, the reason why a law was obeyed by the subjected party corresponds to the lawmakers‟ legitimacy.40 in social and political discourses, legitimacy raises a question on whether the implementation is consistent with the law.41 franz magnis-suseno phrases that legitimacy relates to the basis or raison d’etre of an authority.42 in the context of modern political circumstance, besides the object of authority, a study of legitimacy also looks at the legitimacy of an authorised subject. this perspective offers three types of legitimacy: (i) religious legitimacy, (ii) elite legitimacy, and (iii) democratic legitimacy.43 the religious requires that the political rights to govern must be authorised by an eternal power. the second assumed that a subject (or a party) whose special capability is comparatively outnumbered 36 lon f. fuller, the morality of law (new haven: yale university press, 1969), 39 37 ibid. 38 ibid. 39 ibid. 40 vago, op.cit., 225. 41 bix, loc.cit.. 42 franz magnis-suseno, etika politik: prinsip moral dasar kenegaraan modern (jakarta: pt gramedia pustaka utama, 2016), 63. 43 ibid., 65 identifying social contexts upon the annual homecoming prohibition due to the covid-19 outbreak kukuh fadli prasetyo 29 the others has a right to govern the society. thirdly, democratic legitimacy stands upon the mechanisms representing the sovereignty of people.44 the rules regarding the annual homecoming prohibition and, in a broader sense, the implementation of large-scale social restriction is conducted by the executive branch. despite the absence of legislative bodies, the rule-making process is still conducted by a legitimate officer, the president as the head of the executive45. besides its legality, in the indonesian political order, the government also has its non-legal legitimacy. in a presidential system, the pair of president and vice-president is politically legitimate, because he is directly elected by the people.46 here, the majority of people vote as well as give the elected their collective rights to which the elected and his cabinet govern. due to that understanding, the executive enacting its regulation can determine the rule to which the people ought to respect. 2.2.2. benchmark of best-practices best practices are usually taken into consideration by the government of indonesia in a decision-making process. it represents the willingness of the government to produce social change which is designed by legal instruments.47 of course, the government would like to simply deliver the successful approaches used by other countries. although some people demanded a lockdown to localise the outbreak of covid-19, the executives refused to impose it due to its potential losses. for example, in india, the announcement of a nation-wide lockdown led people to start huge transportation across this south asian country. it also brought about a rapid increase in the number of jobless. moreover, al jazeera reported that the stress of lockdown overtook the stress of the disease.48 the government also considers the effectiveness of lockdown to halt the spread of the disease. in italy, the adoption of lockdown to which criminal sanctions were attributed was not followed by the decrease in cases of infection. moreover, while applying this policy, their cases of deaths outstripped china.49 in comparison, the administration admitted the flourishing result of coronavirus disease management in south korea. they did not adopt a total lockdown policy to halt the infection. reuters reported that the remarkable 44 ibid., 66-68. 45 the 1945 constitution of the republic of indonesia, art. 4 (1). 46 ibid., art. 6a (1). 47 see vago, op.cit., 223. 48 al jazeera, “chaos and hunger amid india coronavirus lockdown”, https://www.aljazeera.com/news/2020/03/chaos-hunger-india-coronavirus-lockdown200327094522268.html. 49 independent, “why italy‟s coronavirus death toll continues to spike despite lockdown and what the uk can learn”, https://www.independent.co.uk/news/world/europe/italy-coronavirus-death-tolllockdown-uk-self-isolation-social-distancing-a9414581.html. https://www.aljazeera.com/news/2020/03/chaos-hunger-india-coronavirus-lockdown-200327094522268.html https://www.aljazeera.com/news/2020/03/chaos-hunger-india-coronavirus-lockdown-200327094522268.html https://www.independent.co.uk/news/world/europe/italy-coronavirus-death-toll-lockdown-uk-self-isolation-social-distancing-a9414581.html https://www.independent.co.uk/news/world/europe/italy-coronavirus-death-toll-lockdown-uk-self-isolation-social-distancing-a9414581.html udayana journal of law and culture vol. 5 no. 1, january 2021 30 strategies worked on their widespread testing, intensive contact tracing, and tracking apps approaches of which the social-distancing policy contained. recently, after approximately three months of conducting this policy, south korea announces the fruitful result as well as eases their social distancing policy.50 at the end of march 2020, government regulation no. 21 of 2020 concerning large-scale social restriction (hereinafter, government regulation on social restriction) was issued, by which, according to the officers, the balance between economic sustainability and people security is arranged.51 obviously, the government adopts the korean policy concerning the coronavirus outbreak. later, the government can tell the people a relatively-successful method conducted by another state or society while applying the rule. another lesson-learned can be observed from the way the government of the peoples‟ republic of china treated its citizens in a momentous chinese new year at the time of covid-19 outbreak. interestingly, the chinese government employed nation-wide travel prohibition. it affected a lot of public transportation features, such as railway, bus, flight, and ferry sailings. although it is a chinese routine celebration every year, the authorities limited the number of national transportation services in order to support the previous cancellation of the new year celebration.52 the chinese experience of travel ban policy inspired the government of indonesia to feature this into the major policy of large-scale social restriction. ruled in the ministerial of transportation regulation, this ban aims to reduce the possible spread of covid-19 while the annual homecoming occurs massively.53 2.2.3. failure to avoid frequent changes despite the state of emergency, the government of indonesia admits that the situational approach should be applied to their response to the spread of covid-19. among some ministerial regulations, the minister of transportation regulation also observed the factual conditions thoroughly.54 for example, the minister arranged a relaxation of transportation services to which numerous transportation experts say that it is a confusing change of 50 reuters, “south korea to relax social distancing rules further starting may 6”, https://www.reuters.com/article/us-health-coronavirus-southkorea/south-korea-to-relaxsocial-distancing-rules-further-starting-may-6-iduskbn22f06c. 51 tempo (c), “government insists lockdown not an option yet”, https://en.tempo.co/read/1326376/government-insists-lockdown-not-an-option-yet. 52 washington post, “chinese cities cancel new year celebrations, travel ban widens in effort to stop coronavirus outbreak”, https://www.washingtonpost.com/world/coronavirus-china-wuhanlatest/2020/01/23/2dc947a8-3d45-11ea-afe2-090eb37b60b1_story.html 53 see regulation of minister of transportation no.25 of 2020 concerning transportation control during the 1441 ah annual homecoming, art. 1. 54 see the regulation of minister of transportation no.41 of 2020 concerning the amendment of regulation of minister transportation no.25 of 2020 concerning transportation control during the 1441 ah annual homecoming, first consideration. https://www.reuters.com/article/us-health-coronavirus-southkorea/south-korea-to-relax-social-distancing-rules-further-starting-may-6-iduskbn22f06c https://www.reuters.com/article/us-health-coronavirus-southkorea/south-korea-to-relax-social-distancing-rules-further-starting-may-6-iduskbn22f06c https://en.tempo.co/read/1326376/government-insists-lockdown-not-an-option-yet https://www.washingtonpost.com/world/coronavirus-china-wuhan-latest/2020/01/23/2dc947a8-3d45-11ea-afe2-090eb37b60b1_story.html https://www.washingtonpost.com/world/coronavirus-china-wuhan-latest/2020/01/23/2dc947a8-3d45-11ea-afe2-090eb37b60b1_story.html identifying social contexts upon the annual homecoming prohibition due to the covid-19 outbreak kukuh fadli prasetyo 31 policy.55 without any clear and reasonable consideration, the experts‟ assumptions bear after the government softens their restrictive approach to handle this outbreak. in short, although it was followed by other legal instruments, it is still a debatable change of law. in fact, this relaxation brought about a huge number of people came to public airports, harbours, and bus stations as well as heading to their hometown. apart, in spite the government insisted that the health protocols ought to be conformed to the travellers, the police examination of the fake hospital letter case is an essential health security issue.56 apart from those in a normative sense, the law should be steady in terms of legal certainty. an indicator of steadiness, as depicted by fuller, is that the lawgivers should avoid frequent changes in the established rule.57 it should be done in order to keep the legal substances in steadiness. in a practical sense, the legal certainty helps the legal subjects to determine what they ought to do in accordance with the legal substances. in case of this gradual change, people could expect another change relating to the annual homecoming prohibition. of course, this drives people to break the mudik ban. however, a steady law does not resist any change to which a rigid law refers. it is still possible to amend once a fundamental change of circumstance occurs. similarly, the unimportant change would never be considered by the lawmakers to change a well-established law. this steadiness, of course, is corresponding to max weber‟s assumption of the „calculability of rules‟ as follows: but for modern bureaucracy, the element of „calculability of its rules‟ has really been of decisive significance. the nature of modern civilization, especially its technical-economic substructures, requires this „calculability‟ of consequences. fully developed bureaucracy operates in a special sense sine ira ac studio.58 in this discussion, what weber thinks of “calculability of its rules” relates to the circumstances in which the law can perform properly. in a concept of autonomous law, philippe nonet and philip selznick contend that “law is elevated „above‟ politics”.59 it means that, once the political 55 jakarta post (c), “experts slam govt for „inconsistent, poor‟ covid-19 policies after transport relaxation”, https://www.thejakartapost.com/news/2020/05/08/experts-slamgovt-for-inconsistent-poor-covid-19-policies-after-transport-relaxation.html. 56 jakarta post (d), “bali police arrest seven for allegedly selling covid-19 travel permits at gilimanuk port”, https://www.thejakartapost.com/news/2020/05/16/balipolice-arrest-seven-for-allegedly-selling-covid-19-travel-permits-at-gilimanuk-port.html. 57 see vago, op.cit., 223. see also fuller, loc.cit. 58 sine ira ac studio is defined by weber as “wihout bias or favour”. max weber, “rational and irrational administration of justice”, in sociology of law: selected readings, edited by vilhelm aubert (new york: penguin books ltd., 1977), 155. 59 philippe nonet and philip selznick, law and society in transition: toward responsive law (new brunswick: transaction publishers, 2009), 57. https://www.thejakartapost.com/news/2020/05/08/experts-slam-govt-for-inconsistent-poor-covid-19-policies-after-transport-relaxation.html https://www.thejakartapost.com/news/2020/05/08/experts-slam-govt-for-inconsistent-poor-covid-19-policies-after-transport-relaxation.html https://www.thejakartapost.com/news/2020/05/16/bali-police-arrest-seven-for-allegedly-selling-covid-19-travel-permits-at-gilimanuk-port.html https://www.thejakartapost.com/news/2020/05/16/bali-police-arrest-seven-for-allegedly-selling-covid-19-travel-permits-at-gilimanuk-port.html udayana journal of law and culture vol. 5 no. 1, january 2021 32 mechanism meets the consensus among the politicians, the law is not a part of political (and other non-legal) controversy anymore. with regards to government‟s non-legal considerations, like the negative growth of the national economy, to which the readjustment of mudik prohibition accords, this paper argues that those considerations are out of so-called “the fundamental change of circumstances”. therefore, the readjustment, or relaxation, of mudik ban is not essentially needed anymore. it, of course, should be assumed that the government must take into account the policy as well as its positive and negative impacts prior to the enactment of policy. later on, frequent changes of an enacted law shall destruct the integrity of the law. law becomes less legitimate because its norms can be readjusted without any legal considerations. moreover, this precedence can justify the lawmakers‟ incapability of making a well-arranged law. 2.2.4. lack of ‘legally-accepted’ punishments punishment is an instrument to enforce the law in the form of physical or non-physical sanctions. max weber conceives the existence of punishment, as follows: a normative order, in other words, must always be accompanied by mechanisms and systems of control that secure obedience through norm enforcement. such systems of control range from very informal responses … to highly formalised systems of enforcement of law by police institutions and system of surveillance and punishment.60 magnis-suseno argues that, due to its legitimacy, the government has the right to determine punishments subjected to the violators. moreover, the law, with its punishments, is not a mere suggestion, but it takes everyone‟s absolute obedience.61 generally, as determined by article 93 of law no. 6 of 2018 concerning health quarantine, a person who offends the health quarantine policy (law on health quarantine), in which large-scale social restriction includes, shall be stipulated to a criminal sanction of 1-year imprisonment and a fine of 100 million rupiahs.62 the provision determines that: (i) the violation is regarded as a crime and (ii) the offender shall be sentenced to the criminal sanction(s). it is obvious that regulations that derive from law on health quarantine, such as government regulation on social restriction regulation and transportation minister regulation on mudik control indicate uncertainty in punishing the offenders. it leads the minister of internal affair to instruct the heads of regional governments to utilise social 60 deflem, op.cit., 227. 61 magnis-suseno, op.cit., 206. 62 law no.6 of 2018 concerning health quarantine, art. 93. identifying social contexts upon the annual homecoming prohibition due to the covid-19 outbreak kukuh fadli prasetyo 33 punishment mechanisms.63 for example, the governor of special capital region of jakarta enacted a regulation that implements social punishments to be imposed to any violation of the social restriction.64 unlike the sanctions for the violators against social restrictions above, it is still confounding to determine the punishment applied for the mudik ban offenders. these comparable pictures illustrate how the government establishes a legal regime of large-scale social restrictions in an ad-hoc readjustment. it also corresponds to the fact supplied by i made arya utama. he depicts the facts regarding a large number of violations against the rules.65 here, the absence of “legally-accepted” leads the people to assume that the officials do not consider covid-19 countermeasures action as serious legal instrument. janice nadler argues that the existence of legal sanctions addressing coercive power, whether it is criminal, civil, or administrative sanctions strengthens the legal system. in practical sense, nadler shows that “to avoid civil liability or administrative sanctions, people are forced to refrain from doing things they might prefer to do”.66 similarly, soekanto expresses his ideas of negative sanctions and legal certainty by arguing that the application of sanctions should be covered by legal certainty. if the legal certainty is well-improved, law will have more integrity. thus, the negative sanctions67 will be more powerful to prevent the increasing number of crimes and recidivism.68 the absence of so-called punishment reduces legal certainty. in a practical sense, if a sanction for a thief was not legally determined, it would be a trigger for a good citizen to violate the norm due to the powerless law. 2.2.5. an ignorance to consider the social contexts this part discusses the theoretical basis of the social phenomenon in which, in spite of the travel ban, people still try to return to their hometown as well as violate the ban. this paper proposes two essential considerations 63 sindonews, “mendagri: pelanggar psbb wajib diberikan sanksi sosial”, https://nasional.sindonews.com/read/26495/15/mendagri-pelanggar-psbb-wajibdiberikan-sanksi-sosial-1589321112 64 see article 4 (1) of the regulation of governor of special capital region of jakarta province no. 41 of 2020 concerning the imposition of sanctions for violations of the implementation of large-scale social restrictions in handling covid-19 in the special capital region of jakarta province, that determines individuals who committing an offense against the health protocols would be sentenced with community service sanction. 65 i made arya utama, “do indonesia law and policies on covid-19 countermeasures action reflect legality?”, udayana journal of law and culture 4, no. 2 (2020): 223. 66 janice nadler, “expressive law, social norms, and social groups”, law and social inquiry 42, no. 1 (2017): 61. 67 “negative sanctions are penalties imposed on those who violate norms”. see vago, op.cit., 136. 68 soerjono soekanto (b), faktor-faktor yang mempengaruhi penegakan hukum (jakarta: rajawali pers, 2014), 43. https://nasional.sindonews.com/read/26495/15/mendagri-pelanggar-psbb-wajib-diberikan-sanksi-sosial-1589321112 https://nasional.sindonews.com/read/26495/15/mendagri-pelanggar-psbb-wajib-diberikan-sanksi-sosial-1589321112 udayana journal of law and culture vol. 5 no. 1, january 2021 34 ignored by lawmakers. firstly, the annual homecoming can be described as a social value. subsequently, the discussion on the redefinition of social solidarity in indonesia would be an integrative part to underline the alienation of social contexts from the lawmaking process. social value refers to “an element of „conformity‟ to the established order”.69 this, of course, is different from how the legal scholars observe legal norms. donald black, as cited by soekanto, obviously clarifies the difference: “from a sociological point of view, law is not what lawyers regard as binding or obligatory precepts, but rather, for example, the observable dispositions of judges, policemen, prosecutors, or administrative officials”.70 koentjaraningrat illustrates that the social value (in a specific term of cultural value) determines as well as controls everyone‟s behaviour within the society. afterward, the value becomes a pattern of the social system to which all social members‟ interaction pertains.71 irianto describes an interesting analysis of how this annual exodus exists from the perspective of a system of value. he develops an about using „dalem‟, a javanese word. „dalem’ means „me‟ as well as refers to „home‟. furthermore, the latter covers not only the building of a house but also the identity of javanese. in-depth, this is a symbol of their origins, their villages.72 accordingly, bahtiar effendy supplies a supplemental argumentation that mudik relates to the socio-cultural perspective. for example, the tradition of forgiveness (halal bi halal) among the indonesian muslims in the moment of lebaran (eid al fitr). he, also discloses that “the surge of willingness to forgive renews and strengthens social bonds and the mass homecoming reenergizes cultures and family ties”.73 to summarise the points respectively described by irianto and effendy, this annual homecoming could be marked as a ritual of reconnecting, remembering, and recharging.74 prior to indonesian independence, mohammad hatta stated that collectivism is an ideal of indonesian people. based on the collectivism, indonesian people possessed their communal value on which people work together (gotong royong).75 djokosoetono classifies this value into two 69 denis sekiwu and m.m. botha, “values for a social development in the context of globalisation: analysing the role of the ugandan school”, global journal of human-social science: linguistics and education 14, no. 4 (2014): 28. 70 soerjono soekanto and purnadi purbatjaraka, sendi-sendi ilmu hukum dan tata hukum (bandung: pt citra aditya bakti, 1983), 13. 71 koentjaraningrat, kebudayaan, mentalitas, dan pembangunan (jakarta: pt gramedia pustaka utama, 2015), 7. 72 irianto, loc.cit. 73 bahtiar effendy, insight: essays on islam and public affairs (bekasi: pt penjuru ilmu sejati, 2017), 18. 74 vissia ita yulianto, “is the past another country? a case study of rural-urban affinity on mudik lebaran in central java”, journal of social sciences and humanity 4 (2011): 50. 75 mohammad hatta, “ekonomi indonesia di masa datang”, in satu abad bung hatta, edited by sri-edi swasono and fauzie ridjal (jakarta: penerbit universitas indonesia, 2006), 5-6. identifying social contexts upon the annual homecoming prohibition due to the covid-19 outbreak kukuh fadli prasetyo 35 solidarity types to which gotong royong belongs. the first is solidarismus or onderling hulpbetoon on which people work together concerning their public interest. besides, djokosoetono mentions mutualismus or wederkerig hulpbetoon on which anyone helps others to get indirect help from others.76 in relation to the classification, koentjaraningrat, in a narrower sense, views gotong royong corresponds to mutualismus. situationally, this value is generated and developed at villages. he describes that the origin of this communal work was taken from farming activities. once a farmer helped other farmers to reap corns, it would be an advantage for him to invite his comrades to do the same for his crops.77 this circumstance occurred in a homogenous society in which each member had similarities of habits, ideas, and attitudes. 78 thus, every member of society interdepended upon an agrarian life. in durkheim words, it was a mechanic society.79 theoretically, this mechanic society has been transformed into organic solidarity which a modern society conforms to. here, money occupies collective conscience as well as substitutes the use of mutualismus like it was. in rural areas, a farmer who works at his neighbour‟s crops earns money.80 in a broader sense, this transformation also covers a lot of social dimensions, such as industrialisation to which dehumanisation and alienation are addressed. in a relation between industrialisation and social values, nurcholis madjid categorises social values into formal value and informal value (or sub-terranean values). the former is established upon industrial relations, while the latter covers people‟s life in their leisure time. essentially, the first value is represented in people‟s professional life in which they gain material objects, such as money. subsequentially, the material objects they obtain will be allocated to their leisure time.81 for instance, after their exhausting workdays in the city, people spent their leisure time in a moment of eid al fitr.82 the existence of subterranean values, like spending their leisure time at hometown, contradicts the individualism of modern society to which those who live in a city are identical. this indication, captured by irianto, showing that primordialism exists in modern society. further, he assumes that primordialism grows in mondial environment in major cities.83 although the population is not completely disclosed, the existence of the so-called “reserve labour army” could partially explain the paradox. in 76 djokosoetono, hukum tata negara (jakarta: in-hill-co, 2006), 141-142. 77 koentjaraningrat, op.cit., 63. 78 see vago, op.cit., 39. 79 ibid. 80 koentjaraningrat, op.cit., 64. 81 nurcholis madjid, islam, kemodernan, dan keindonesiaan, (bandung: penerbit mizan, 2013), 159. 82 muskinul fuad describes that people do not only celebrate the holy day, they also perfom a lot of rituals, such as halal bihalal and cemetery visit. see fuad, op. cit., 109 83 irianto, loc.cit. udayana journal of law and culture vol. 5 no. 1, january 2021 36 jakarta, besides the full-employed, industries also recruit a huge number of the reserves to underpaid and poverty must be addressed.84 while they are in their leisure time, the reserves face a culdesac to stay on in the city. further, it drives this social class to leave the city and join in this mass exodus. jan breman emphasises the situation as follows: the labour market of the informal sector is highly fragmented; those who are laid off in their branch of activity have no alternative but to go back „home‟, because staying on in the city without earnings is next to impossible. but returning to their place of origin is not a straightforward option, given the lack of space in the rural economy. nevertheless, my informants do not simply lay the blame for their predicament on the economic meltdown. from the perspective of the world‟s underclasses, what looks like a conjunctural crisis is actually a structural one, the absence of regular and decent employment.85 from another perspective, rituals could be an add-on to redefine social solidarity in indonesia. here, due to its routine, annual homecoming could be mentioned as a ritual. previously, durkheim assumes that only traditional tribes perform the rituals. however, farsijana adeney-risakotta criticises a common conception of rituals to which, in durkheim‟s assumption, only traditional societies are identical. for adeney-risakotta, ritual does not only cover religious matters, but also social, cultural, and political contexts. as well, the ritual is a social phenomenon of both traditional and modern societies that durkheim categorises into.86 3. conclusion governments currently use the law to change the society on two approaches: direct change and indirect change. since it is a planned change, the lawmakers should pay attention to the benefits and weaknesses of law in changing society. the benefits stand upon the legitimate institutions by which law is enacted, the binding force of law, and the legal sanctions. however, it also possesses limitations which several conditions accords comply with, such as comprehensive and systematic conflict settlement, reference or benchmark, the law enforcement, and use of punishment. in regard to the advantages and conditions in which law could successfully change the society, this paper analyses the prohibition of homecoming from such aspects. first, the regulation has been established by a legitimate authority. second, the contents determined by the rule rely upon a “best-practice” reference. third, it would be a shortcoming after the government changes the law without any sufficient reason frequently. the 84 arif novianto, “memperbesar tentara cadangan pekerja: „bonus demografi‟ dan ekonomi politik negara neoliberal di indonesia”, kawistara 7, no. 2 (2017): 191. 85 jan breman, “myth of the global safety net”, new left review 59 (2009): 34 86 laila kholid alfirdaus, eric hiariej, and farsijana adeney-risakotta, “theories of social solidarity in the situations of (natural) disasters”, politika 6, no. 11 (2015). identifying social contexts upon the annual homecoming prohibition due to the covid-19 outbreak kukuh fadli prasetyo 37 last, the uncertainty of sanction impositions contributes to the reduction of legal certainty. besides, the paper also captures two social contexts to which the government does not pay attention. firstly, mudik is a tradition to which several social values correspond. later on, the tradition benefits society in the way of strengthening family ties and social bonds. secondly, another ignorance is regarding the essence of social solidarity in indonesia. the government cannot directly assume that a traditional society must leave traditional values prior to transforming to the modern one. the picture of the society of indonesia 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https://nasional.tempo.co/read/1339435/polisi-sebut-ada-orang-yang-ngumpet-di-truk-molen-agar-bisa-mudik https://www2.ed.gov/about/offices/list/ocr/docs/impact.html https://www.washingtonpost.com/world/coronavirus-china-wuhan-latest/2020/01/23/2dc947a8-3d45-11ea-afe2-090eb37b60b1_story.html https://www.washingtonpost.com/world/coronavirus-china-wuhan-latest/2020/01/23/2dc947a8-3d45-11ea-afe2-090eb37b60b1_story.html https://www.washingtonpost.com/world/coronavirus-china-wuhan-latest/2020/01/23/2dc947a8-3d45-11ea-afe2-090eb37b60b1_story.html e-issn 2549-0680 vol. 5, no. 2, july 2021, pp. 119-137 doi: https://doi.org/10.24843/ujlc.2021.v05.i02.p02 this is an open access article, distributed under the terms of the creative commons attribution licence (http://creativecommons.org/licenses/by/4.0/), 119 rebalancing religious policy and the concept of public sphere: indonesia cases petrus richard sianturi* master of legal science program, gadjah mada university, yogyakarta, indonesia josua navirio pardede** master of legal science program, gadjah mada university, yogyakarta, indonesia septian dwi riadi*** master of legal science program, gadjah mada university, yogyakarta, indonesia abstract as the largest muslim country, indonesia is on the way to balancing the order of its people, their religious practice, and how these two are influencing the public sphere. there is an existing regulation called anti-blasphemy law which contains any rule to guarantee that religion and the public sphere do not contradict from one to another. related to it, this research found that in this digital era with an advanced development on technology, some factors potentially create any form of manipulation on religion which comprises religion itself, social dynamic, and legal instrument. this form of manipulation has also triggered the advancement of the interdependency discourse on religion and the public sphere. in the context of indonesia, by its characteristic, to separate religion and the public sphere will only create other problems among religious people. using normative legal research, this paper aims to look at the relevance of the anti-blasphemy law to the socio-structural conditions of indonesian society. in this research, it is argued that religion and the public sphere (state) should be placed through a form of functional differentiation concept, and found that there is an interdependent relationship between religion and the public sphere, nevertheless, antiblasphemy law failed to create and maintain this relation. hence, legal reform on the antiblasphemy law has become a necessity in ensuring a balanced and harmonious (state) religious life. keywords: anti-blasphemy law; functional differentiation; manipulation of religion; technology advancement. 1. introduction the historical journey has placed religion as a conceptual system that cannot be separated from the development of human civilization. in the last few centuries, several ideas and thoughts have placed religion as a natural phenomenon experienced by mankind that is fundamental in almost all cultures and history.1 academically, this argument is supported by some facts on the occurrence of intellectual developments in the concept of religion such as in the fields of sociology and anthology by trying to show * email : richardsianturi@mail.ugm.ac.id and rich.sianturi@gmail.com **email/corresponding author: josuanavirio1996@mail.ugm.ac.id and josuanavirio1996@gmail.com ***email: septiandwiriadi@mail.ugm.ac.id and septiandwiriadi@gmail.com 1 brent nongbri, before religion: a history of a modern concept (new haven; london: yale university press, 2013), i. mailto:richardsianturi@mail.ugm.ac.id mailto:rich.sianturi@gmail.com mailto:josuanavirio1996@mail.ugm.ac.id mailto:josuanavirio1996@gmail.com mailto:septiandwiriadi@mail.ugm.ac.id mailto:septiandwiriadi@gmail.com rebalancing religious policy and the concept of public sphere: indonesia cases petrus richard sianturi, josua navirio pardede and septian dwi riadi 120 the function and development of religion. 2 not only in the realm of intellectual notion alone but also in the space of human observation, namely society, issues related to religion will continue to generate new discourses and arguments, in this case , the indonesian people . the discussion on the relation between religion and state in indonesia was always found interesting. there are at least two reasons for this statement: first, indonesia is a country based on the idea of god almighty, as contained in the first precepts of pancasila as the basis of state philosophy (philofische grondslag), 3 and further manifested in article 29 paragraphs 1 and 2 of the 1945 constitution of the republic of indonesia (hereinafter, indonesian constitution) which more clearly shows the direction of the development of religious national law.4 second, indonesia is now the largest muslim country in the world through its population number. it is also undeniable that all acting governments from time to time could not reject the existence of religious values to develop and run every (public) policy. however, the way to run a state in balanced and proportional differentiation in where and when religion should act and where and when not, has not always been easy. indonesia faces many challenges in the effort of balancing religion and the public sphere issue. at the same time, some regulations have been created and made new problems at hand. as this research is focused to examine the existence of presidential decree no. 1/pnps/1965 concerning the prevention of abuse and/or blasphemy of religion (hereinafter, anti-blasphemy law), 5 we found that the implementation of the law has even made “unintended consequences” to the society itself.6 2 robert segal, “theories of religion,” in the routledge companion to the study of religion, ed. john r hinnels (london; new york: routledge, 2009), 49–60. 3 soekarno stated that the philosfische grondslag as a "fundamentals, philosophy, deepest thoughts, souls, deepest desires for the building of an independent indonesia, eternal and everlasting", soekarno in saafroedin bahar, ananda b. kusuma & nannie hudawati eds., risalah sidang badan penyelenggara usaha persiapan kemerdekaan indonesia (bpupki)-panitia persiapan kemerdekaan indonesia (ppki) 28 mei 1945-22 agustus 1945. ed. iii. cet. 2 (jakarta: sekretariat negara r.i., 1995), 41. 4 article 29 of the 1945 constitution affirms: (1) the state is based on the one almighty god; (2) the state guarantees the independence of every resident to embrace their respective religions and to worship according to their religion and beliefs. therefore, bagir manan, ali abdurahman & mei sussanto stated that, "as a philosfische grondslag, pancasila should be embodied in all aspects of the nation's life, including the field of law. therefore, it is a necessity and necessity that the national law of pancasila contains religious content as the embodiment of the precepts of the one godhead, as the moral foundation of the national legal system. bagir manan, ali abdurahman & mei sussanto, “pembangunan hukum nasional yang religius: konsepsi dan tantangan dalam negara berdasarkan pancasila”, jurnal bina mulia hukum 5, no. 2 (2021): 186-187. 5 there are some english translations and abbreviations for this presidential degree, e.g. law on prevention of religious defamation and pnps law. 6 what is meant by "unintended consequences" here is the impact that occurs outside the purpose of the establishment of the pnps law or anti-blasphemy law itself, which aims to secure the legal interests of the religion adhered to in indonesia.hwian christianto, “the significant impact of law no. 1/pnps/1965 for the freedom of religion”, jurnal yudisial, 6, no. 1 (2013): 4. or if we refer to the opinion of oemar seno adji, “the existence of the blasphemy law aims as a defense mechanism against pancasila with the precepts of belief in the one supreme god from attacks by mocking words. oemar seno udayana journal of law and culture vol. 5 no. 2, jul y 2021 121 in its journey, the anti-blasphemy provision was only used in eight cases in its first four decades, but the verdicts increase to 125 cases during president susilo bambang yudhoyono's decade in power, from 2004 to 2014. twenty-three (23) other people have also been sentenced since president joko widodo took office in 2014.7 then during the initial period of the pandemic (january-may 2020), there have been 38 cases of blasphemy. 8 some phenomenal cases related to blasphemy such as the case of the lia eden sect in 2008,9 then the case of the former governor of dki jakarta, basuki tjahaja “ahok” purnama in 2016,10 or the mosque sound system protest by meiliana in north sumatra on 2016.11 in the scope of legal science, the discourse related to anti-blasphemy law itself is dominated by studies of penal, islamic, and constitutional law, such as those relating to criminal offenses12, criminal liability13, judicial review14 , and islamic concepts15. hence, the socio-philosophical approach offered in this research also seeks to contribute to the diversity of thought in perceiving an issue related to pnps law or anti-blasphemy law. this writing is normative legal research. it uses secondary data including primary, secondary, and tertiary legal sources that are processed with quantitative data. those sources and resources are analyzed descriptively to explain the actual and contextual reality between the three main components namely law, religion, and society in indonesia. adji. perkembangan hukum pidana dan hukum acara pidana sekarang dan di masa jang akan datang (jakarta: pantjuran tujuh, 1984), 297. 7 andreas harsono, “korban penerapan pasal penodaan agama di indonesia”, https://www.hrw.org/id/news/2018/10/25/323701 8 berita satu, “ylbhi: januari -mei 2020 terjadi 38 kasus penodaan agama” https://www.beritasatu.com/nasional/670519/ylbhi-januarimei-2020-terjadi-38-kasuspenodaan-agama 9 tempo. “begini perjalanan metamorfosa lia eden”, https://nasional.tempo.co/read/672566/begini -perjalanan-metamorfosa-lia-eden 10 detik news, “soal al maidah 51, ahok: saya tak berniat melecehkan ayat suci alquran”, https://news.detik.com/berita/d-3315203/soal-al-maidah-51-ahok-saya-takberniat-melecehkan-ayat-suci-alquran 11 bbc news indonesia, “banding meiliana, yang divonis penjara 1,5 tahun karena keluhkan suara azan, ditolak mahkamah agung”, https://www.bbc.com/indonesia/indonesia-47859654 12 kurnia dewi anggraini, “penafsiran tindak pidana penodaan agama dalam perspektif hukum”, era hukum: jurnal ilmiah ilmu hukum, 15, no. 2 (2017): 267-268; & hijrah adhyanti mirzana, “kebijakan kriminalisasi delik penodaan agama”, pandecta 7, no. 2 (2012): 147-148. 13 ajie ramadan, “aspek-aspek konstitusional penodaan agama serta pertanggungjawaban pidananya di indonesia”, jurnal konstitusi 15, no. 3 (2018): 616-617. 14 yayan sopyan, “menyoal kebebasan beragama dan penodaan agama di indonesia”, jurnal cita hukum 3, no. 2 (2015) 195-196. 15 muhammad dahri, “tindak pidana penodaan agama di indonesia: tinjauan pengaturan perundang-undangan dan konsep hukum islam”, at-tafahum: journal of islamic law 1, no.1 (2017): 57-58. https://www.hrw.org/id/news/2018/10/25/323701 https://www.beritasatu.com/nasional/670519/ylbhi-januarimei-2020-terjadi-38-kasus-penodaan-agama https://www.beritasatu.com/nasional/670519/ylbhi-januarimei-2020-terjadi-38-kasus-penodaan-agama https://news.detik.com/berita/d-3315203/soal-al-maidah-51-ahok-saya-tak-berniat-melecehkan-ayat-suci-alquran https://news.detik.com/berita/d-3315203/soal-al-maidah-51-ahok-saya-tak-berniat-melecehkan-ayat-suci-alquran https://www.bbc.com/indonesia/indonesia-47859654 rebalancing religious policy and the concept of public sphere: indonesia cases petrus richard sianturi, josua navirio pardede and septian dwi riadi 122 2. result and analysis 2.1. religion and society in indonesia in the indonesian context, religion and society have a unique relationship that is correlated with each other. from the historical aspect, the discourse of both has existed long before indonesia's independence, when dutch legal experts. lodewijk willem christian van den berg introduced the theory of "receptio in complexu", which states that religious law (islam) is accepted as a whole by the surrounding community who embraces that religion. in short, customary law follows the religious law embraced by the indigenous people.16 however, this theory was refuted by snouck hugronje and van vollenhoven through their 'receptie' theory. according to hugronje, islamic law can be applied as long as it does not conflict with or has been accepted by customary law. that is, isla mic law follows the customary law of the surrounding community.17 this theoretical discourse shows that the interaction between religion and state policy is not a new phenomenon in indonesia and has been recorded in the history of the nation's journey. both internally and externally, religion is a component that can produce a wide influence on various other social components in society. the most recent national census on religion conducted in 2018 produced religious demographic figures in indonesian society. from the total 266.534.836 inhabitants of indonesia, islam became a religion with a majority of 231.069.932 persons (86,69 % eighty-six point sixty-nine percent), followed by protestant 20.246.267 persons (7,59% seven point fifty-nine percent), catholic 8.325.339 persons (3.12% three-point twelve percent), hindu 4.646.357 (1.74% one point seventy four percent), buddhist 2.062.150 persons (0.77% zero point seventy seven percent), confucianism 71.999 persons, and penghayat kepercayaan believers in god 112.792 persons 18 the composition shows how indonesian’s religious awareness is not only formed from one dogmatic awareness but consists of diverse elements including various forms of religious practices outside the six religions recognized by the state or known as indigenous beliefs, which is based on data from between 12 million to 20 million.19 related to that, in the education field, religion influences how the orientation of the construction of the indonesian education system can work. data from the ministry of religious affairs shows the number of 16 soerojo wignjodipoero. pengantar dan asas-asas hukum adat (jakarta: haji masagung, 1990), 28. 17 muara hutagalung. hukum islam dalam era pembangunan (jakarta: indo hill co, 1985), 19. 18 ministry of religious affairs, “statistics of the citizen by religi on in indonesia,” http:// https://data.kemenag.go.id/agamadashboard/statistik/umat 19 there are no precise data that provides the number of the population who live in what so-called indigenous belief. there is data that says 12 million people from the library of congress global legal monitor, “indonesia: constitutional court opens way to recognition of native faiths,” www.loc.gov/law/foreign-news/article/indonesiaconstitutional-courtope ns-way-to-recognition-of-native-faiths. there is also data shows 20 million people, compared to the us state department, “international religious freedom report for 2016, 2017,” www.state.gov/j/drl/rls/irf/2016 https://data.kemenag.go.id/agamadashboard/statistik/umat http://www.state.gov/j/drl/rls/irf/2016 udayana journal of law and culture vol. 5 no. 2, jul y 2021 123 faith-based education, such as islamic education continues to increase every year. since 1977, the number of pesantren (islamic boarding schools) which only amounted to 4,195 with the number of students around 677,394 people continued to increase in the next decade as in 1985 which amounted to 6,239 units and the number of students around 1,084,801 people. in 1997, the ministry noted the number of pesantren had increased by 9,388 and increased of students by 1,770,768. then in 2016, there were already 28,194 pesantren spread both in urban and rural areas with 4,290,626 students. 20 no less than pesantren, islamic-oriented formal education has also a relatively high number, wherein 2018 there was 47,221 islamic-oriented formal education in indonesia with a ratio of one school to 4,387 students.21 in addition to islamic education, other religions such as catholicism and protestantism also have educational institutions at various levels that have an educational orientation by their religious values. data shows that there are around 3821 schools with a catholic educational orientation and more than 5000 for protestantism with a total number of students of 723,022.22 in the political field, religion has a strategic position and becomes a medium for group participation and aspirations in democratic life. it is worth noted that there are certain political parties such as pks, pkb, ppp, and pan who declare themselves to have a religious orientation in carrying out their respective political activities. in the same line, the trend of religious influence in electing leaders was reiterated in the past 2017 dki jakarta regional election, where the majority of voters based their choices for "same religion" reasons by 34.9% (thirty-four point nine percent) outperforming other reasons such as "proof of real work" with 13.2% (thirteen point two percent) and "programs offered” only by 7.2% (seven point two percent).23 this figure shows the magnitude of the influence of religion in the political matters of society, where religious identity is still considered as the “mouthpiece” of the ideal group's aspirations in democratic activities in indonesia. 2.2. social reality and religion today data shows the information, communication, and technology development index (iptik) in indonesia continues to increase every year, wherein 2017 iptik indonesia is at 4.99, an increase from 2016 with an index of 4.34. this index shows the increase in technological development in indonesia, especially communication and information by looking at three main indicators namely access and infrastructure, utilization, and 20 directorate general of islamic education, sistem informasi dan humas seketariat direktorat jenderal pendidikan islam: annual report. (jakarta: ministry of religious affairs, 2017), 13. 21 azmil tayeb, islamic education in indonesia and malaysia: shaping minds, saving souls, (jakarta: routledge, 2018), 12. 22 persekutuan gereja-gereja di indonesia, “christian school condition in indonesia,” https://pgi.or.id 23 burhanuddin muhtadi. populisme politik identitas & dinamika elektoral: mengurai jalan panjang demokrasi prosedural (malang: intrans publishing, 2019), 16. rebalancing religious policy and the concept of public sphere: indonesia cases petrus richard sianturi, josua navirio pardede and septian dwi riadi 124 expertise.24 this fact also has an impact on religion as part of the social reality of indonesian people who experience various shifts to cyberspace. such social dynamics had created a trend in indonesian society that tried to find spiritual fulfillment in cyberspace. data released by the national counterterrorism agency (bnpt) shows that 9.89% (nine point eighty-nine percent) of indonesians use social media to search for and disseminate content about religion. the figure was formed from the composition of some information such as "the existence of god" of 43.91% (fourty three point ninety-one percent), "the power of god" of 40.31% (forty point thirty one percent) and "the story of the saints" of 36.72% (thirty six point seventy-two percent).25 besides, in general, in 2017 indonesian people have an interest in religious content on the internet by 41.55% (forty one point fifty-five percent) in the social information category.26 these conditions led to a situation where traditional religious authorities became a choice. religious leaders to religious institutions that were previously the main guideline in religious life in society have experienced a shift in position due to the easier and satisfying access to religious content and information on social media. this situation can lead to conditions where people easily echo information (related to religion) without verifying or falsifying the information based on merely subjective -emotional needs or known as the "post-truth" phenomenon. the formation of a "post-truth" society led to the emergence of various manipulative efforts towards religion in cyberspace, especially in the form of hoaxes consisting of misinformation and disinformation related to religious content in cyberspace. in 2017, at least 800,000 sites spread hoax news, and in the same period, public report on the negative religious content was ranked second with a total of 15,818 contents and/or sites.27 then, from august 2018 to april 2019, there were 1224 cases of hoax spreading where religious-themed hoaxes were ranked 6th with a total of 81 hoax contents.28 however, the data also shows that hoax content related to religion does not only standalone but is also manipulated for political 24 badan pusat statistik , “development index: information and communication technology (iptik) indonesia,” http://bps.go.id 25 badan nasional penanggulangan terorisme, social media dissemination index, (jakarta: badan nasional penanggulangan terrorism , 2019). 26 indonesian internet service providers association, “penetration and behavior of internet user in indonesia,” http://teknopreneur.com 27 ministry of information and communication, “there are 800.000 hoaxes’ sites in indonesia,” http://kominfo.go.id 28 various cases of religious-based hoaxes that have occurred, especially before the regional head election season, as happened in 2018, hoaxes on mosque construction by the governor of dki jakarta, hoaxes on religious blasphemy by ahok, hoaxes on large religious-based demonstrations and hoaxes against religious leaders (ulama). bbc news indonesia, “hoax seputar kasus ahok, fpi, 4 november”, https://www.bbc.com/indonesia/trensosial-37843842 http://bps.go.id/ http://teknopreneur.com/ http://kominfo.go.id/ https://www.bbc.com/indonesia/trensosial-37843842 udayana journal of law and culture vol. 5 no. 2, jul y 2021 125 purposes with the presence of 43 religious-political contents throughout, for example, in 2019 as a political year.29 every form of manipulating religion to accommodate certain interests is not only supported by technological advances and extensive communication flow. the law as part of essential components in society also plays a role in such increasingly vulnerable manipulative acts. it is known that in 2018 there are around 22 discriminatory regulations with three main groups of types of policies namely the necessity to carry out “congregational prayers”, the obligation to dress or religious attributes , and the obligation to read the al-quran. the majority of these policies are circular policy (15 policies), written regional head policy (1), unwritten regional head policy (2), unwritten school principal policy (1), school code of conduct (1), draft regional law (1), and code of conduct competition (1).30 also, there are quite controversial legal instruments such as the antiblasphemy law in indonesia's national legal system with legal construction aimed at establishing "gray" areas, namely religion. this anomalous legal product was then followed by, among others, the presence of a joint decree (skb) of 2 (two) ministers31 which became phenomenal with the regulation regarding the need for a minimum number of permits for a certain community to build their houses of worship that harmed the space for religious freedom in indonesia. in its practice, the joint decree is a form of discrimination against certain religious groups, particularly the minorities32 the existence of various legal instruments becomes a kind of manipulation of religion. where this juridical reality opens up opportunities for control efforts over religion to accommodate certain interests in the law enforcement space. to sum up the issue, this research found that religious matters in the public sphere have led to the creation of an interdependency relation between religious people along with its social dynamic and the existence of religion through legal instruments such as the existing anti-blasphemy law. as these two matters are now running at the same time ( tempus) and place (locus), it is clear to depict that such social dynamics have led to the 29 ministry of information and communication, “ministry of information and communication findings: hoax is most separated in april 2019,” http://kominfo.go.id 30 wahid foundation, “membatasi para pelanggar: laporan tahunan kemerdekaan beragama berkeyakinan wahid foundation 2018,” http://wahidfoundation.org 31 surat keputusan bersama 2 (dua) menteri (joint decree of two ministers) has the official name “joint ministerial regulations (pbm) no. 9 and 8 of 2006 on guidelines for the implementation of duties of regional heads/deputy heads in the maintenance of religious harmony, empowerment of religious harmony forums, and establishment of houses of worship”, is a regulation that provides a number of provision for the establishment of places of worship in indonesia, such as a list of names of people who permit the establishment, written recommendations from the head of the district/city religious department office to the written recommendations for religious communication forums. in this context, the existence of the 2 ministerial decree is another example of legal intervention against religion which tries to design the religious life of the community as desired, yet it creates other new problems in the building process of the houses of worship. 32 nella sumika putri, “pelaksanaan kebebasan beragama di indonesia (external freedom) dihubungkan ijin pembangunan rumah ibadah”, jurnal dinamika hukum 11, no. 2 (2011): 241. http://kominfo.go.id/ http://wahidfoundation.org/ rebalancing religious policy and the concept of public sphere: indonesia cases petrus richard sianturi, josua navirio pardede and septian dwi riadi 126 manipulation of interpreting, approaching, and/or practicing religion. this research argues that the above condition constructed a unique interdependent relationship between the two that support one another. 2.3. anti-blasphemy law: an overview indonesia is still maintaining presidential decree no. 1/pnps/1965 concerning the prevention of abuse and/or blasphemy of religion which is known as anti-blasphemy law. despite many controversies that have been made during the enactment of this law, indonesia is still le gally recognized the need for such law. as stated in point 2 (two) of the elucidation, the law aims to "protect" state and society from any mystical belief and/or practice of such belief that threatening the so-called certain “recognized” religion (islam, protestant, catholicism, hinduism, buddhism, and confucianism). in essence, the law prohibits statements or activities that insult a recognized religion or intend to prevent someone from adhering to such a religion. the law also forbids distributing information designed to spread hatred or dissension based on ethnicity, religion, or race. under these provisions, individuals can be prosecuted for blasphemous, atheistic, or heretical statements.33 however, this provision seems contradicts to the provision of article 29 of the indonesian constitution which guarantees that indonesian people have the right and freedom to live and embrace the belief which they choose. it is understandable that during its enactment for more than 50 years, the law has been challenged for judicial review before the constitutional court. through the ambiguity of the anti-blasphemy law and the existence of article 29 of the indonesian constitution, consequently, other religions such as judaism, zarathustranism, or taoism, including all mystical beliefs that exist in indonesia are not banned. however, things written normatively have not always been in line with the practical fact were the discrimination of such belief out of the recognized religion had happened massively. according to amnesty international, from 2005 to 2014, there were at least 106 individuals sentenced by anti-blasphemy law. these cases were in various forms. for example, in east java, tajul muluk was sentenced to four years in prison for being deviant as he is a membe r of shiite.34 in central java, andreas guntur, the leader of the divine majesty mandate 33 paul marshall, “the ambiguities of religious freedom in indonesia.” the review of faith & international affair 16, no.1 (2018): 85-95. 34 tajul muluk a.k.a ali murtadha was legally and convincingly proven to have committed blasphemy with a sentence of 2 (two) years in prison. sampang district court decision no. 69/pid.b/2012/pn.spg, 2012, p. 1-2. regarding this decision, one of the ngos, the commission for disappeared persons and victims of violence (kontras) stated that the decision taken by the judge against tajul muluk was a form of careless justice by not assessing the justice substance contained in the evidence tha t presented at the trial, this statement can be seen in kontras, “peradilan sesat tajul muluk”, https://kontras.org/2012/07/16/peradilan-sesat-tajul-muluk/ https://kontras.org/2012/07/16/peradilan-sesat-tajul-muluk/ udayana journal of law and culture vol. 5 no. 2, jul y 2021 127 sect, was sentenced to four years in prison for his faith. 35 in 2012, the same year of andreas guntur, sebastian joe was sentenced to five years in prison by the bandung high court on the allegations of the islam defenders front (fpi) who stated joe had insulted islam and created a new religion.36 in 2017, basuki tjahaja purnama, popularly called and known as ‘ahok’, was charged with blasphemy under criminal code and antiblasphemy law and was sentenced to two years in prison.37 all controversies resulted from the anti-blasphemy law made some groups of people challenged the law before the constitutional court through a judicial review mechanism. in 2009, groups of non-governmental organizations (ngos) and individuals requested the court to revoke the anti-blasphemy law by arguing that the existence of this law has made more problems in religious harmony than to give benefits to society. they also argued that the law harmed the protection and enforcement of human rights as regulated in the indonesian constitution. the plaintiffs also stated that the regulation, especially to articles 1 and 2, had made multiinterpretation on the concept of religion and/or faith and that the provisions contained in the anti-blasphemy law are contrary to the principles of the rule of law, with the reason that the law was made by the old order regime when the president has the authority to make laws. the law has been deemed incompatible with the spirit of the constitution because the power to make laws is in the hands of the peoples’ representative council (dpr) is contained in article 20 paragraph (1), while the government only has the right to submit a bill to the dpr according to article 5 paragraph (1).38 they concluded that the existing anti-blasphemy law had decreased the guarantee and protection of one’s right directly or indirectly. in their point of reason to challenge the law, such a situation impacts the relationship among individuals in the society from data analyzed in this paper. to support their arguments, one of their witness expert to the court 35 the klaten district court decided that andreas guntur had violated article 156a of the criminal code which was sourced from the pnps law or anti-blasphemy law, and must be sentenced to imprisonment for 4 (four) years. putusan pengadilan tinggi semarang no. 98 / pid / 2012 / pt.smg-andreas guntur wisnu sarsono, 2017, p. 11-12. 36 as a result of his comments on facebook, which were considered intentionally and without rights to spread information to create feelings of hatred/hostility towards individuals and certain community groups based on sara/suku, agama, ras, golongan (ethnicity, religion, race and inter-group), the ciamis district court sentenced him to 5 (five) years in prison. sebastian joe bin abdul hadi. ciamis district court decision no. 278/pid.sus/2012/pn. cms-sebastian joe, 2012. 4. 37 the north jakarta district court in its decision stated that the defendant ir. basuki tjahaja purnama a.k.a ahok was legally and convincingly proven guilty of committing a criminal act of blasphemy and article 156a of the criminal code and then sentenced the defendant to imprisonment for 2 (two) years. putusan pengadilan negeri jakarta utara no. 1537/ pid.b/2016/pn.jkt utr-ir. basuki tjahaja purnama a.k.a ahok, 2017, 2. 38 the ngos are imparsial, elsam, pbhi, demos, perkumpulan masyarakat setara, desantara foundation, and ylbhi. there are also groups of prominent figures; former indonesian president k.h abdurrahman wahid, prof. dr. musdah mulia, prof. m. dawam rahardjo and k.h. maman imanul haq. read constitutional court decision no. 140/puu-vii/2009, 1-3. rebalancing religious policy and the concept of public sphere: indonesia cases petrus richard sianturi, josua navirio pardede and septian dwi riadi 128 is w. cole durham jr, emeritus professor of law at the j. reuben clark law school of brigham young university, who stated that the international covenant on civil and political rights (iccpr) has not limited any form of religion to the “big religion” as exist today, but also guarantee the protection of all religions as a “sub-division” of the big religion, any movement of new religious practice, folklore religion, etc.39 in this context, wahid foundation research data in 2018 need to be considered. wahid foundation released 276 violations on freedom of religion and belief. most violation acts were carried out in the form of punishment based on religion/belief amounting to 48 actions, and religious/belief heresy amounting to 32 violations. this trend has increased from the previous year which amounted to 26 acts for criminalization and 19 actions for heresy/religion. the strengthening of identit y politics and the increasing violations of freedom of religion and belief leave s the question, what causes this trend to increase? as well as what factors are causing the rapid growth of religion-based identity politics and religious fundamentalism in indonesia? the analytical framework for the above questions can be answered from how indonesia places religion in its relation with the state. if we look backward, the fall of the new order which was marked by the emergence of democratization in all aspects was accompanied by the weakening of the state in people's lives. decentralization makes new local powers emerge into the public sphere and collaborate with capital forces, thus giving rise to the dominance of private interests in the public sphere. on the other hand, communal interests based on religious or ethnic identity have also emerged to fill the void of the public sphere (after the weakening of the state), so that due to the absence of direct public access to the state, only two options remain. market fundamentalism or religious fundamentalism.40 in this context, many islamic organizations with a "jihadist" pattern emerged, both from local-traditional contexts and as agents of the transnational-islamic movement (hizbut tahrir, islamic state of iraq and syria) with anti-secularism, anti-liberalism, and queuing pluralism characteristics. with their sectarian and exclusive character, these movements construct their political and religious identity as the frontline defenders of islam and claim to be "pure" islam so that many muslim groups who are socio-economically marginalized are provoked and also become agents of spreading the word. sectarian sentiments, anti -pluralism, racism, and exclusivism. the configuration of all of this is based on what a.e. priyono calls "fundamentalism reason", the reason that considers our 39 "big religion" such as islam, christianity, jews, judaism, hinduism, buddhism. ibid, 113. 40 a.e. priyono, “nalar fundamentalisme agama di ruang-publik,” priyono, a.e. “nalar fundamentalisme agama di ruang-publik,” indoprogress.com, 21 march 2011. udayana journal of law and culture vol. 5 no. 2, jul y 2021 129 group the most correct, the most superior, the most 'pure', supremacist, and the solution to everything.41 2.4. functional differentiation: an alternative for extreme separation or integration in this context, the development of an era is marked by the increase of sophisticated technology and communication which has a significant impact especially on the relationship between religion and the state. some figures such as marx, js mill, comte, spencer, and freud consider that in the modern era the role of religion will fade. jurgen habermas stated that the process of advancing the age will also be followed by a process of secularization until one day religion will disappear from people's lives. habermas assumed that with the development of modern democratic society, the function of religion in fostering social integration would be replaced by a secular communicative ratio. habermas believes that the role of religion will be replaced by communicative actions and the consensus that results. he stated, that the expressive function and social integration that had been initiated by religion for a long time would be replaced by communicative actions.42 whereas the authority of the sacred will be replaced by the authority of consensus which is sought every time.43 based on the thesis of "the death of religion", when the cold war ended, francis fukuyama stated that the victory of liberalism had been the end of the history of civilization and secular liberal de mocracy was the best political system that humans could achieve. 44 there are three basic principles of secularization, namely maintaining the concept of a large gap between the "religious" and "secular" world, matters relating to religion are in the private sphere, and the privatization of religion is a conditio sine qua non in the liberal democratic system.45 jose casanova, a sociologist from georgetown university, stated that secularization does not only have a single meaning but rather different meanings from one another. secularization can be interpreted as a decline in the beliefs and practices of religious worship in modern society so that it is often interpreted as a part of the process of universal human development. 46 besides, using this thesis, secularization can also be interpreted in the form of religious privatization and is often understood as a consequence of normative modern historical tendencies, which are a 41 ibid. 42 gusti a. b. menoh, agama dalam ruang publik. (yogyakarta: kanisius, 2018), 97. 43 jurgen habermas, the theory of communicative action (boston: beacon press, 1987), 77. 44 fukuyama explained that after the end of the cold war, western liberal democracy is the endpoint of mankind's ideological evolution and the final form of human government. read more francis fukuyama, “the end of history,” the national interest no. 16 (1989): 4. 45 achmad djatmiko, “kebangkitan agama dan prasangka sekuler dalam kajian hubungan internasional,” politika 8, no. 1, april (2017): 10. 46 jose casanova, “the secular and secularism,” journal of social research, 76 no.4 (2009): 1051-1052. rebalancing religious policy and the concept of public sphere: indonesia cases petrus richard sianturi, josua navirio pardede and septian dwi riadi 130 precondition for modern liberal democratic politics. at a certain level, secularization can also be interpreted as an effort to differentiate secular domains (state, economy, science, and technology), which by achmad djatmiko, usually understood as 'emancipation' from religious norms and institutions.47 however, the thesis that religion will die along with the strengthening of modernism and secularism is not supported by a strong basis of argumentation. berger stated that when the 20th century began, predictions of the diminishing role of religion were increasingly doubtful because of the opposite, that in most parts of the world there had been an "explosion of faith".48 berger further state d, "i think what i and most other sociologists of religion wrote in the 1960s about secularization was a mistake. our underlying argument was that secularization and modernity go hand in hand. with more modernization comes more secularization. it wasn't a crazy theory. there was some evidence for it. but i think it's wrong. most of the world today is certainly not secular. it's very religious."49 regarding berger's opinion, rodney stark presents several data on the criticisms of secularization theory that developed in the 20th century: first, the decline of religion as a result of secularization is only a myth.50 stark, quoted tocqueville, as saying that the significance of the role of religion in the united states 150 years ago persisted, even increased. star also pointed out that 'scientific atheism' which is believed to erode the role of religion is experiencing a backflow when viewed from the side of publ ic trust. 51 second, referring to some of the works of sociologists, anthropologists, and historians, stark shows that the piety of the past which is opposed to skepticism and secularism in this era is something that is not right.52 third, instead of going through the "golden of faith" era, what happens is an increase in belief in god.53 fourth, with regard to the relationship between religion and science, stark quoted james leuba's research in 1914 which stated that 41.8% (forty-one point eight percent) of scientists believed in god and prayed to 47 djatmiko, op.cit. casanova identified three examples that the de -privatization of religion can be justified, first, to defend modern rights and freedoms, and the existence of a democratic society itself; second, to sue secular autonomy in which, although valid, is absolute; and third, to protect raditional life from juridica l interference and state administration. compare to jose casanova, public religions in the modern world, (chicago: the university of chicago press, 1994), 6. 48 peter l. berger, “secularization falsified.” http://www.firstthings.com/article/2008/02/002-secularization-falsified 49 peter l. berger, “epistemological modesty: an interview with peter berger,” christian century, 114 no. 30 october (1997): 972. 50 rodney stark, “secularization: r.i.p.,” sociology of religion, 60 no. 3 (1999): 254. 51 ibid. 52 ibid., 255. 53 stark, as he quoted from world values surveys on iceland in 1990 showed that 81% (eighty one percent) of icelanders express confidence that there is life after death, 88% (eighty eight percent) believe humans have a soul, and 40% (fourty percent) believe in reincarnation. ibid., 264. http://www.firstthings.com/article/2008/02/002-secularization-falsified udayana journal of law and culture vol. 5 no. 2, jul y 2021 131 him, 41.5% (forty-one point five percent) did not believe in god personally and 16.7% (sixteen points seven percent) gave definitive answers.54 fifth, the revival of eastern europe after the fall of the soviet union in 1991, where the traditional beliefs of eastern europeans who were predominantly orthodox christians re -emerged. 55 stark's research shows that the attendance rate of worship in hungarian society increased from 16% (sixteen percent) in 1981 to 25% (twenty-five percent) in 1991. in the same study, data from people claiming to be atheists declined from 14% (fourteen percent) to 4% (four percent), while in russia in 1991, as many as 53% (fifty-three percent) of the population claimed to be religious, and dropped to 37% (thirty-seven percent) in 1996. sixth, the rise of islam and local beliefs in asia, among others in 1978 in turkey, 36% (thirty-six percent) of students believed in heaven and hell. this figure rose sharply to 75% (seventy-five percent) in 1991. 56 this is interesting because turkey since attaturk came to power, has issued a policy regarding the strict separation between state and religion. looking at the data, the phenomenon that occurred at the end of the 20th century seemed to provide the same conclusion. secularism found such strong challenges when it is faced with the fact that various events that strengthened the role of religion in political life such as liberation theology in latin america and the iranian revolution led by ayatollah khomeini.57 also, the strengthening of right-wing populism in the form of hatred for race and religion in various parts of the world such as america, brazil, austria, hungary to france due to migrants’ migration from the middle east shows the phenomenon that reinforces the current of secularism in a reversal. based on the facts, this research argues that the total separation between religion and politics does not produce a secular society, but rather increases religious fundamentalism. 2.5. balancing indonesian religious people and state policy there are various discourses about how the actual pattern of religious and state relations in the indonesian context. this discourse began to surface when the reformation in 1998 was marked by suharto's resignation as president. one of the mandates of the reform is an amendment to the indonesian constitution. this is where the debate related to how the right relationship between religion and the state begins.58 however, the essence of the new debate that arises is the discourse among parties and islamic groups so as not to use democracy as a governance system.59 54 i believe in a god to whom one may pray in the expectation of receiving an answer. my answer, i mean more than the subjective, psychological effect of prayer. ibid. 55 ibid. 56 ibid., 256. 57 trisno s. sutanto, “pancasila dan persoalan kebebasan beragama atau berkeyakinan.” in hak atas kebebasan beragama atau berkeyakinan di indonesia, ed. alamsyah m. dja’far and atika nur’aini (jakarta: wahid foundation, 2016), 20. 58 carool kersten, berebut wacana pergulatan wacana umat islam indonesia era reformasi. bandung: mizan, 2018), 146. 59 ibid. rebalancing religious policy and the concept of public sphere: indonesia cases petrus richard sianturi, josua navirio pardede and septian dwi riadi 132 kersten also stated that, the emergence of a proposal for the indonesian constitution to refer to the madinah charter and not to the jakarta “may 22nd” charter which has an integral connection with the indonesian constitution. in addition, the emergence of community organizations such as the hizbut tahrir indonesia (hti) and the indonesian mujahidin council (mmi) calling for a return to the caliphate system, at least in the southeast asian region, made political debate among muslim intellectuals even more complicated, because alternative governments such as the caliphate system in question questioned the role of democracy. the role of democracy was never disputed among islamic political parties as at the beginning of indonesia's independence".60 according to luthfi assyaukanie in islam and the secular state in indonesia, stated that the interpretation of islamic political discourse in indonesia is part of the 'history of progress and transformation towards moderation'. assyaukanie investigated the philosophical foundations and limitations of the three models of democratic governance in indonesia, called the islamic democratic state (ndi), the religious democratic state (ndr) , and the liberal democratic state (ndl). in assyaukanie’s opinion, ndi has lost its foothold since the 1980s, the fall of the new order regime provides an opportunity for its bearers to try to reclaim their islamic demands according to law and constitution. what the ndi activists are fighting for, such as deliar noer (a former confidant of the masjumi leader) and yusril ihza mahendra (leader of the crescent star party) is to re -enter the seven words that were deleted in the jakarta charter in the amendment to article 29 of the indonesian constitution in 2002.61 however, due to the election 1999 the islamic people's party (pui), chaired by deliar noer, failed to reach the threshold, and other islamic parties such as the united development party and the crescent star party had no more than 12% (twelve percent) of parliamentary seats, so they failed to attract the support of other muslim parties affiliated with muhammadiyah and nu to pass seven words in the jakarta charter.62 meanwhile, the ndr considers it is no longer necessary to form a specific islamic government. he prefers to understand islam as a religion of morality that is a 'transcendental ethical value for human life, not as a political theory that advocates a certain form of statehood. 63 this model is based on the philosophy that religion is a vital element in communal life that does not have to be translated into a specific form of islamic government. the characteristic of this form is that it accepts pancasila as the sole principle in political life, but rejects secularism as an ideology. this model is quite popular among muslim leaders in indonesia, such as amien rais and ahmad syafii maarif from muhammadiyah and sahal mahfudh and ali yafie from nahdatul ulama.64 60 ibid. 61 luthfi assyaukanie, islam and the secular state in indonesia, (singapore: iseas, 2009), 185. 62 kersten, op.cit., 152. 63 assyaukanie, op.cit., 103. 64 ibid. udayana journal of law and culture vol. 5 no. 2, jul y 2021 133 while the ndl emphasizes the total separation between state and religion. this model began to be voiced by muslim intellectuals such as luthfi asyyaukanie, hamid basyaib, and ulil abshar abdalla who are members of the liberal islamic network (jil). for them, the principle of pluralism lies in the separation of the role of religion and the state. therefore, they oppose all forms of mixing between religion and the state, whether in the form of an islamic state campaign or re -adopting the jakarta charter, or all religious regulations which in this case allow the state to interfere in the religious life of muslims. the difference between the ndr and the ndl lies in the extent to which religion must play a role in politics and government.65 the main weakness of the ndr model is to leave certain contradictions and unresolved dilemmas in protecting the plurality of indonesian society.66 therefore, if the proponents of the religious state set aside the concept of secularization, those who are in favor of liberal democracy will not only accept secularization as an innate provision but also support secularization as a whole process.67 this is one of the main issues that this research has explained before. following casanova, secularization is defined as the separation of church and state, a fading of religion, and privatization of religion must now be reviewed. this research stands to consider that the thesis of the separation of religion and state must be replaced by the concept of functional differentiation between religious matters and authority with polit ical authority (state) in the public sphere. referring to kuntowijoyo's opinion that religious belief cannot be used simply as a basis for making or legitimizing public decisions, but it must first be translated into secular political reasoning, this is what is called religious objectification.68 the objectification of religion emphasizes the aspect that the subjective internal values of a religion must be concreted into an objective act, meaning that the religious values contained in an act are still inherent in the act, but the public, followers of any religion can carry out the act. without having to agree on the original values. the objectification of religion is important to avoid the dominance of certain religious teachings or total secularization in the public sphere so that an equilibrium relationship will be created between the influence of religion and secularism in the public sphere. budhy munawar-rachman, a muslim intellectual at driyakara school of philosophy in jakarta, said that rather than separate religion and the state in total, the functional differentiation offers a more appropriate formula as it plays a role to distinguish the institutionalized role of religion 65 ibid. 66 ibid., 155. 67 given an example in this issue is that those supporters of the liberal democracy do oppose in campaigning for an islamic state or re -adopting the late jakarta charter. but at the same time, to stick to their principle, they are also opposing religious -based regulations that essentially allow the state to interfere in life muslim. ibid., 156. 68 kuntowijoyo, selamat tinggal mitos selamat datang realitas, (bandung: mizan, 2002),213. rebalancing religious policy and the concept of public sphere: indonesia cases petrus richard sianturi, josua navirio pardede and septian dwi riadi 134 from the political function of the state. religion can still offer basic principles of sharia as a moral foundation for public policy, but its legislation itself must be a matter of public reasoning and subject to constitutional limits and universal human rights standards.69 in this case, aspects of religious determinants that ente r the space of legislation and law enforcement do not merely make indonesia a country based on one religion (theocracy), and restrictions do not also make it a secular state, but as an effort to balance the position of religion in the public domain. the consequences will certainly be much different from the existence of the antiblasphemy law which tries to construct the religious life of the community, causing a legal gap in enforcement that allows for acts of intolerance due to the inability to understand the conditions that occur in indonesian society. 3. conclusion social dynamics in indonesia today has led to the emergence of various form of attempts to manipulate information related to religious truth in the public sphere, this situation is supported by the existence of the other social components, particularly from the juridical realm, namely the existence of the anti-blasphemy law. even though, to guarantee a balanced and beneficial relationship between religious matters and society’s life in the public sphere, every effort in placing religion in such public sphere should be based on: first, knowing the interdependency relation among them and second, as a part of the first point, the way to fix the problems should also result from an interdependency solution. all in all, this research found that the urgency of the revocation of the current anti-blasphemy as it failed to distinguish between private and public matters of the society. the law has increased social problems in society. this research, therefore, recommends the creation of a new law and all derived policies which relate to the religious practice of the society in the public sphere through a concept of functional differentiation. in practice, there is a draft law on the protection of inter -religious harmony. this law will just be beneficial to society if it is placed in a balanced form of substance and procedure. the law should also address the interdependency problems among the issue. bibliography book adji, oemar seno. perkembangan hukum pid ana d an hukum acara pid ana sekarang dan di masa jang akan datang. jakarta: pantjuran tujuh, 1984. assyaukanie, luthfi. islam and the secular s tate in indonesia. singapore: iseas, 2009. badan nasional penanggulangan terorisme. social media dissemination index. jakarta: badan nasional penanggulangan terrorism, 2019. 69 budhy munawar-rachman. reorientasi pembaruan islam: sekularisme, liberalisme, pluralisme, paradigma baru 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https://www.beritasatu.com/nasional/670519/ylbhi-januarimei-2020-terjadi-38-kasus-penodaan-agama https://news.detik.com/berita/d-3315203/soal-al-maidah-51-ahok-saya-tak-berniat-melecehkan-ayat-suci-alquran https://news.detik.com/berita/d-3315203/soal-al-maidah-51-ahok-saya-tak-berniat-melecehkan-ayat-suci-alquran http://teknopreneur.com/ http://www.loc.gov/law/foreign-news/article/indonesia-constitutional-courtopens-way-to-recognition-of-native-faiths/ http://www.loc.gov/law/foreign-news/article/indonesia-constitutional-courtopens-way-to-recognition-of-native-faiths/ http://www.loc.gov/law/foreign-news/article/indonesia-constitutional-courtopens-way-to-recognition-of-native-faiths/ https://kontras.org/2012/07/16/peradilan-sesat-tajul-muluk/ http://kominfo.go.id/ http://kominfo.go.id/ https://pgi.or.id/ http://www.firstthings.com/article/2008/02%20/002-secularization-falsified https://indoprogress.com/2011/03/nalar-fundamentalisme-agama-di-ruang-publik1/ https://indoprogress.com/2011/03/nalar-fundamentalisme-agama-di-ruang-publik1/ https://nasional.tempo.co/read/672566/begini-perjalananmetamorfosa-lia-eden https://nasional.tempo.co/read/672566/begini-perjalananmetamorfosa-lia-eden http://wahidfoundation.org/ e-issn 2549-0680 vol. 6, no. 2, july 2022, pp. 184-203 doi: https://doi.org/10.24843/ujlc.2022.v06.i02.p04 this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licenses/by/4.0/) 184 ownership of medical records in indonesia: discourse on legal certainty and justice ambar dwi erawati* medical informatics study program, widya husada semarang university, semarang, indonesia hargianti dini iswandari** medical informatics study program, widya husada semarang university, semarang, indonesia abstract medical disputes between patients and health workers place medical records as a vital document for evidentiary in a court proceeding. the existing law and regulations in indonesia determine that the medical record file is owned by the health service facility, while the patient receives a summary of the medical record. this study aims to analyze medical record ownership in indonesia from perspectives of legal certainty and justice. this article reflects normative juridical research that explores relevant primary and secondary legal materials to be analyzed deductively. this article concluded that the obligation of health workers to make medical records in proving that they have delivered properly a health service as stipulated in the law and regulations reflects a legal certainty. however, laws and regulations governing the ownership of medical records seem not to fully reflect the principle of justice since medical record files are owned by doctors, dentists, or health service facilities. even though patients/health service recipients are entitled to requesting the files from health care facilities, the sense of justice for the patients would be in the form of easy procedures for obtaining medical records. keywords: certainty; health law; indonesia; justice; medical records. 1. introduction the number of medical malpractice cases in indonesia in recent years has gradually raised the awareness of society regarding the importance of medical records. to prevent such malpractice cases, some people ask health workers and health service facilities to deliver their medical records. these medical records are usually kept for their document, while some others transmit the information contained in the records to their relatives and friends for a “second opinion.”1 determining whether a medical action meets the element of malpractice is not an easy task. the allegation of medical malpractice must be examined by collecting facts and evidence to be further assessed for its compliance with standard operating procedures, health workers‟ code of ethics, and * email/corresponding author: ambar.dwi@uwhs.ac.id and ambarerawati@gmail.com ** email : dini_iswandari@uwhs.ac.id and hargianti.dini@gmail.com 1 term „second opinion‟ is commonly used in indonesia, refers to a non-binding opinion delivered by health workers who are asked for opinion and advice. see also decision of the supreme court no. 21p/hum/2011 (judicial review on regulation of minister of health no. 269 /menkes/iii/2008 concerning medical records), 13. https://doi.org/10.24843/ujlc.2022.v06.i02.p04 http://creativecommons.org/licenses/by/4.0/ mailto:ambar.dwi@uwhs.ac.id mailto:ambarerawati@gmail.com mailto:dini_iswandari@uwhs.ac.id mailto:hargianti.dini@gmail.com ownership of medical records in indonesia: discourse on legal certainty and justice ambar dwi erawati, hargianti dini iswandari 185 regulations. the regulations on health and health professionals seem to indicate that health workers and health care facilities are, on one hand, easily touchable by the law, but on the other hand, potentially forgiven by the law.2 in case a doctor is suspected of committing malpractice, he/she cannot be held responsible for civil, public, and criminal responsibility if according to medical standards, his/her medical actions were proper, even though the consequences may cause harm.3 in indonesia, the term „medical malpractice‟ refers to medical negligence or professional negligence. 4 in medical malpractice cases, the doctrine res ipsa which means siding with the victim loquitur is often used. this doctrine accepts a kind of circumstantial evidence, which is evidence about a fact that can be used to draw conclusions. the evidentiary process in civil procedural law determines that the victim of an unlawful act in the form of negligence does not need to prove the existence of the element of negligence, as they can only show the facts. the goal is to achieve justice.5 the dissatisfaction or harm suffered by the patient after receiving health services that are allegedly caused by medical malpractice may lead to legal matters. in general, health workers and patients are encouraged to settle the problem by deliberation, mediation, or any other non-judicial mechanism.6 however, some cases showed that they are settled before the court. generally, malpractice is classified as a civil case, where the patient as the plaintiff filed a lawsuit before the court. as long as the regulations do not require it, providers may not wish to risk recording information that could later be used to show or imply negligence. 7 however, if a health worker‟s professional care falls below standards of negligence and reaches recklessness or intentional misconduct, there is a potential for criminal liability.8 in this context, the medical record has its relevance as it can be used as one written piece of evidence in court.9 in a civil judiciary proceeding, the medical record becomes a primary document to prove the elements of negligence. in criminal judiciary proceedings, it plays a vital role as it assists investigators in discovering crimes in case of criminal allegation as a 2 sandra dini febri aristya, “pembuktian perdata dalam kasus malpraktik di yogyakarta,” mimbar hukum, special edition (2011): 181. 3 ibid. 4 bambang heryanto, “malpraktik dokter dalam perspektif hukum,” jurnal dinamika hukum 10, no. 2 (2010): 184-185. 5 ibid., 187. 6 see public relations universitas gadjah mada /agung, “konflik dokter dan pasien wajib gunakan mediasi,” 2015. https://ugm.ac.id/id/berita/10262-konflik-dokter-danpasien-wajib-gunakan-mediasi. 7 yuju wu, et.al., “using standardised patients to assess the quality of medical records: an application and evidence from rural china,” bmj quality & safety 29, no.6 (2020): 496. 8 jack bernstein, injury attorneys, “is medical malpractice a civil case or a criminal case?,” 2021. https://bernsteininjurylaw.com/blog/medical-malpractice-civilcase-vs-criminal-case/. 9 medical record manual of the indonesian medical council of 2006, chapter iii.f https://ugm.ac.id/id/berita/10262-konflik-dokter-dan-pasien-wajib-gunakan-mediasi https://ugm.ac.id/id/berita/10262-konflik-dokter-dan-pasien-wajib-gunakan-mediasi https://bernsteininjurylaw.com/blog/medical-malpractice-civil-case-vs-criminal-case/ https://bernsteininjurylaw.com/blog/medical-malpractice-civil-case-vs-criminal-case/ udayana journal of law and culture vol. 6 no. 2, july 2022 186 medical record is classified as documentary evidence. 10 the fact is, the patient usually receives a resume of the medical treatment because the complete information belongs to health care facilities confidentially. therefore, the patient does not have strong evidence to be presented before the court proceeding. method of documentation of all medical treatment becomes more and more important. as an example, documentation of patient centered care (pcc) involves treating the patient as a whole person and engaging the patient in their care. the pcc, among others, influences satisfaction with treatment, greater satisfaction with the provider and clinic, and less decisional conflict for patients.11 a medical recorder has competencies, one of which is the management of health data and information, utilization of data and information to support health services, and use of health information systems in health data management.12 since 1989, medical recorders in indonesia established the indonesian association of medical record professionals and health information (perhimpunan profesional perekam medis dan informasi kesehatan indonesia).13 this association has a strategic position because its recommendations are required in applying for a medical recorder work permit. 14 in addition, this association is involved by the central and regional governments in conducting guidance and supervision of the work of medical recorders.15 these guidance and supervision works include the authority of imposing administrative sanctions on medical recorders who violate the provisions on the implementation of medical recorder work, in the form of verbal warnings, written warnings, and/or revocation of medical recorder work permit.16 research conducted by irmawati, et.al. reveals that some 12% of doctors in indonesia do not sign their medical records, 17 while wirajaya et.al. discover that 85,78% of doctors in indonesia do not complete medical records. 18 studies suggested that factors influencing incompleteness in making medical records are the lack of discipline of doctors, nurses, or 10 rachmad abduh, “kajian hukum rekam medis sebagai alat bukti malapraktik medis,” de lega lata 6, no. 1 (2020): 223. 11 jorie m. butler, et.al., “clinician documentation of patient-centered care in the electronic health record, “bmc medical informatics and decision making 22, no. 1 (2022): 2. 12 decree of minister of health no. hk.01.07/menkes/312/2020 concerning professional standards for medical recorders and health information,” attachment, chapter iii, 16. 13 indonesian association of medical record professionals and health information, “sejarah pormiki”, https://pormiki.or.id/sejarah-terbentuknya-pormiki/. 14 regulation of minister of health no. 55 of 2013 concerning the implementation of medical recorder work, art. 7 (1)(g). 15 ibid., art. 19 (1). 16 ibid., art. 21. 17 irmawati irmawati, et.al., “quantitative analysis of medical records of inpatients in ward mawar ungaran hospital,” jurnal rekam medis dan informasi kesehatan 1, no. 1 (2018): 11. 18 made karma maha wiraja and ni made umi kartika dewi, “analisis ketidaklengkapan rekam medis pasien rawat inap di rumah sakit dharma kerti tabanan,” jurnal administrasi rumah sakit 6, no. 1 (2019): 18. https://pormiki.or.id/sejarah-terbentuknya-pormiki/ ownership of medical records in indonesia: discourse on legal certainty and justice ambar dwi erawati, hargianti dini iswandari 187 midwives, lack of evaluation, human resources, procedural aspects, tools, and motivation.19 research by bambang heryanto suggested that doctors can be held accountable for malpractice cases that harm patients because of unlawful acts, namely contrary to the legal obligations of the perpetrator; against the subjective rights of others; or against the rules of decency (morality); or contrary to propriety, thoroughness, and prudence.20 the use of medical records as an evidentiary document in legal proceedings entails that the ownership of medical records then becomes a central issue. the applicable law and regulations in indonesia determine that the file of medical record belongs to the health care facility, while the patient is given a summary of the medical record.21 a legal system is a set of components that work together to achieve a common goal (systems are made up of sets of components that work together for the overall objective of the whole).22 in general, the law aims to achieve justice, certainty, and utility. 23 therefore, this article aims to analyze the ownership of medical records in indonesia from the perspective of legal certainty and justice. this article applies juridical normative research that uses secondary data which consists of primary and secondary legal materials. primary legal materials used in this research are indonesian law and regulations; international legal documents; and manuals and guidelines from health organizations/associations. secondary legal materials refer to books, journal articles, and other sources related to legal science, health law, and medical record. those legal materials are analyzed using the deductive method. 2. result and analysis 2.1. international concern on medical records the right and access to medical records have already become an international concern. the world health organization (who), a united nations specialized agency,24 adopted some documents related to medical 19 see for example nurhaidah, thontowi djauhari and tatong harijanto, “faktorfaktor penyebab ketidaklengkapan pengisian rekam medis rawat inap di rumah sakit universitas muhammadiyah malang,” jurnal kedokteran brawijaya 29, no. 3 (2016): 260; selvia juwita swari, et.al., “analisis kelengkapan pengisian berkas rekam medis pasien rawat inap rsup dr. kariadi semarang,” arteri : jurnal ilmu kesehatan 1, no. 1 (2019): 50. 20 heryanto, op.cit., 186, 191. 21 regulation of minister of health no. 269 of 2008 concerning medical records, art.12 (1-3). 22 see explanation of c. west churman in mustafa bachsan, integrated indonesian legal system ii. bandung: citra aditya bakti, 2016, 41. 23 judicial commission of the republic of indonesia, eka putra and festy, “penegakan hukum wujudkan keadilan, kepastian, dan kemanfaatan hukum,” 2017. https://www.komisiyudisial.go.id/frontend/news_detail/514/penegakan-hukumwujudkan-keadilan-kepastian-dan-kemanfaatan-hukum. 24 constitution of the world health organization, preamble. available in basic documents: forty-ninth edition (including amendments adopted up to 31 may 2019). geneva: world health organization, 2020. https://www.komisiyudisial.go.id/frontend/news_detail/514/penegakan-hukum-wujudkan-keadilan-kepastian-dan-kemanfaatan-hukum https://www.komisiyudisial.go.id/frontend/news_detail/514/penegakan-hukum-wujudkan-keadilan-kepastian-dan-kemanfaatan-hukum udayana journal of law and culture vol. 6 no. 2, july 2022 188 records. in 1980, it released a document titled “guidelines for medical record practice.” the guidelines admit that medical records are an essential component in the effective management of a patient's health care that contains the information needed to plan, provide, and evaluate the care given to the individual. the guidelines was created to serve as a tool for communicating information to all the health personnel who deal with the patient, and it contributes to the continuity of patient care.25 in 2002, the who issued a medical records manual a guide for developing countries that aims to help medical/health record workers, particularly clerical staff with a basic understanding of medical/health record procedures, in developing countries in developing and managing the medical record/health information service in an effective and efficient manner.26 recently, the who adopted a global patient safety action plan 2021– 2030: towards eliminating avoidable harm in health care, that covers the issue of medical records. the action plan expected three partners, namely the government, health care facilities and services, and stakeholders to take action towards eliminating avoidable harm in health care. actions expected from those three partners can be described in table 1. table 1 expected actions from partners regarding medical record towards eliminating avoidable harm in health care27 partners in action actions government 1. develop national guidelines for patient access to their medical records. 2. strengthen synergies and data-sharing channels between sources of patient safety information for timely action and intervention, such as malpractice claims and medical record reviews. 3. promote and support the digitization of health care processes such as medical records, electronic prescribing, and clinical decision support systems with due consideration to interoperability of digital solutions. health care facilities and services 1. promote transparency with patients; ensure that patients have access to their medical records. 2. standardize formats for patient records in primary and ambulatory care, supported by electronic health records. 3. develop procedures around the provisions of the national charter or bill, including access to medical records and full disclosure of adverse events. 4. develop institutional policies for patient access to their medical records. stakeholders28 raise awareness about the right to access medical records. 25 world health organization. division of epidemiological surveillance and health situation and trend assessment. “guidelines for medical record practice.” world health organization, 1980, https://apps.who.int/iris/handle/10665/59341, 7. 26 the world health organization, “medical records manual: a guide for developing countries, revised and update version, (manila: western pacific region, 2006), 1. 27 world health organization, “global patient safety action plan 2021–2030: towards eliminating avoidable harm in health care.” geneva: world health organization, 2021, 26-61. https://apps.who.int/iris/handle/10665/59341 ownership of medical records in indonesia: discourse on legal certainty and justice ambar dwi erawati, hargianti dini iswandari 189 table 1 describes expected actions from government, health care facilities and services, and stakeholders regarding medical records as laid down in the who global patient safety action plan 2021–2030. the action plan emphasizes all three partners take action on the issue of patients‟ access to their medical records. it also encourages both government and health care facilities and services to work on digitization of health care processes and emr. the international concern on rights and access to medical records may also be analyzed from human rights perspectives. the committee on economic, social, and cultural rights issued general comment no. 14 which elaborates on information accessibility. it emphasizes that “accessibility includes the right to seek, receive and impart information and ideas concerning health issues. however, accessibility of information should not impair the right to have personal health data treated with confidentiality.”29 the relationship between patient and provider rights is critical. it is difficult for providers to provide high-quality treatment if their rights are not respected and if they cannot work in proper conditions with professional independence. there are many examples of health providers who have been punished for providing evidence-based health care to their patients, ordered to destroy medical records, or disclose confidential health information to the state.30 there are two common types of human rights violations that may relate to medical information. first, limiting or denying information related to an individual medical treatment to effectuate the policy or practice of the state or other third party; second, disclosing confidential information of a patient to state authorities or other third parties in circumstances that violate human rights.31 2.2. obligations of health workers to make medical records reflect legal certainty it is a constitutional guarantee for all indonesian citizens to enjoy an equitable legal certainty.32 legal certainty refers to a clear, consistent, and decisive situation that is recognized under the legal rules.33 certainty may also be understood as a court decision in a specific case. 34 the medical 28 stakeholders comprises of nongovernmental organizations, patients and patient organizations, professional bodies and scientific associations and societies, academic and research institutions, and civil society organizations. see ibid., v and 6. 29 committee on economic, social, and cultural rights, general comment no. 14: the right to the highest attainable standard of health (art. 12) adopted at the twentysecond session of the committee on economic, social and cultural rights, on 11 august 2000 (contained in document e/c.12/2000/4), para. 12.b. 30 jonathan cohen and tamar ezer, “human rights in patient care: a theoretical and practical framework,” health and human rights 15, no. 2 (2013): 8. 31 ibid., 9. 32 the 1945 constitution of the republic of indonesia, art. 28 d(1). 33 see wicaksono, op.cit., 10. 34 see for example, richard huxtable and giles birchley, “seeking certainty? judicial approaches to the (non-) treatment of minimally conscious patients,” medical law review 25, no. 3 (2017): 434-435. udayana journal of law and culture vol. 6 no. 2, july 2022 190 record represents a minimum service standard in the health sector,35 and therefore becomes an instrument in ensuring legal certainty for patients in receiving health services delivered by health workers. the medical record manual issued by the indonesian medical council in 2006 admits two definitions of a medical record. on one hand, the explanation of article 46 (1) of the medical practice law defines it as a file containing notes and documents about patient identity, examination, treatment, action, and other services provided to patients. on the other hand, regulation of minister of health no. 269/menkes/per/iii/2008 concerning medical records (minister of health regulation on medical records) defines it as a file containing records and documents about the patient's identity, examination, treatment, action, and other services to patients in health care facilities. from these definitions, it shows definition in medical practice law has a broader meaning as medical record applies both to health facilities and outside health facilities while the definition given by the minister of health only emphasizes medical record in health service facilities.36 the medical record includes both notes and documents. note, is a description of the patient's identity, examination patients, diagnosis, treatment, action, and other services are well performed by doctors and dentists as well as health workers others according to their competence. the document is the completeness of the note, including x-rays, laboratory results and other information in accordance with scientific competence.37 medical records can be distinguished into conventional medical records and electronic medical records (emr).38 the manual specifically determines that the medical record of outpatient must contain at least the patient's identity, physical examination, diagnosis/problem, action/treatment, and other services that have been provided to the patient.39 these contents similarly apply to inpatients, but in addition, they must include approval of medical action (if needed).40 in principle, doctors and dentists make/fill out medical records. however, other health workers who provide direct services to patients can carry out these duties as long as they are given a written delegation from the doctors and dentists.41 in the legal context, one of the benefits of medical records is that they can be used as the main written evidence in resolving legal, disciplinary, and ethical issues.42 law and regulations in indonesia underline the obligation of health workers to make medical records. law no. 29 of 2004 concerning medical practice (medical practice law) determines that every doctor or dentist is 35 see elucidation, regulation of minister of health no. 4 of 2019 concerning technical standards for the fulfillment of basic services quality in minimal service standards in health sector, 38, 45, 123. 36 medical record manual of the indonesian medical council of 2016, chapter ii.a. 37 ibid., chapter ii.b. 38 ibid., chapter ii.c. 39 ibid., chapter iv.a. 40 ibid., chapter iv.b. 41 ibid., chapter iv.c. 42 ibid., chapter iii.f. ownership of medical records in indonesia: discourse on legal certainty and justice ambar dwi erawati, hargianti dini iswandari 191 obliged to make a medical record that must be completed immediately after the patient has finished receiving health services. such a medical record must be affixed with the name, time, and signature of the officer providing the service or action.43 in addition, this law covers criminal punishment. article 79 of medical practice law mentions that a doctor or a dentist who intentionally does not make medical records may be sentenced to a maximum imprisonment of 1 (one) year or a maximum fine of idr 50,000,000.00 (fifty million rupiah). however, the medical practice law does not regulate a sanction for doctor or dentist who does not make an incomplete medical record. reiterating the wordings of the provisions contained in medical practice law, the later law no. 36 of 2014 concerning health workers (health worker law) also obliged health workers to make a medical record that must be completed immediately after the patient has finished receiving health services, which includes the name, time, and signature of the officer providing the service or action.44 the health worker law makes clear that medical records must be kept confidential by health workers and head of health service facilities.45 both nurses and midwives are capable of making documentation for their nursing and midwife activities. 46 law no. 38 of 2018 concerning nursing (nursing law) requires nurses to carry out nursing documentation in accordance with standards.47 as a measuring tool and a guide to the ability of nurses, one of them is to carry out nursing documentation contained in the nursing profession standards.48 the nurse's obligation to do documentation is strengthened by the patient's right to receive services in accordance with the code of ethics, nursing service standards, professional standards, standard operating procedures, and provisions of laws and regulations.49 in midwifery practice, law no. 4 of 2019 concerning midwifery (midwifery law) determines that a client has the right to obtain correct and clear information about his/her health. if needed, the information may include a resume of the contents of the medical record, which is a summary of information containing records of midwifery care and midwifery services that have been provided by the midwife to the client.50 43 law no. 29 of 2004 concerning medical practice, art 46 (1-3). 44 law no. 36 of 2014 concerning health workers, art. 70 (1), (2), and (3). 45 ibid., art. 70 (4). 46 ministry of health republic of indonesia, nursing professional standards, 2013, 17 and decree of ministry of health no. hk.01.07/menkes/320/2020 concerning midwife professional standards, 3. 47 ibid., art 37 (d). 48 decree of minister of health no hk.01.07/menkes/425/2020 concerning nurse professional standard, 17. 49 law no. 38 of 2014 concerning nursing, art. 38 (c). 50 law no. 4 of 2019 concerning midwifery, art. 62 (b) and its explanation. udayana journal of law and culture vol. 6 no. 2, july 2022 192 minister of health regulation on medical records indirectly regulates the patient's rights to the contents of the medical record, even though it is in the form of a summary of the medical record.51 there are different sanctions given to health workers who do not make medical records. the law on health workers states that the sanctions imposed on health workers who do not make medical records or make medical records but are incomplete will receive an administrative sanction.52 the medical law provides criminal sanctions and fines for doctors or dentists who do not make complete medical records.53 in contrast to the nursing act and the midwifery act, it does not impose sanctions on nurses or midwives who do not do documentation. the health workers law regulates more general aspects of health workers, rather than regulating specific aspects. therefore, health workers law is considered more general than the medical practice law, nursing law, and midwifery law. to deal with the different sanctions for health workers who do not make correct medical records as stipulated in those laws, the principle of lex specialis derogat legi generali applies.54 according to bagir manan, several aspects must be taken into consideration in applying this principle. first, the provisions of general laws rules remain in effect, except those specifically regulated in special law; second, the general law and the specific law must be in the same degree; and third, the general law and the specific law must be in the same legal regime/field.55 therefore, considering the medical practice law, the nursing law, and the midwifery law are special laws, then the sanctions should refer to each of these laws, rather than health worker law.56 2.3. medical record ownership in indonesia: perspective of justice article 8 law no. 36 of 2009 concerning health uses the generic term „data‟ rather than „medical record‟. it determines that everyone has the right to obtain information about his/her own health data including actions and treatments that have been received or will be received from health workers. the explicit and specific rules regarding the ownership of medical records generally can be found in some other law and regulations. the health worker law makes clear that medical records are the property of the health service facility,57 however, health service recipients may request a 51 regulation of minister of health no. 269 of 2008 concerning medical records, art. 14 (2-3). 52 law no. 36 of 2014 concerning health workers, art. 82. (1). 53 ibid., art. 79 (b). 54 harif fadhillah, endang wahyati, and budi sarwo, “pengaturan tentang tenaga kesehatan dalam peraturan perundang-undangan dan azas kepastian hukum,” soepra jurnal hukum kesehatan 5, no. 1 (2019): 147. 55 bagir manan. hukum positif indonesia: suatu kajian teoritik. yogyakarta: fh uii press, 2004, 56. 56 for this analysis, see decision of the constitutional court no. 82/puu-xiii/2015, para 2.5. 57 law no. 36 of 2014 concerning health workers, art. 71 (1). ownership of medical records in indonesia: discourse on legal certainty and justice ambar dwi erawati, hargianti dini iswandari 193 resume of medical records from that facility. 58 medical practice law regulates that medical record documents belong to doctors, dentists, or health care facilities, while the contents of the records belong to the patient. 59 the law emphasizes that medical records must be kept confidential by doctors or dentists and leaders of health service facilities.60 further, article 12 (1) of the minister of health regulation on medical records determines that medical record files are the property of health service facilities. paragraph (2) of that article explicitly mentions that the „content of the medical record belongs to the patient. paragraph (3) then makes clear that the „content of the medical record‟ is in form of a medical record summary (medical resume). lastly, article 12 (4) specifies that a medical record summary can be given, noted, or copied by the patient or person who is authorized or with the written consent of the patient or patient's family who is entitled to it. 61 the provisions regarding the ownership of medical records in this ministerial regulation have been judicially reviewed before the indonesian supreme court.62 the petitioner argued that article 12 (3) and (4) of the minister of health regulation on medical records must be declared null and void.63 against this petition, the minister of health, as respondent, replied that the petitioner's request to revoke those provisions is counterproductive and eliminates the patient's right to obtain medical records.64 besides, the minister clarified that the term „summary/resume‟ should not be interpreted as limiting and reducing the patient's rights because if the patient needs it, his/her right to access the entire contents of the medical record documentation from the beginning to the end of the health service process is fully guaranteed.65 further, the minister explained that the term „summary/resume‟ implies simplification of the language of the contents of medical record documents to ease the understanding for patients and their families because if medical language is used, it will be relatively difficult for ordinary patients to understand. 66 finally, the indonesian supreme court rejected the judicial review petition, considering that the ministerial regulation provisions being reviewed before this court are further explanations of article 47 of the medical practice law.67 as previously discussed in section 2.3, the right to keep the medical record files belongs to the health care facility, but health workers and health service facilities are obliged to keep the confidential information contained in 58 ibid., art. 1 (18) and art. 71 (2). 59 law no. 29 of 2004 concerning medical practice, art. 47 (1). 60 ibid., art. 47 (2). 61 regulation of minister of health no. 269 of 2008 concerning medical records, art. 12. 62 one out of four authorities of the constitutional court is to examine, at the first and final level, the judicial review a law against the 1945 constitution of the republic of indonesia. see luthfi widagdo eddyono, “the constitutional court and consolidation of democracy in indonesia,” jurnal konstitusi 15, no. 1 (2018): 5. 63 decision of the supreme court no. 21p/hum/2011, op.cit., 4. 64 ibid., 13, 14. 65 ibid., 13. 66 ibid. 67 ibid., 17, 18. udayana journal of law and culture vol. 6 no. 2, july 2022 194 the medical record.68 the contents of the patient mean that the contents of the medical record are the rights of the patient. the content of medical records only refers to its summary creating the perception that this regulation only favors doctors.69 the health care provider is sworn to keep the confidentiality of the data of the patient unless asked by the court to discover it. this means that the content of the medical record is something that is written in the medical record. based on this, the patient should get all of the contents of the medical record. the patient is a dignified human being so he has autonomy over himself. on the basis of their right to autonomy, only the patient can determine what is best for him. this includes determining when it is appropriate to disclose personal and sensitive health information, to whom the information will be provided, and how much information will be provided to the desired party.70 by being given a special password to be able to access electronic medical records, patients will be able to view medical records without having to change them. patients have the right to determine what is best for themselves, and when and with whom to disclose their medical secrets. from a philosophical perspective, john rawls argues justice has two main interests, namely to guarantee the stability of human life and to balance private life and public life. the ideal structure of a just society is the basic structure of the original society, where basic rights, freedoms, power, authority, opportunities, income, and welfare are fulfilled. 71 plato reveals that a problem requires regulation with laws that reflect justice. the law is not only to maintain order and the stability of the country but also must be able to guide people to become good citizens. 72 legislation which is a manifestation of legal norms essentially has a legal purpose for the sake of justice. the loss of a norm in the formation of legal products will allow the loss of a citizen's constitution. for this reason, the law must be made or formulated fairly so that there are legal products containing the value of social justice that fulfill the basic rights of citizens. 73 social justice has become the nation's constitution as stated in the fifth precept of social justice for all indonesian people. the characteristics of pancasila-based 68 see law no. 36 of 2014 concerning health workers, art. 70 (4); law no. 38 of 2014 concerning nursing, art. 38 (e); law no. 4 of 2019 concerning midwifery, art. 61 (f). 69 regulation of minister of health no. 269 of 2008 concerning medical records, art. 12 (3). 70 anggra yudha ramadianto, “aspek filosofis moral dan hukum kewajiban menyimpan rahasia medis pasien sebagai objek perikatan (prestasi) dalam kontrak terapeutik,” simbur cahaya 22, no. 3 (2017): 4906. 71 muchamad ali safa‟at, “pemikiran keadilan (plato, aristoteles, john rawls),” http://www.safaat.lecture.ub.ac.id/files/2011/12/keadilan.pdf 72 bahder johan nasution, “kajian filosofis tentang konsep keadilan dari pemikiran klasik sampai pemikiran modern,” yustisia jurnal hukum 3, no. 2 (2014): 7. 73 rudiansyah putra sinaga, “the urgency of legal policy to fulfill the constitutional rights to employment social security for vulnerable workers in the national social security system,” jurnal hukumtora: hukum untuk mengatur dan melindungi masyarakat 7, no. 3 (2021): 489. http://www.safaat.lecture.ub.ac.id/files/2011/12/keadilan.pdf ownership of medical records in indonesia: discourse on legal certainty and justice ambar dwi erawati, hargianti dini iswandari 195 justice, namely humanizing humans in a fair and civilized manner according to their human rights.74 fairness will be achieved when there is a balance of rights and obligations between health workers and patients. to achieve this aim, there are some issues to be taken into consideration. on one hand, health workers and health care facilities should adopt and implement strict mechanisms and procedures that ensure the confidentiality of patients‟ medical records. in particular, health workers should carry out health services with a high level of integrity, according to what have they sworn, and comply with procedures and professional standards. this is expected to build the trust of the patients. on the other hand, patients or their legal representatives are provided with the disclosure of medical records before the patient‟s discharge, given the fact that the entire contents of the medical record are patients‟ property even though what is given is only its summary. justice, as one of the goals of the creation of law, cannot be easily defined. while it is considered to differ from equalizing or getting an equal share, justice may be described as a mutual feeling that is related amongst human beings and may be reflected in the expression of the ideals of society.75 the principle of justice has traditionally been understood as the fair distribution of burdens and benefits,76 while it was further developed into some concepts, e.g. restorative justice, 77 which will be further elaborated in section 2.4. the current regulation states that medical records are the property of health facilities, doctors, or dentists, while patients only get a summary of medical records which does not reflect justice. patients do not have the right to obtain complete health data, even though health workers or health service facilities will keep patient data confidential. for patients, the meaning of justice is not only the guarantee of the confidentiality of their medical records but also the easy procedures of obtaining such records. this easy procedure would enable patients to choose further medical treatment, including, for example, seeking a second opinion or continuing medical treatment at different medical care services. 2.4. the upcoming future of telemedicine-based medical record and method for resolving a medical dispute in the current digitalization era, medical records in electronic form seem to be promising. electronic medical record (emr) is an electronic 74 ferry irawan febriansyah, “keadilan berdasarkan pancasila sebagai dasar filosofis dan ideologis bangsa,” dih jurnal ilmu hukum 13, no. 25 (2017): 9. 75 see raden mas try ananto djoko wicaksono, “reviewing legal justice, certainty, and legal expediency in government regulation number 24 of 2018 concerning electronically integrated business services,” lex scientia law review 5, no. 1 (2021): 5-6. 76 bridget pratt, et.al., “justice: a key consideration in health policy and systems research ethics,” bmj global health 5, no.4 (2020): 1-2. 77 see for example markus y. hage and panggih kusuma ningrum, “corrective justice and its significance on the private law,” journal of indonesian legal studies 7 no.1 (2022): 6-16. udayana journal of law and culture vol. 6 no. 2, july 2022 196 version of patients‟ health records that can be used for input, storage, display, retrieval, and sharing of information.78 in other countries like the united states (us), an emr has been developed that can be used to reduce the risk of error and minimize the risk of prosecution.79 the use of emr provides advantages, i.e. providing certainty of health information when requiring separate health services and responding to the challenges of changing clinical and administrative processes. 80 emr prevents the possibility of lost documents, changes in data, and falsification of patient treatment history. with regard to access to information, emr enables patients to access their medical records with a special password without being able to change the information contained. the medical record becomes one of the issues in the current trend of telemedicine, a remote health service provided by a healthcare professional that uses information and communication technology.81 the corona virus disease 2019 (covid-19) makes telemedicine becomes more important. responding to this global matter, both minister of health and the indonesian medicine council issued documents on the same day 29 april 2020. the minister of health issued a circular letter to be used as a reference in providing health services through telemedicine. regarding medical records used for telemedicine, this circular letter determines that the results of telemedicine services are recorded in digital or manual records served as medical record documents.82 these documents are the doctor's responsibility, must be kept confidential, and used in accordance with the provisions of laws and regulations. 83 in addition, the circular also determines that copies of electronic prescriptions must be kept in printed and/or electronic form as part of the medical record document.84 in line with the minister of health‟s circular letter, the indonesian medical council also issued a regulation that requires doctors and dentists who practice telemedicine to make medical records, which can be in the form of manual medical records in written form or electronic medical records in the form of 78 michelle helena van velthoven, et.al., “feasibility of extracting data from electronic medical records for research: an international comparative study, “bmc medical informatics and decision making 16 (2016): 1. 79 venkataraman palabindala, amaleswari pamarthy, and nageshwar reddy jonnalagadda, “adoption of electronic health records and barriers,” journal of community hospital internal medicine perspectives 6, no. 5 (2016): 3. 80 brent a. williams, et.al., “establishing a national cardiovascular disease surveillance system in the united states using electronic health record data: key strengths and limitations,” journal of the american heart association 11, no. 8 (2022): 1. 81 regulation of minister of health no. 20 of 2019 concerning the implementation of telemedicine services between health service facilities in indonesia, art. 1 (1). 82 circular letter of minister of health no. hk.02.01/menkes/303/2020 concerning the implementation of health services through the utilization of information and communication technology to prevent the spreading of corona virus 2019 disease, 4. 83 ibid. 84 ibid., 6. ownership of medical records in indonesia: discourse on legal certainty and justice ambar dwi erawati, hargianti dini iswandari 197 transcripts for each patient, to be further filed in health service facilities in accordance with the statutory provisions.85 the presidential staff officer assessed some loopholes in the implementation of telemedicine as regulated in the minister of health‟s regulation and decree, such as guarantees for private data protection, the confidentiality of integrated medical records between health facilities, and legal protection, especially for medical personnel who provide services. the government plans to adopt smart regulations to keep pace with the rapid development of technology and innovation, especially with regard to health services through telemedicine, which are basically internet-based. the government is also concerned that the need for legal protection will increase along with the use of telemedicine, thus it is necessary to be prepared to deal with cases of ethics, malpractice, fraud, and moral hazard both from the side of the patient and the doctor.86 as previously discussed in section 1 and section 2.3, medical records are generally used as an evidentiary document for medical disputes that are settled before the court. referring to law no. 11 of 2008 concerning information and electronic transactions, medical records that are part of electronic information and/or electronic documents and/or the printout version of a medical record may be classified as, in an extension meaning, legitimate legal evidence according to the applicable procedural law in indonesia. 87 even though a court must be regarded as the ultimate institution to ensure justice for all disputed parties, not everyone can sense justice from the court's decision.88 in this context, it would be relevant to consider the idea of edward omar sharif hiariej, vice minister of law and human rights, who proposes the need to bring restorative justice in medical disputes. he explained that restorative justice is a form of approach to resolve cases according to criminal law by involving criminals, victims, families of victims or perpetrators, and other related parties. hiariej explains five reasons why restorative justice needs to be applied in medical disputes. first, restorative justice is an out-of-court settlement that prioritizes the recovery of victims and not punishment. second, the emergence of disputes in medical practice and medical actions are mostly not intentional, but rather on negligence, it can even be a pure accident. third, the nature of criminal law is an ultimum remidium. fourth, restorative justice represents the paradigm of modern criminal law. fifth, investigations into malpractice 85 regulation of indonesian medical council no. 74 of 2020 concerning the clinical authority and medical practice through telemedicine during the corona virus 2019 (covid-19) pandemic in indonesia, art. 7 (1) and (2). 86 voi, “cegah malpraktik, pelanggaran etik pasien dan dokter, ksp sebut pemerintah siapkan payung hukum bagi telemedisin,” https://voi.id/berita/134483/cegah-malpraktik-pelanggaran-etik-pasien-dan-dokter-kspsebut-pemerintah-siapkan-payung-hukum-bagi-telemedisin. 87 law no. 11 of 2008 concerning information and electronic transactions, art. 5. 88 for example, a patient expressed disappointment to the makassar district court panel of judges who awarded an acquittal to a doctor suspected of committing malpractice. see abdul hadi, “dokter malpraktik elisabeth divonis bebas, korban laporkan hakim ke ky,” https://www.antvklik.com/headline/dokter-malpraktik-elisabeth-divonis-bebaskorban-laporkan-hakim-ke-ky. https://voi.id/berita/134483/cegah-malpraktik-pelanggaran-etik-pasien-dan-dokter-ksp-sebut-pemerintah-siapkan-payung-hukum-bagi-telemedisin https://voi.id/berita/134483/cegah-malpraktik-pelanggaran-etik-pasien-dan-dokter-ksp-sebut-pemerintah-siapkan-payung-hukum-bagi-telemedisin https://www.antvklik.com/headline/dokter-malpraktik-elisabeth-divonis-bebas-korban-laporkan-hakim-ke-ky https://www.antvklik.com/headline/dokter-malpraktik-elisabeth-divonis-bebas-korban-laporkan-hakim-ke-ky udayana journal of law and culture vol. 6 no. 2, july 2022 198 acts are not intended to punish doctors or medical professionals, but to prevent similar cases from occurring in the future.89 law scholars argue that restorative justice emphasizes human rights and the need to recognize the impact of social injustice and restore the parties to their original condition.90 3. conclusion medical record, undeniably, plays a vital role in legal matters related to tension, or even dispute, between patient and health worker as it becomes a primary document to prove the elements of negligence. while right and access to medical records has already become international concerns, indonesian law and regulations repeatedly emphasize their importance. there are two concerns with regard to medical records. on one hand, the humanitarian activities of health workers should be respected, and therefore, legal consequences should not make them worry to carry out their medical work. as long as medical records show that health workers comply to rule, ethics, and procedural standards and that health care facilities keep the medical records confidentially and in a proper means, there must be a legal certainty to ensure that both health workers and health care facilities are protected by law. on the other hand, improper and unprofessional work of health workers that may cause harm to patients who need or request medical treatment must be dealt with properly. the obligation of health workers to make medical records as stated in health worker law, medical practice law, nursing law, midwifery law and some minister of health regulations reflects a legal certainty. these laws and regulations require a medical record to be made to prove a health service has been delivered by the health workers. the sense of justice regarding the ownership of medical records may be realized if there is a balance between the rights and obligations of health workers and patients. on the side health workers, they are guaranteed legal protection as long as carrying out their duties, including keeping the confidentiality of patients‟ data, according to standards and procedures. the regulations governing the existence of medical records seem do not to reflect the principle of justice since medical record files are owned by doctors, dentists, or health service facilities, even though such files must be disclosed in a legal proceeding before the court. for patients, the meaning of justice is not only the guarantee of the confidentiality of their medical records but also the easy procedures of obtaining such records. this easy procedure would enable patients to choose further medical treatment, 89 faculty of medicine, public health, and nursing universitas gadjah mada, “dinamika sengketa medis di indonesia,” https://fkkmk.ugm.ac.id/dinamika-sengketamedis-di-indonesia/. 90 see ahmad syaufi, diana haiti, and mursidah, “application of restorative justice values in settling medical malpractice cases,” international journal of criminology and sociology 10, (2021): 109. https://fkkmk.ugm.ac.id/dinamika-sengketa-medis-di-indonesia/ https://fkkmk.ugm.ac.id/dinamika-sengketa-medis-di-indonesia/ ownership of medical records in indonesia: discourse on legal certainty and justice ambar dwi erawati, hargianti dini iswandari 199 including, for example, seeking a second opinion or continuing medical treatment at different medical care services. it might happen in the future that conventional forms of the medical record seem to be less attractive compared to electronic medical records. therefore, that situation requires adaptable laws and regulations. with 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https://doi.org/10.24843/ujlc.2021.v05.i02.p04 this is an open access article, distributed under the terms of the creative commons attribution licence (http://creativecommons.org/licenses/by/4.0/), 153 human rights of migrants: from desert migration to resettlement nnawulezi uche* faculty of law, alex ekwueme federal university, ndufu-alike, ikwo, ebonyi state, nigeria. adeuti bosede remilekun** department of legal drafting and law review, attorney general’s chambers ministry of justice, alagbaka, akure, ondo state, nigeria. abstract the issue of desert migration has remained an intractable problem in the context of human rights. desert migration raises unabated and a major concern because of the problems that come with it. illegal migration has highlighted the need for and the challenge of having a proper human rights impact assessment of desert migration which will help in providing a suitable legal framework. this article primarily seeks certain protections accorded to migrants on desert migration and identifies problems associated with desert migration and the states of stranded migrants under human rights law. it is written by using a doctrinal legal research methodology that adopts analytical and qualitative approaches and builds its argument on existing literature which is achieved by synthesis of ideas. this article noted that there is a significant protection gap in the international and regional human rights architecture which oftentimes result in inadequate protection of migrants from human rights violation. it is argued that in order to guarantee a robust protection of migrant's rights outside their place of origin, a more integral response to critical human rights and development challenges is capable of addressing the protection gap. furthermore, the article demonstrated that adopting a new approach with comprehensive instruments on migrant's rights protection and resettlement will be able to eradicate unabated violations of migrant's rights around the globe. keywords: desert migration; migrants; legal protection; resettlement; human rights law. 1. introduction over the years, migration is arguably been a social phenomenon that is the natural result of human nature. migrants all over the world have recognizable rights which are protected by law. the tragic fact of discrimination in migrants’ place of residence, which violates domestic and international legal instruments, reflects an inadequate protective tool as well as protection gap of those instruments. however, arbitrariness and migrant's rights violation continually raises the questions of how just and equitable the migration laws are. continuation of this warped sense of justice is perpetuating injustice against migrants and encourages discriminatory practices. desert migration is a specific topic on migrations that represents various forms of human rights violations. desert migration exposes challenges ranging from poverty, discrimination, lack of access to education, * email: uchennawulezi@gmail.com and nnawulezi.uche@funai.edu.ng ** email/corresponding author: bosedelizabeth@gmail.com mailto:uchennawulezi@gmail.com mailto:nnawulezi.uche@funai.edu.ng mailto:bosedelizabeth@gmail.com human rights of migrants: from desert migration to resettlement nnawulezi uche, adeuti bosede remilekun 154 lack of health care facilities, and negative effects of climate change along with environmental degradation. in the light of the above, the primary purpose of this article is to investigate certain protections accorded to migrants on desert migration. besides, it aims to identify problems related to desert migration and the states where migrants are stranded migrants, analyzed from human rights law perspective. through a doctrinal legal research methodology and qualitative approach, this article builds its argument on existing literature which is achieved by a synthesis of ideas. the analytical part of this paper is begun with a clarification on the definition, concept, and rights of desert migrants along with challenges arising from it. next, it reveals the causes of migrati on and scrutinizes the categorization of an internally displaced person. in addition, it discusses the notion of resettlement in relation to the non-refoulement principle. further, the paper identifies the means of the international protection system as provided by relevant legal instruments. finally, it summarizes all findings, basic ideas, and opinions in the conclusion as well as proposing some constructive recommendations. 2. result and analysis 2.1. desert migrant: definition and concept 2.1.1. definition of migrant in a common understanding, migrant represents those who travel from his place of birth to another country of interest either for a permanent or temporary stay which may be for several reasons or desires. the concept “migrant” has no ge nerally accepted definition, but more importantly, international organization for migration (iom) perceives it as persons, and family members, who moving to another country or region to better their material or social conditions and improve the prospect for themselves or their family.1 several humanitarian agencies define migrant as any person or individual who is domiciled outside his place of origin or stateless outside his place domicile 2 to seek protection or opportunities for a better livelihood.3 moreso, taking into account various conceptions on migrants, "a migrant worker” in the context of this paper is any person that is engaged or has been engaged in a paid job outside his place of origin or not an indigene 1 see international organization for migration, “glossary on migration”, in international migration law, vol.25 (2011), 61-62. https://publications.iom.int/system/files/pdf/iml25_1.pdf 2 ohchr, "recommended principles and guidelines on human rights at international borders" geneva, (2014), 11-56. available online at https://www.ohchr.org/documents/issues/migration/ohchr_recommended_principles_ guidelines.pdf; accessed on the 4th januaary, 2021 3 international federation of red cross and red crescent societies, “policy on migration” (2009), 2-10. https://www.ifrc.org/global/governance/policies/migrationpolicy-en.pdf https://publications.iom.int/system/files/pdf/iml25_1.pdf https://www.ohchr.org/documents/issues/migration/ohchr_recommended_principles_guidelines.pdf https://www.ohchr.org/documents/issues/migration/ohchr_recommended_principles_guidelines.pdf https://www.ifrc.org/global/governance/policies/migration-policy-en.pdf https://www.ifrc.org/global/governance/policies/migration-policy-en.pdf udayana journal of law and culture vol. 5 no. 2, jul y 2021 155 of that country of residence.4 in this sense, the above situation also applies to all migrant workers and members of their families in that country of residence without any form of discrimination arising from sex, race, colour, language, religion or conviction, ethnic or social origin, nationali ty, marital status, birth or another status. 5 this perspective, however, takes into account other groups of persons who may be viewed as persons who do not have any place of origin as well as refugees when special protection is to be accorded to them. 2.1.2. human rights of migrant generally speaking, “migrant’s rights" as a concept does not have a universally accepted definition, but its history is dependent on the views propounded by different human rights practitioners. it must be emphasized that the major objective of the international convention on the protection of the rights of all migrant workers and members of their familie s (icmw) is to foster respect for migrant's rights. also, it should be noted that the convention does not create news for migrants, but aims at guaranteeing equality of treatment with that of the nationals. in addition, a conceptual question of importance is whether human rights law can be applied at all times, thus, in armed conflict as well, given that the philosophical basis of human rights is that it must be protected at all times.6 in times of war, human rights treaties are suspended in which states parties tend to derogate from the provisions of human rights with an exception to "hardcore rights". recent developments in human rights practices have shown that there is a compelling reason to apply certain guarantees in ensuring the maximum protection of the “hard-core” rights.7 however, it must be emphasized that there is a great challenge in the application of human rights law as provided in the treaties which is solely dependent on the type of language used in drafting the treaty. in this sense, there is a clear difference between its interpretation in practice and actual implementation which takes into consideration other people's rights.8 in the context of international humanitarian law, protected persons shall be 4 international convention on the protection of the rights of all migrant workers and members of their families, (2009), art.1. 5 ibid. 6 see jinks derek, " international human rights law in times of armed conflicts," in the oxford handbook on international law in armed conflict, ed. andrew clapham and paola gaeta (oxford: oxford university press, 2014), 656; see also the extension interpretation to the universal declaration of human rights (1948) art. 6 and international covenant on civil and political rights (1966), art. 16. 7 see american convention on human rights (1969), arts. 7(6), 25(1) and 27(2). see also advisory opinion oc-9/87, judicial guarantees in state of emergency, interamerican court of human rights, 6 october 1987, paras. 36-40. see also united nations human rights committee, general comment no. 6: article 5 (right to life), 30 april 1982, para 1and 2. 8 see rosalyn higgins, “derogations under human rights treaties”, british yearbook of international law 48, no.1(1976):281. human rights of migrants: from desert migration to resettlement nnawulezi uche, adeuti bosede remilekun 156 treated under humanity without any discrimination of religion, race, political opinion, or even nationality.9 2.1.3. the concept of migration due to several issues bordering on migrant's rights protection outside their place of origin remained an intractable problem, different approaches on having a specific definition of the concept have emerged. thus, in literal terms, the concept" migration" is perceived as a movement of individuals from their place of origin to their place of residence either for a temporary or permanent settlement.10 furthermore, the concept "migration" is perceived as “the act or an instance of moving from one country or region to settle in another”.11 it should be pointed out that as much as “migration” has various meanings, its understanding and perception shall continue to change as time goes by. recently, various definitions and understanding of the concept ha ve evolved and become more complicated in approach. similarly, treaties on international migration defined international migrants as an individual or group of individuals who migrates from their country of origin to their country of residence for a certain period of time which may be one year or more as the case may be.12 apart from this fundamental definition developed for measurement purposes, the improvement in the concept and definition of migrant would allow further classification of migrants or characterization of the complexity of migration. the 2030 agenda addresses the issue of international migration by including explicitly some migration-related targets as provided in the agenda of the sustainable development goals programmes (sdgs). 13 the sdgs encourage most countries to “facilitate orderly, safe, regular and responsible migration and mobility and to implement well-managed migration policies”, considering international migration from the perspectives of migration. while the terms “orderly”, “safe”, “regular” and “responsi ble” a re frequently used in everyday life, thus, characterization of these types of population mobility often entails ambiguity, leaving much room for subjective interpretation. in view of the concept of migration, this paper shall dwell 9 geneva convention relative to the protection of civilian persons in time of war of 12 august 1949(gciv), arts. 27, 44 and 70 and the deep analysis on this issue in helen obrego´n gieseken, “the protection of migrants under international humanitarian law,” international review of the red cross 99, no.1 (2017): 121–152. 10 see international organization for migration, “world migration report 2020”, geneva, 2019, 1-125. 11 pieter kok, "the definition of migration and it's application: making sense of recent south african census and survey data", south african journal of demography7, no.1(1999):19-30. 12 see united nations demographic and social statistics population division, new york 2017. available on line at https://unstats.un.org/unsd/demographic-social/census/ accessed 21 july 2021 13 see nnawulezi uche and adeuti bosede, expanding the frontiers of the right to work through migration: an evolving regime, brawijaya law journal 8, no.1 (2021): 7-8. https://unstats.un.org/unsd/demographic-social/census/ udayana journal of law and culture vol. 5 no. 2, jul y 2021 157 more on desert migrants who may be entitle d to one form of protection or the other. the term‘ desert migration’ is often used in various type s of publications, without any further explanation.14 it also merged as phrases, for example, ‘desert migration route’,15 or ‘desert migration management as a project activity of the iom.16 the concept of "desert migration" has not been expressly defined in any treaties, declarations, and/ or in any human rights laws. in that regard, its ambiguity has made it difficult to arrive at a common definition. thus, this concept is otherwise perceived as a movement of migrants from their place of birth to their country of interest in search of a better source of livelihood. it is submitted that the term "temporariness" as associated with desert migration has remained an intractable problem when it comes to the definition of the concept. thus, the question now in the circumstance is, what determines the length of time? it is clear from the foregoing that every attempt made in arriving at a uniform understanding of the desert migration concept of course has remained futile. the office of the united nations high commission on human rights (unhcr) in a proper perspective defines an international migrant as any individual or individuals who moved from his or their place of birth of which he or she is a citizen or national of other countries to another place of residence in search of greener pastures which is different from a stateless person.17 besides, it is important to realize that the categories of persons defined as migrant workers are provided under the icmw.18 also, it seems to be generally accepted that applying the term “migrant” in the definition of the subject under review is of course not to undermine the status of the refugees, stateless persons, or similar persons under this condition, but rather to adopt a general term that is all embracing that represents all these categories of individuals. despite the importance and all-encompassing language construction of the universal declaration of human rights (udhr) provisions, desert migrants have various reasons for living their country of origin to their 14 see regina römhild, et.al, “the border as research space: potentials of historical and contemporary border narratives for a better understanding and addressing of migration,” in yearbook migration and society 2020/2021, ed.hans karl peterlini and jasmin donlic (wetzlar: majuskel medienproduktion gmbh, 2021), 19; see also inka stock, “transit to nowhere: how sub saharan african migrants in morocco confront life in forced immobility” (phd thesis, university of nottingham, 2013), 105 15 see european commission, “the european union emergency trust fund for stability and addressing the root causes of irregular migration and displaced persons in africa,” action document for the implementation of the north africa window t05 eutfnoa-ly-06, 12 november 2020, 1-12. 16 see international organization for migration, “iom libya needs and activities three year plan 2019 – 2021”january 2019, 5-8 and international organization for migration, om, eu train libyan mediterranean migrant rescuers, 1 june 2017 https://www.iom.int/news/iom-eu-train-libyan-mediterranean-migrant-rescuers 17 see ohchr, recommended principles and guidelines on human rights at international borders, 2014 chap 1, para 10. 18 ibid., art. 3(d). https://www.iom.int/news/iom-eu-train-libyan-mediterranean-migrant-rescuers human rights of migrants: from desert migration to resettlement nnawulezi uche, adeuti bosede remilekun 158 country of destination despite their vulnerability to all forms of human rights violation. desert migration is associated with all forms of risks ranging from sexual violence and other human rights violations as noted under international migration law. these control measures through stringent legislation that criminalizes irregular migration and/ or placement of specific bans that restrict the movement of migrants to their place of interest have manifested in several forms either by enacting stringent immigration laws with difficult visa application requirements which will discourage a prospective migrant, instead, he will resort illegal migration as a short cut to actualize his dream of searching for greener pastures outside his country of origin.19 2.1.5 notable challenges arising from desert migration the nature of the challenges faced by migrants in desert migration stems from persecution to all forms of human rights violations. the challenges ranging from poverty, discrimination, lack of access to basic rights such as education, lack of health care facilities, negative effects of climate change as well as environmental degradation are all associated with desert migration. under the framework of the right to life, no matter the reason behind such migration, states, and their agencies should at all times provide adequate measures capable of protecting the human rights of these migrants who are vulnerable to any form of violation whether stranded and/or on transit.20 since the position of a stranded migrant or migrant on transit is not adequately provided either in the regional or international instruments. one practical measure to address these challenge s is to look out for more comprehensive legal frameworks capable of protecting the rights of irregular migrants which should be integrated into the existing icmw. besides, it should be also in line with international labour organization (ilo) conventions on migrant workers that confers the right to stay and to take up legal employment.21 several challenges faced by migrants who are vulnerable to human trafficking and all forms of sexual exploitations have remained an object of debate amongst human rights scholars and practitioners. these concerns emerge of state obligations in ensuring adequate protection of the rights of all migrants at all times, for example, on the access to health care facilities. international protection of all migrants is of great val ue as equality that should characterize the world we live in, and as such, the iom has played an important role in connection with having the largest set of survey 19 maybritt jill alpes and ninna nyberg sorensen, "migration risk campaigns are based on wrong assumptions", policy brief, danish institute for international studies, may 2015, 16. 20 see universal declaration of human rights (1948), art.3; international covenant on civil and political rights (1966), art. 6(1). 21 see ilo convention no. 97 (1949), art. 9(1). udayana journal of law and culture vol. 5 no. 2, jul y 2021 159 data on various cases of human rights abuse against migrants bordering on exploitation and human trafficking along the mediterranean routes to europe and other parts of the world.22 the paper noted on the basis of the available data that over 16,000 migrants interviewed who are from syria, afghanistan, pakistan, nigeria, iraq, and eritrea provided a clear picture of where and to what extent migrants are vulnerable to all forms of risk of exploitation during their migration. in a similar vein, the problem of migrants is not a new phenomenon in countries like libya where migrants have to stay for a long period of time in order to cross the sea before reaching their country of interest. libya is known as a country where migrants are less protected while on transit and oftentimes has led to an increase of lawlessness and abuse of their human rights. migrants who found themselves in countries like libya, as well as somalia and south sudan, while on transit are regarded as an endangered species for the most dangerous route they passed.23 2.2. rights of migrants a key point to note on the rights of migrants at home is that there are several legislations and treaties in place that protect and promotes the rights of migrants at home. at the regional levels, the african charter on human and peoples rights guarantees the right to a general satisfactory environment favourable to the development of all peoples, including migrants.24 similarly, the above overview highlights that aside from existing law that provides protection for migrants, a significant institutional advancement that is complementary with the e xisting human rights instruments also provides different forms of human rights protection for migrant individuals which could be direct or indirect protection at home. most significant among these human rights instruments are the udhr, the international covenant on civil and political rights (iccpr), the international covenant on economic, social and cultural rights (icescr) 1966, and the other international convention dealing with specific social groups such as icmw, the convention on the rights of the child (crc) 1989, the convention on the elimination of all forms of discrimination against women (cedaw) 1980, the united nations declaration on the rights of indigenous people's 1969, the convention relating to stateless persons 1954 as well as the convention on the reduction of statelessness 1991 respectively. 22 eliza galos, harry cook, and laura bartolini, “migrants vulnerability to human trafficking and exploitation in the irregular migration context of the mediterranean routes”, migration policy practice vii, no. 2(2017): 5. 23 see european commission, loc.cit.“ see also north africa mixed migration hub, survey snapshot: italy, december, (2016) and office of the united nations high commissioner for human rights and united nations support mission in libya. detained and humanized: report on human rights abuses against migrants in libya (2016), 1-32. available online at https://www.ohchr.org/documents/countries/ly/detainedanddehumanised_en.pdf; accessed on the 14 january, 2021 24 african charter on human and peoples rights, art. 24. https://www.ohchr.org/documents/countries/ly/detainedanddehumanised_en.pdf human rights of migrants: from desert migration to resettlement nnawulezi uche, adeuti bosede remilekun 160 the above conventions and documents provide a general application to migrant's rights protection outside their place of origin whether internally displaced or not. migrants at home also benefit from this human rights protection which ranges from freedom of movement, unwarranted expulsion, and violence and intimidation as well as other forms of rights. at the regional levels, similar concerns have already been expressed on the scope of migrant's rights by the economic community of west african states (ecowas)’ protocol that deals with the issue of freedom of movement of persons from their place of origin to their place of interest. the protocol enables ecowas countries’ citizens to enter, reside and establish a territory of an ecowas member without any molestation or abuse.25 the essence of the above is to guarantee maximum protection of their citizens who are outside their place of origin as well as establishing common ties amongst the countries in the africa region. 2.2.1. causes of migration it is pertinent to point out that there are many factors responsible for migration. it is settled that migrants moved from their place of origin to their place of interest for either economic reasons, disaster , or as a result of internal crisis in their country of origin. in a similar vein, migrants may have faced several challenges that will compel him or them to leave his or her country of origin to seek greener pastures outside their country of origin. another scenario that illustrates the reasons for migration maybe as a result of political circumstances which may lead to people fleeing either as a result of war, insurgency, militancy, and/or banditry that may give rise to all manner of human rights violations or similar circumstances that has created insecurity and climate of fear. specifically, in this context of human rights abuses, cases of refugees are often found in neighbouring countries as asylum-seekers. similarly, migration could be a result of an environmental or sudden change in the atmospheric condition of that country which may compel forced or voluntary migration of individuals to another country for safety. also, instances of natural disasters can compelling people to move out of their country of origin for safety. in addition, it should be noted that instances of political instability in a country can compelling one to migrates from his country of origin to another. in the light of the above, it is evident that all migrants are faced with one situation or the other given the prevailing circumstance as they continue to live and work in their place of residence, they are faced with several challenges ranging from adapting to a country's socio-cultural lifestyle different from theirs. furthermore, as strangers, they are being denied basic rights, as well as denial of protection of their human rights at all times with the notion that they are strangers and not entitled to any form of human rights protection from their country of residence. it is noteworthy that the above situation, however, contributes 25 see economic community of west african states, protocol relating to free movement of persons, residence, and establishment, 1979, art. 2(1). udayana journal of law and culture vol. 5 no. 2, jul y 2021 161 to migrants' difficult access to social protection and welfare in their country of residence. 2.2.2. internally displaced persons: are they migrants? one of the most outstanding and positive developme nts under migration law was a proper interpretation of the concept of internally displaced persons (idp). therefore, it is our considered view that the notion of internally displaced persons is now widely adopted by humanitarian practitioners as well as policymakers, while the concept has remained problematic. without prejudice to the foregoing, there has never been a universal definition of the above concept at the international level of operations. several efforts have been made to arrive at a uniform definition of the concept, to bridge various dimensions of the concept that may cover a broad or even a narrow scope of definitions.26 the concept of idp has various interpretations depending on how and who is defining it. it may be seen as persons who as a result of continuous harassment, hostilities, or brutality; unwillingly flew from their known abode but still decide to remain within the jurisdiction of the country.27 similarly, the idp in a broader term may also be defined as individual or group of individuals that are mandatorily coerced to abandon to leave their known native land of abode due to unending catastrophe or flee from the hostility bestowed on them by calamity caused by armed humans or bandit who has never crossed an international state borde r.28 the complexity of the above definitions gave rise to several issues that require further clarifications. in a situation of violence and persecution that prompted human migration outside the territorial borders of a country, it is regarded as migrants on transit or stranded migrants, while those who remained in their country of origin are being regarded as idp. those who flee outside their country of birth for safety may enjoy better protection than those who remained in their country of origin. this position is justified by the former united nations secretary-general who submitted that “it is inadmissible that those who have managed to cross the border should benefit from the rules of international law while, at times only several hundred meters away, those who were not able to leave their country remain unprotected.29 it can thus be said individuals who left their country of origin caused by civil war or internal armed conflicts have not sought refuge in other nations, may be regarded as idp. this type of person is entitled to adequate 26 see analytical report of the secretary-general on the definition of internally displaced persons(1992), 23. 27 unhcr, “the state of the world’s refugees: a humanitarian agenda” (oxford : oxford university press, new york, 1997), 99. 28 see united nations high commissioner for refugees, guiding principles on international displacement, 22 july 1998, introduction: scope and purpose, para 2. 29 boutros boutros-ghali, “in rome, secretary-general speaks in support of displaced persons,” united nations press release sg/sm/5866 january, 1996. human rights of migrants: from desert migration to resettlement nnawulezi uche, adeuti bosede remilekun 162 protection like that giving to refugees since they have not crossed international borders as to be covered by relevant laws on refugees. nonetheless, for an apt consideration and appreciation of the above concepts, it is pertinent to emphasize that state parties are under an obligation to protect, respect, and ensure the rights of idp are adequately protected at all times. those who are internally displaced are most times not adequately protected and/or giving necessary assistance even when their situation is a legitimate concern of the state. that being said, the entire provisions of the guiding principles on internal displacement 1998 will be a veritable tool for sustainability, sufficient instruction, and control on internally displaced matters especially for vulnerable individuals; it is then very essential to note that the international human rights laws, refugee laws and humanitarian law principles have set out standards of treatment for idp. thus, these have given rise to a special deliberation on the human rights of idp that will create more awareness on its status and rights. it has been observed that the entire provisions of the guiding principles on internal displacement 1998 refer to two situations: “return” and “resettlement’’. in this sense, it should be noted that while some countries construed the latter to mean settlement outside one's country of origin, others saw it as a settlement in one’s place of birth. 2.3. the notion of resettlement: the way forward having looked at the various conceptions on the term “migration” and rights of migrants either on transit or stranded vis-à-vis the general notion on the status of idp in the light of the provisions of international human rights law, it is obvious that human rights are those liberties, immunities, and benefits which, by accepted contemporary values, should be enjoyed by all human beings as of right.30 it is a right tied to humanity that even in the absence of enforcing machinery does not deny its existence status. under the resettlement assistance, the international organization for migration has played a key role in global resettlement. in this regard, resettlement could be viewed as an instrument mapped out to meet the necessities of refugees and probably solutions to their predicaments.31 there is a need to advocate legal frameworks that are capable of driving and shaping the resettlement agenda which will be in line with the principles of human rights laws and refugee laws. the basic purpose of rese ttlement is to serve as a protective tool that will ensure adequate provisions of shelter for displaced persons or migrants who are outside their place of birth as a result of one reason or the other. it could be seen as an instrument of responsibility sharing and as a durable solution in specific circumstances. the policies and the criteria to be applied in such situations should be done in a consistent manner as well as being 30 see universal declaration of human rights, 1948, arts. 3 and 13. 31 see international organization for migration office in belarus, “movement,” https://iom.by/en/activities/movements https://iom.by/en/activities/movements udayana journal of law and culture vol. 5 no. 2, jul y 2021 163 transparent and should strive to avoid lopsidedness. in situations of resettlement, there exist too many variables ranging from political will, place of origin, and issues bordering on quota. thus, recognizing the level of awareness on resettlement at international, regional, and national levels, it must be emphasized that the unhcr has further broadened its position on this important protective tool which has made resettlement become part of its operations, that still fall into its competence and function.32 the word ‘‘resettlement’’ means the selection and movement of known refugees to an entirely new environment or abode outside their native land in order to seek protection from a third party state who had earlier concur to render maximum protection for them without any form of requirement. thus, this form of resettlement status provided to them guarantees their protection against unlawful repatriation and ensures that these refugees or migrants and their family members or dependants have access to the basic rights similar to those enjoyed by the nationals of that country. the issue of non-refoulement principle 33 is fundamentally important in the context of resettlement because african refugees syndrome has of late, come to be worrisome. not just because of the massive nature of this problem, but also because some of the migrants who are refugees properly so-called are sometimes repelled at the frontiers by some african countries. migrants seem to be profiling as aliens and that the reception of aliens is an exclusive and discretionary right of every sovereign state, and that except through special treaties,34 no state can claim for its citizens, the right of entry into another state for residency purposes.35 it is against the background of the state’s omnipotent capacity to admit or exclude non-nationals or aliens from its territory that in the light of the precarious circumstances of the migrants as discussed earlier in this paper, that they have been shielded by the non-refoulement principle. in this regard, provides that contracting party to the convention shall not expel or hand-over a refugee back in a manner where his life or freedom might be in jeopardy or danger due to his origin while in his host country. in that respect, the philosophical basis of the main import of the non refoulement principle which is anchored on adequate secur ity, safety, and protection of migrants suggests that the human rights of migrants or refugees should be adequately protected at all times whether in their place of origin or not. in this sense, the paper noted as follows: first, that resettlement is an instrument that provide s international protection for the individual whose fundamental human rights are threatening or in danger. second, such protection must be long-lasting for all refugees and their repatriation and local integration process. third, such protection rendered 32 statute of the office of the united nations high commissioner for refugees (1950), art. 6. 33 this principle is stipulated in convention relating to the status of refugees, 1951, art. 33 (1). 34 j.g. starke, introduction to international law (london :buttersworths, 1984), 336-337. 35 l. oppenheim, international law: a treaties(, london: longmans, green, 1952), 234-357. human rights of migrants: from desert migration to resettlement nnawulezi uche, adeuti bosede remilekun 164 to refugees is an expression of international solidarity that allows states to assists refugees by providing adequate protection, and as well reduce their burdens. international protection and identification of durable solutions are viewed as the unhcr’s core objectives, however, its mandate has been expanded in recent times through the resolutions of the united nations general assembly regarding on resettlement. ultimately, the above two concepts have played a significant role in achieving the objectives of the unhcr. resettlement has remained an invaluable protective tool used in addressing all the essential needs of all refugees problems outside their place of origin. in this context, it becomes all the more relevant to emphasize that these voluntary repatriation, local integration, and resentment are very germane and are important solutions to address refugee problems. in this case, it must be stated that the main purpose attached to resettlement policy is providing a long-lasting solution for refugees who are willing to go back to their native land or retain their refugee status; this is because of the long-lasting protection that ought to be given to refugees are lacking. it must be emphasized that every refugee deserves ultimate prot ection from his country of residence or refuge. relying on the aforesaid, that the concept of resettlement has been expanded following the adoption of the convention plus initiative in 2004 as well as the agenda for protection in 2002. the agendas for the protection of refugees have its primary objective in expanding resettlement opportunities that will enhance a broad range of resettlement issues in several countries of the world by applying more strategic use of resettlement technique s that will benefit many refugees by the introduction of capacity building programmes for various countries which encourages countries to increase their quotas through different means of accepting refugees36 that will be resettlement friendly. in the same vein, it must be acknowledged that resettlement has remained a vital means of showing international solidarity in addressing refugee's resettlement problems. however, attention needs to be paid to the strategic approach to solving problems of assessment and identification of those who genuinely need resettlements in order to maximize the protection benefits. 2.4. overview of international protection system the status of refugees is embedded in the 1951 convention relating to the status of refugees (hereinafter the 1951 convention) and the 1967 protocol relating to the status of refugees (hereinafter the 1967 protocol), and other regional treaties and declarations placed on the rights of refugees. notwithstanding the above possibilities, it is a fact that the question of whether obligations to provide long-term rehabilitative care lies on the regulatory system of international human rights law depends on the scope of application of international human rights law during armed conflict. furthermore, it must be emphasized that the unhcr is responsible for the 36 there has been a series of a high-level dialogue that aims to link the migration and development. see for example, philip martin, susan martin, and sarah cross, “highlevel dialogue on migration and development,” international migration, 45, no. 1 (2007):7. udayana journal of law and culture vol. 5 no. 2, jul y 2021 165 provisions of international protection to all refugee migrants as well as providing solutions to refugee's problems around the globe. also, a discourse on providing an international legal framework capable of providing adequate protection for internally displaced persons within or outside the region of africa is needed is of course, necessary and should be in line with the desired standards of treatment that governments and/or its agents should be encouraged to observe.37 as a priority issue, the protection of migrant refugees has remained an important part of the unhcr priority issue. in this regard, it has been observed that in order for a country to protect refugees, such country must secure their presence and proper admission into her country and ensuring that their rights are protected and respected until they are properly settled or a durable solution is found. also, in the context of international protection of refugee s, a durable solution is an element of responsibility-sharing with the country of asylum. therefore, the united nations human rights mechanisms are capable of being used to enhance migrants' protection. suffice to point out however that the united nations human rights machinery is complex:the mandates, competence, and experience of different united nations bodies dealing with human rights vary enormously. in the light of the above, the issue of international protection, in other words, pertains to the international legal order of the united nations enforcement mechanism applied in such a manner that migrant refugees' rights are adequately protected outside their country of origin. similarly, it may be understood to mean actions exhibited to ensure unrestricted equal access and enjoyment of human beings who may be migrant refugees or protection giving to migrant refugees outside their place of birth in accordance with the provisions of the law. 2.4.1. some notable legal instruments in this connection, it is interesting to examine some of the notable legal instruments that guarantee legal protection to migrant refugees. in all contexts, the 1951 convention and the 1967 protocol protect the rights of refugees within their host countries and their native land. the next description will explain some relevant legal instruments that also guarantee their rights. a. the 1951 convention relating to the status of refugees and the 1967 protocol relating to the status of refugees in furtherance to the enhancement of the recognition of the status of refugees and their deserved recognition around the globe, the 1951 convention represents the legal instrument that is responsible for such protection and recognition under international refugee law. it outlined what qualifies one as a refugee and the deserved standards for their treatment outside their place of origin and/or while in asylum condition 37 roberta cohen, "protecting the internally displaced", world refugee survey 1996, u.s. committee for refugees , washington, d.c., 1997, 3. human rights of migrants: from desert migration to resettlement nnawulezi uche, adeuti bosede remilekun 166 the entire provisions of the 1951 convention provided a platform for a universal definition of a refugee amongst state parties to the convention, defining refugee either on the basis of the ethnic, national group, or state of origin. aside from the unhcr statute, the 1951 convention initially provided a clear picture of persons who became refugees as a result of events occurring on or before 1 january 1951. b. international convention on the protection of the rights of all migrants workers and member of their families it should be noted that the icrmw is majorly categorized as one of the seven human rights instruments that are very fundamental to defining basic and universal human rights. others are the iccpr, icescr, convention against torture (cat), cedaw, and crc. however, it is maintained here that the relevance of the 1990 convention stems from the fact that migrant workers are construed as having a better status than laborers or economic entities. the above convention was made to prevent and eliminate illegal migrants within the country and provide last-longing protection for migrant workers and members of their family and also provide means of recognition and bringing closer legislation to stand side by side with international standards c. the 1969 organization of african unity convention governing specific aspects of refugee problems in africa the 1969 organization of african unity convention governing specific aspects of refugee problems in africa applies not only to persons fleeing from persecution but also to those fleeing from situations of external aggression, occupation, foreign domination, or events seriously disturbing public order. 38 in most african countries, the status of refugees instances of refugees fleeing from their country of origin to another as a result of one problem or another is a commonplace issue. it is vital to note that the promulgation of the 1969 african union convention is now universally implemented and not limited to the african region alone. d. cartagena declaration on refugees 198439 the cartagena declaration possessed a unique characteristic in that recommended in their entirety the status of a refugee; that any refugee who left his native land of threat to their fundamental human right as a result of an attack or other means of violence that have disturbed the society. this type of declaration has provided the basis for easy identification and/ or recognition of refugee status in some of the latin american countries in recent years.40 38 organization of african unity convention governing the specific aspects of refugee problem in africa, 1969, art. i (1) and (2). 39 see cartagena declaration on refugees, colloquium on the international protection of refugees in central america, mexico and panama, 1984, art.1. 40 see the bangkok principles on the status and treatment of refugees adopted by the asian-african legal consultative organization in 2001, arts. 1(a)(b), 2 & 3. udayana journal of law and culture vol. 5 no. 2, jul y 2021 167 2.4.2. shortcomings of the existing legal instruments it is evident from the foregoing that some of the above notable instruments have some shortcomings which have either made its implementation difficult or acce ptable globally it is based on the above that this paper made the under-listed observations. first, there is a weak implementation standard and or delay in the adoption of the existing treaties. the paper noted that among the total number of sovereign states in the world, there are not so many countries that have ratified or acceded to the icmw and this remained a worrisome situation. at another extreme, it may seem clear that the said delay in the ratification of the icmw may be as a result of disintereste dness in that le gal instrument which symbolizes general resistance to the recognition of the application of human rights standards to migrants, especially the undocumented migrants whose existence in their country of refuge is not on record or could be found anywhere. second, the designation of some persons in the statute as “illegal” has informed the denial of their le gal protection as well as their basic rights in the country where they are seeking asylum. third, the existing legal framework does not provide for nongovernmental organizations and migrants access or opportunity in contributing or participating in international policy formulations. forth, the existing instrument provides what we may term “dichotomization of human rights” for which international law has recognized victims of violations of political rights as a migrant refugee that needs protection and assistance. lastly, the level of attention given to migration control does not reflect in the protection of their human rights which has a militating factor under international migration law. 3. conclusion this paper has largely dealt with migrant's rights from a human rights perspective. from the discussions so far, we have been able to establish that migrant's rights abuses are endemic all over the world. the vulnerability to these abuses and exploitation is greatly compounded and exacerbated by other conditions such as belonging to a minority group. many treaties or protocols have considered migrants as vulnerable persons who deserves adequate protection and resettlement a further observation made in this regard is that the existing legal instruments are weak and not capable of protecting the human rights of migrants, and in particular, providing adequate resettlement mechanisms for desert migrants or those on transit. this study is not to be seen as an end but rather as a beginning of a new process aimed at improving an understanding of an agreement on the principles or role of international human rights law on the status of migrants who deserve adequate protection and resettlement outside their place of origin. thus, this principle embedded in some conventions and protocols respectively rested at the core of refugee protection and are considered to have a basis outside the conventional laws. as an example, the 1951 convention regulated not only the personal status of refugees as a human rights of migrants: from desert migration to resettlement nnawulezi uche, adeuti bosede remilekun 168 special category of persons but also provided a certain level of human rights protection, such as non-discrimination and freedom of movement that were subsequently de veloped in regional and international legal frameworks. the issue of human rights of migrants has created several legal problems that must be settled once and for all. accordingly, it is recommended that several actions can help in addressing some of the intractable problems. thus, the following recommendations may be of help if well adopted or implemented. first, there is a compelling need for mutual cooperation between the unhcr and state parties in the area of facilitating the identification of undocumented migrants as well as providing adequate resettlement facilities for them. second, there should be regular updates on information bordering on desert migrant's problems both at the regional and international levels of operations. third, in addressing protection problems faced by desert migrants, it requires the gathering of information about such migrant outside his country of residence and or other countries where he has links which may be either his place of birth, descent , or his former place of residence. forth, the host state should provide an adequate and sustainable resettlement framework that will provide access to empowerment and livelihoods. fifth, desert migrants should be provided with a longterm safety, security and freedom of movement since such efforts at assisting and protecting them is in line with international standard. sixth, the resettlement policy of the host country should be a long-lasting one as well as being capable of assisting such migrants who are unable to voluntarily return home or to remain in their country of refuge as the case may be. ultimately, it is worthy of note that full adoption of the above recommendations made in this paper will further strengthen the efforts made in protecting the human rights of migrants through resettlement. it is not in doubt that the adoption of the recommendations at the domestic or international levels will certainly increase the protection and resettlement desired by all migrants. acknow ledgment this article is written based on a paper with a title human rights of the migrants: from migration to resettlement, written by uche nnawulezi, in a conference with a theme “reframing migration and human rights; border crime and international security in the discourse of globalisation”, organized by dominican university, river forest, illinois, the united states of america on 3-5 october 2019. 41 the current version of the article has further developed the idea, opinion, and sources of the abovementioned paper. 41 the abstract is available in conference, “reframing migration and human rights; border crime and international security in the discourse of globalisation”, organized by dominican university, river forest, il, usa, 3-5 october 2019, 16-17. https://www.conflictsandgenderights.com/images/pdf/conference -program.pdf https://www.conflictsandgenderights.com/images/pdf/conference-program.pdf udayana journal of law and culture vol. 5 no. 2, jul y 2021 169 bibliography book derek, jinks. 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mailinda eka yuniza* faculty of law, gadjah mada university, yogyakarta, indonesia agustina merdekawati** faculty of law, gadjah mada university, yogyakarta, indonesia gilda talitha putri*** faculty of law, gadjah mada university, yogyakarta, indonesia jeremy abraham guntur**** faculty of law, gadjah mada university, yogyakarta, indonesia abstract the management of underwater cultural heritage in indonesia is still experiencing many obstacles, one of which is the imbalance between conservation and economic interest in managing underwater cultural heritage. the results indicate that these problems stem from the legal gap that exists in the indonesian legal system. existing laws and regulations have not been adequate to respond to the needs for conservation and proper economic utilization of underwater cultural heritage. the non-existent provision in regards to in situ and ex situ conservation, as well as the appraisal and selling methods, has led to further legal uncertainty. by using normative legal research methods, this research paper aims to analyze the urgency of managing valuable cargo objects from sunken ships classified as underwater cultural heritage objects and formulate a new concept of underwater cultural heritage management which contain seven steps that will balance both conservation and economic interest. keywords: conservation; economic interest; underwater cultural heritage 1. introduction 1.1. background the geographical condition of indonesia provides strategic shipping lanes for ships from all over the world. malacca strait, makassar strait, lombok strait, and sunda strait are major straits in indonesia, which are the most traversed straits by ships from all over the world.1 however, not all ships have fared well. many of the ships sailing through indonesian waters had accidents and sank, resulting in many shipwrecks and historical assets were found in indonesian waters. * email/corresponding author: mailinda@ugm.ac.id ** email: agustina_merdekawati@ugm.ac.id *** email: gildatalitha99@mail.ugm.ac.id **** email: jeremyguntur@mail.ugm.ac.id 1 vinca pretylia, ―tinjauan hukum pelelangan benda berharga muatan kapal tenggelam (bmkt),‖ university of bengkulu law journal 2, no. 2 (2017): 166. udayana journal of law and culture vol. 6 no. 2, july 2022 144 it is often said that there is more history underwater than in all the museums of the world combined.2 historical assets buried on the seabed are commonly referred to as underwater cultural heritage (uch). underwater archaeological assets represent a relevant part of the world cultural heritage and a particularly important element in the history of people, nations, and their relations with each other concerning their common heritage in the form of uch.3 two worldwide conventions specifically target uch, namely the united nations convention on the law of the sea (unclos) and the unesco convention on the protection of the underwater cultural heritage (2001 unesco convention). articles 149 and 303 of unclos being the only two unclos’ articles related to the uch. these articles focus only on the need to protect the uch4 and on the rights and jurisdictions over the uch in case of their accidental location.5 the awareness of countries in the world about the need for a globally standardized management of uch is increasing after the 2001 unesco convention. the 2001 unesco convention aims to synchronize vision statement, mission statement, definitions, principles, and basic recommendations for the management of uch among countries in the world, by 2019.6 to date, it has been successfully ratified by 71 countries.7 the 2001 unesco convention has also categorized uch as unrenewable resources and therefore adding more understanding that uch should be managed with due regard to the conservation aspect.8 based on the history of indonesian laws and regulations regarding uch, prior to the 2001 unesco convention, the history of uch management regulations in indonesia began in 1989 when president soeharto issued presidential decree no. 43/1989 concerning the national committee for the lifting and utilization of valuable objects from the load 2 vasilike argyropoulos and anastasia stratigea, ―sustainable management of underwater cultural heritage: the route from discovery to engagement—open issues in the mediterranean,‖ heritage 2 (2019): 1588. 3 fabio bruno, et al., ―development and integration of digital technologies addressed to raise awareness and access to european underwater cultural heritage. an overview of the h2020 i-mareculture project,‖ in oceans 2017 – aberdeen (2017): 1. 4 united nations convention on the law of the sea, art. 149. 5 ibid., art. 303. 6 andrew viduka, ―australia and pacific island countries: the need to collaborate to protect underwater cultural heritage,‖ historic environment 31, no. 2 (2019): 88-100; 2001 unesco convention has defined as underwater cultural heritage as all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years such as: (i) sites, structures, buildings, artefacts and human remains, together with their archaeological and natural context; (ii) vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and (iii) objects of prehistoric character, see 2001 unesco convention, art. 1(a). 7 unesco, ―states parties to the 2001 convention,‖ https://en.unesco.org/underwater-heritage/2001. 8 kristen ounanian, et al., ―conceptualizing coastal and maritime cultural heritage through communities of meaning and participation,‖ ocean & coastal management 212, (2021): 105806. https://en.unesco.org/underwater-heritage/2001 quo vadis regulation on underwater cultural heritage in indonesia: balancing conservation and economic interest mailinda eka yuniza, agustina merdekawati, gilda talitha putri, jeremy abraham guntur 145 of sunken ships. furthermore, the management of uch is increasingly widespread and has made many companies interested in taking part in the appointment of uch. therefore, the indonesian government made presidential decree no. 25 of 1992 concerning the distribution of proceeds from the lifting of valuable objects from the cargo of a sunken ship between the government and companies (―presidential decree no. 25/1992‖). in presidential decree no. 25/1992, it is explained that profit sharing from the management of uch, which is better known in the indonesian language as benda muatan kapal tenggelam (bmkt), is divided into 50% owned by the state which is deposited into non-tax state revenue (pnbp) and 50% is given to companies that assist in the management of the appointment of the bmkt.9 in this case, commercial objectives in bmkt management appear to be prioritized over conservation goals. after the 2001 unesco convention was held, the bmkt regulations were revised again in 2007 and 2009 regarding the composition of the uch national committee itself.10 furthermore, bmkt was officially recognized as a cultural heritage in 2009 pursuant to minister of finance regulation no. 184/pmk.06/2009 (mofr 184/2009) which explains that bmkt is a cultural heritage controlled by the state,11 followed one year after that law no. 11 of 2010 concerning cultural conservation (law 11/2010) which includes bmkt as one of the objects of cultural heritage. the minister of marine and fisheries, acting in her capacity as the chairman of the national committee for the lifting and utilization of valuable objects from the load of sunken ships issued a regulation, suspended temporarily the survey and lifting of such objects from 25 september 2015 until 31 december 2016. 12 this was also followed by the inclusion of bmkt management in the negative investment list in presidential regulation no. 44 of 2016 concerning the list of business fields closed and business fields open with conditions in the investment sector. however, after the issuance of law no. 11/2020 concerning job creation and its derivative rules, namely government regulation no. 5 of 2021 concerning risk-based business licensing, the bmkt permit is reopened and requires a business license to carry out the management of 9 presidential decree no. 25 of 1992 concerning the distribution of proceeds from the lifting of valuable objects from the cargo of a sunken ship between the government and companies, art. 2(2). 10 presidential decree no. 19 of 2007 concerning the national committee for the lifting and utilization of valuable objects from the shipload of sinking ships as amended by presidential decree no. 12 of 2009 concerning amendments to presidential decree no. 19 of 2007 concerning the national committee for the lifting and utilization of valuable objects from the load of ships sink, art. 6 11 regulation of minister of finance no. 184/pmk.06/2009 concerning procedures for determining the status of the use and sale of valuable cargo objects from sunken ship, art. 1(3). 12 regulation of minister of maritime affairs and fisheries no. 28/permenkp/2015 of 2015 concerning temporary termination (moratory) licensing of surveys and removal of valuable objectives origin of carrying on sunnking ship, art. 1 and art.3 and regulation of minister of maritime affairs and fisheries regulation no. 04/permenkp/2016 of 2016 concerning temporary termination (moratory) licensing of surveys and removal of valuable objectives origin of carrying on sunnking ship, art. 1 and art.3 udayana journal of law and culture vol. 6 no. 2, july 2022 146 the bmkt. in addition, presidential regulation no. 10 of 2021 concerning the investment business sector states that the management of bmkt is opened for investment. looking at the history of the legislation regarding bmkt after the 2001 unesco convention, although indonesia did not ratify the convention, the conservation spirit that underlies the 2001 unesco convention is also contained in indonesian laws and regulations that regulates bmkt, especially mofr 184/2009 and law 11/2010. moving on to the comparison of the contents of the laws and regulations governing bmkt and the 2001 unesco convention, compared to the definition of uch defined in the 2001 unesco convention, indonesian laws and regulations only recognize a narrower scope of bmkt. based on indonesia’s hierarchy of laws and regulations, there is no law that specifically defines and regulates bmkt until now. bmkt under indonesian law is only recognized as a part ―bmkt lifting‖, which is categorized as one type of activity under maritime service.13 to carry out the activities of bmkt lifting, a business permit is required.14 in a literal sense, bmkt means valuable cargo objects from a sunken ship.15 in relation to the activities of bmkt lifting, so that they can be implemented in accordance with the direction and objectives of the regulation in law 32/2014, then the term ―bmkt‖ itself needs to be defined first. although currently no law specifically defines bmkt, the definition of bmkt can be found under lower regulation, namely the government regulation no. 32 of 2019 concerning marine spatial plan (gr 32/2019) which defines bmkt as ‖object originating from sunken ship which have economic, historical, cultural, and/or scientific values that are on the seabed.16 the definition of bmkt is also contained in mofr 184/2009 concerning procedures for determining the status of the use and sale of valuable cargo objects from sunken ship, which defines bmkt as ―objects originating from sunken ship which have economic, historical, cultural, and/or scientific values that are in indonesia’s waters area, exclusive economic zones, and continental shelf, and are at least fifty (50) years old.‖17 this definition is in accordance with the scope of uch contained in 2001 unesco convention, which states that uch also includes vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context.18 in relation to the difference in the scope of the definition of bmkt and uch, the similarity that both have in common that the main component 13 see, article 27(4) letter b of law no. 32 of 2014 concerning marine affairs as amended by law no. 11 of 2020 concerning job creation (―law 32/2014‖). 14 see, law 32/2014, article 47a. 15 banten province cultural heritage conservation center, ―upaya pelindungan dan pemanfaatan cagar budaya bawah air dari sisi hukum nasional dan internasional‖, https://kebudayaan.kemdikbud.go.id/bpcbbanten/upaya-pelindungan-dan-pemanfaatancagar-budaya-bawah-air-dari-sisi-hukum-nasional-dan-internasional/. 16 see, gr 32/2019, art. 1(14). 17 see, mofr, 184/2009 art. 1(2). 18 see, 2001 unesco convention, art. 1(a)(iii). quo vadis regulation on underwater cultural heritage in indonesia: balancing conservation and economic interest mailinda eka yuniza, agustina merdekawati, gilda talitha putri, jeremy abraham guntur 147 that is protected and regulated is the shipwreck or its cargo.19 the difference in the scope and definition of bmkt and uch impacts the protection and management activities of both terms. the management of the findings of underwater objects that can be categorized as bmkt is regulated through the existing regulations regarding bmkt, namely law 32/2014, gr 32/2019, mofr 184/2009, and other relevant laws and regulations. as for the findings of underwater objects that can be categorized as uch based on the 2001 unesco convention, it is currently regulated in law 11/2010 and other relevant laws and regulations. apart from the differences and similarities between the 2001 unesco convention and the indonesian laws and regulations governing the scope of the definition of uch, various reasons underlie indonesia’s reluctance to ratify the 2001 unesco convention, including 1) the principles of ―no commercial exploitation‖ and ―in situ preservation as first option‖ which are not appropriate if implemented in indonesia,20 2) differences in provisions in the authority to use uch regulated in the laws and regulations in indonesia,21 3) the number of countries that have ratified the 2001 unesco convention is still relatively small,22 and 4) complicated legal and political issues.23 in the discussion above, it has been explained that in principle there are differences in the management of uch as regulated in indonesian laws and regulations and the 20001 unesco convention. from 1989 until now, based on management principles formulated by the government of indonesia itself, there are several examples when the indonesian government has suffered losses in managing uch, including the removal of cargo from the wreck of voc ship geldermalsen by michael hatcher in 1985 without giving notice to the indonesian government. at that time, the indonesian government did not yet have laws and regulations governing the management of valuable cargo objects from sunken ships and/or uch objects. objects removed from geldermalsen, including 150,000 ceramic pieces and 126 gold ingots, were later auctioned off at christie's auction house.24 this incident has raised the awareness of the indonesian government to make regulations and institutions specifically to manage 19 sarah dromgoole, underwater cultural heritage and international law (cambridge: cambridge university press, 2013), 66. 20 maulana satria wibowo and andi akhmad basith dir, ―analisis kebijakan indonesia terhadap regulasi unesco convention 2001,‖ journal of international relations 6, no. 4 (2020): 570-571. 21 ibid., 571-572. 22 ibid., 572. 23 a. d. agung sulistyo and arie afriansyah, ―komitmen indonesia dalam pelindungan warisan budaya bawah air di perairan indonesia,‖ veritas et justitia 7, no. 2 (2021): 293. 24 mai lin tjoa-bonatz, ―struggles over historic shipwrecks in indonesia: economic versus preservation interests,‖ in cultural property and contested ownership (new york: routledge, 2017), 93. udayana journal of law and culture vol. 6 no. 2, july 2022 148 uch so that indonesia will not lose the cultural and economic values of uch objects.25 in 1999, tek sing salvage also caused controversy26 because of the large loss of the portion of cultural material that should have become the property of indonesia. the lack of records on the excavation process, the conservation processes that did not meet standards, and the tendency of handling only the most valuable uch objects made tek sing salvage not in accordance with professional archaeological standards. in addition, in the same year as when the tek sing shipwreck was salvaged, the belitung shipwreck was also salvaged. the obstacles in the salvage of the belitung shipwreck were still the same as those in the previous salvages of uch, namely, non-compliance with international standards for the salvage of uch, financial limitations, and limited human resources. of the several sunken ships whose valuable cargo objects have been removed, the cirebon shipwreck is the only one whose salvage and conservation was almost in accordance with the guidelines for archaeological research.27 however, the cirebon shipwreck auction was unfortunately considered less successful since no one had submitted an offer until the third auction in 2014.28 scientists and specialists working on underwater archaeology and related disciplines have faced common and significant obstacles related to its management, particularly in the aftermath of the global economic crisis. these challenges include: a) a lack of coordinated regulatory and planning policies, as well as tools, methods, and/or resources to support a sustainable economic development that includes uch; b) ineffective protection of uch and inability to use them as assets for sustainable economic development; c) insufficient measures to address the effects of climate change or the damage they suffered in the underwater; and d) a lack of understanding and, more importantly, methodologies and materials suitable for underwater in situ conservation and protection.29 based on previous uch management practices in indonesia, several practices did not pay attention to cultural conservation elements and only focused on commercial interests. however, over time, indonesia implements a uch management system that is not only oriented to one type of management. in general, uch management options in indonesia can be divided into two, namely ―conservation‖ and ―commercialization‖, which are differentiated based on the type of valuable cargo objects from sunken ships. 25 muhammad ikhsan purnama, ―penanganan kapal karam bersejarah di wilayah perairan indonesia berdasarkan hukum internasional (kasus kapal geldermalsen milik voc 1985 di perairan kepulauan riau)‖ (thesis, faculty of law, jenderal soedirman university, 2018), 54. 26 judi wahjudin, ―lelang keramik di stuttgart, jerman,‖ buletin cagar budaya, no. 3 (2003): 21. 27 harry octavianus sofian, ―permasalahan arkeologi bawah air di indonesia,‖ jurnal kapata arkeologi 6, no. 11 (2010): 54. 28 tjoa-bonatz, op. cit., 94-96. 29 michela ricca, et al., ―a sustainable approach for the management and valorization of underwater cultural heritage: new perspectives from the tectonic project,‖ sustainability 12, no. 12 (2020): 2. quo vadis regulation on underwater cultural heritage in indonesia: balancing conservation and economic interest mailinda eka yuniza, agustina merdekawati, gilda talitha putri, jeremy abraham guntur 149 in practice, measures for conservation and commercial use of valuable cargo objects from sunken ships still encounter obstacles. based on data obtained from the ministry of maritime affairs and fisheries, there are 170,894 pieces of valuable cargo objects from sunken ships that have not been sold since 2002. it happens because there are several laws and regulations related to valuable cargo objects from sunken ships which tend to contradict the commercialization of the objects, one of which is the mofr 184/2009 which categorizes valuable cargo object from sunken ship as cultural heritage object. for several bmkts that have gone through the auction stage, the challenges of a commercial use can be found in the form of difficulties in getting buyers. an actual example of this challenge is the less successful cirebon shipwreck auction as mentioned earlier.30 in addition, conservation has not been able to be implemented properly due to the limited legal instruments that regulate it. the conservation efforts carried out face several challenges, namely conservation sites that do not meet standards, conservation procedures that tend to reduce the quality of bmkt, and overlapping institutional authorities. therefore, it is necessary to study a series of uch management issues in indonesia in terms of commercialization and conservation of uch in order to produce uch management policy that balances the conservation and the commercialization aspects. 1.2. research aims this research aims to analyze the urgency of managing valuable cargo objects from sunken ships which are classified as uch objects and to formulate a new concept for the management of uch. 1.3. method this research is a normative legal research, which is a legal research conducted by examining existing legal materials and documents.31 the data used in this research is qualitative data in the form of secondary data, which does not directly provide data to data collectors, as well as the primary, secondary, and tertiary legal documents32 and materials. in this research, the data were analyzed qualitatively. the qualitative data analysis method is an analysis method that is conducted by describing qualities in the form of regular, coherent, logical, non-overlapping, effective, and systematic sentences in order to facilitate the reader in interpreting the data and understanding the results of the analysis.33 the whole series of 30 ibid. 31 soerjono soekanto. penelitian hukum normatif, suatu tinjauan singkat (jakarta: raja grafindo, 2003), 14. 32 sugiyono. metode penelitian kuantitatif kualitatif dan r&d (bandung: alfabeta, 2013), 224. 33 abdulkadir muhammad. hukum dan penelitian hukum (bandung: citra aditya bakti, 2004), 52. udayana journal of law and culture vol. 6 no. 2, july 2022 150 processes will be described in an orderly, coherent, logical, and systematic sentence so that it is easier to understand. the conclusions in this research were obtained through the deductive analytic method. the deductive method is applied by reading, interpreting, and comparing what has been discovered in the secondary data, while the analytical method is conducted by interpreting and analyzing various sources related to legal writing in order to meet the conclusions that are in accordance with the research objectives. based on this deductive-analytic method, researchers will read, interpret, and compare what is discovered in the secondary data to meet the urgency of managing valuable cargo object from sunken ships which is classified as cultural heritage objects and the new concepts of uch management. 1.4. literature review based on document searches that have been conducted both online and offline, no research paper that discusses ―quo vadis regulation on underwater cultural heritage in indonesia: balancing conservation and economic interest‖ has been found. nevertheless, several relevant research papers are used as the academic foundation of this research. a research paper written by mario j. aznar specifically discusses in situ conservation in its position as the legal principle of underwater archaeological activities at the present time and as the first option in conserving uch. since the implementation of in situ preservation is optional, there is no legal prohibition to apply other options in the context of conserving uch, including the salvage of valuable cargo objects from sunken ship from the seabed. the salvage is possible as long as it is conducted according to proper procedures.34 another related study, was conducted by bingbin lu and shichao zhou. the combined conservation model of in situ conservation and ex situ conservation is considered an ideal model to be implemented in china. in situ conservation is the main option to conserve uch. however, due to limitations in doing in situ conservation, ex situ conservation methods still need to be done by salvaging uch from the seabed. in addition, the option of commercializing the management of uch up to the stage of salvage is also discussed.35 as far as concerned, there is no research yet that discusses how to balance economic and cultural aspects in the context of management of uch in indonesia. a research paper by arina hukmu adila discusses the management of valuable cargo objects from sunken ships from a cultural 34 mariano j. aznar, ―in situ preservation of underwater cultural heritage as an international legal principle,‖ journal of maritime archaeology 13, no. 1 (2018): 68. 35 bingbin lu and shichao zhou, ―china’s state-led working model on protection of underwater cultural heritage: practice, challenges, and possible solutions,‖ marine policy 65 (2016): 40. quo vadis regulation on underwater cultural heritage in indonesia: balancing conservation and economic interest mailinda eka yuniza, agustina merdekawati, gilda talitha putri, jeremy abraham guntur 151 perspective using the cultural resource management method.36 from an economic perspective, a research paper written by athina kartika sari, much nurachmad, and hudiansyah is nursal stated that the management model based on blue economy policy is the right model for the management of valuable cargo objects from sunken ship to accommodate the high economic potential of the objects.37 thus, this research was conducted to fill the related research gap in the management of uch in indonesia in order to balance the economic and cultural aspects. 2. result and analysis 2.1 the urgency of the balance of management of valuable cargo objects from sunken ship which are considered underwater cultural heritage objects in the perspective of cultural and economic interests 2.1.1. opportunities and challenges in underwater cultural heritage management in indonesia a survey conducted by the ministry of maritime affairs and fisheries together with the association of indonesian marine salvage and sunken ship utilization companies (appp bmkti) revealed that underwater treasures in indonesian waters have a value of usd 12.7 billion or equivalent to idr 127.6 trillion. the entire underwater treasures are spread over 464 (four hundred and sixty-four) location points throughout indonesia.38 36 arina hukmu adila, ―pengaturan pengelolaan benda berharga asal muatan kapal tenggelam di indonesia berbasis cultural resource management‖ (master’s thesis, faculty of law, diponegoro university, 2017). 37 athina kartika sari, much nurachmad and hudiansyah is nursal, ―model pengelolaan benda berharga muatan kapal tenggelam berdasarkan kebijakan ekonomi biru (blue economy) untuk memperkuat ekonomi berkelanjutan indonesia,‖ lex jurnalica 18, no. 1 (2021) 38 cnn indonesia, ―nilai harta karun bawah laut indonesia rp127,6 triliun,‖ n.d., https://www.cnnindonesia.com/ekonomi/20210304134313-92-613678/nilai-harta-karunbawah-laut-indonesia-rp1276-triliun. udayana journal of law and culture vol. 6 no. 2, july 2022 152 figure 1.1 sunken ship and bmkt map (source: ministry of marine affair and fisheries of the republic of indonesia) based on data from the ministry of maritime affairs and fisheries, from an estimated 464 (four hundred and sixty-four) location points of sunken ships and their valuable cargo objects, only 25% of the total location points were successfully surveyed. the number of valuable cargo objects from sunken ships that have been successfully salvaged is only 3% of the total number of valuable cargo objects that have been successfully surveyed.39 in addition to the economic potential of the recovered valuable cargo objects from sunken ship, the tourism potential of shipwreck sites that have been successfully conserved is also an opportunity for uch management activities. the ministry of maritime affairs and fisheries estimates that of the shipwreck sites that have been successfully surveyed, 15-30% of these sites can be developed into tourist sites. one of the shipwreck sites that is designated as uch site and has been developed into a tourist location is the usat liberty shipwreck in tulamben, bali. every year, the usat liberty shipwreck at tulamben dive site is estimated to earn a profit of idr 3.2 billion. in addition to good management from a managerial perspective, the successful management of the tulamben site is also driven by community compliance with awig-awig (customary law) to preserve the tulamben site.40 39 director of marine services, ―urgensi pengaturan pemanfaatan bmkt‖. presentation. (jakarta, 2021). 40 agni sesaria mochtar, ―in-situ preservation sebagai strategi pengelolaan peninggalan arkeologi bawah air indonesia,‖ kalpataru 2, no. 1 (2016): 62. quo vadis regulation on underwater cultural heritage in indonesia: balancing conservation and economic interest mailinda eka yuniza, agustina merdekawati, gilda talitha putri, jeremy abraham guntur 153 other than turning shipwreck sites into dive sites, one of the tourism potential is the use of technology to maximize the educational tourism experience.41 the use of new technologies to improve the exploitation of uch began in 2007 with the virtual exploration of underwater site (venus) project, which focused on the virtual reconstruction of underwater archeological sites. since then, several campaigns to acquire detailed 3d models of ancient shipwrecks have been conducted. the underwater digital models have been employed in a few virtual reality (vr) and augmented reality (ar) applications for interactive and immersive visualization, allowing archaeologists to investigate the virtual site from within. recently, the virtual and augmented submerged archaeological sites (visas) project suggested a virtual diving system based on a vr application that simulates a real diving session from the perspective of a scuba diver. the software follows a plot that is described by a virtual diving partner who accompanies users through the underwater archaeological site's exploration. users can access general and historical-cultural content, as well as information about the flora and fauna of a specific submerged site, through the virtual diving system.42 in managing uch in indonesia, one of the challenges is the looting of uch objects. although the 2001 unesco convention has afforded greater protection to uch worldwide, it has been less effective in southeast asia due to its limited uptake.43 the southeast asian region itself has long been known as an area prone to looting and destruction of uch objects.44 the history of the salvage of valuable cargo objects from sunken ship in indonesia also records incidents of looting, which mostly occurred after the discovery of the objects by local fishermen or divers. in fact, shipwrecks are almost always discovered accidentally by local fishermen and divers.45 the rate of looting of bmkt increased when there was a temporary suspension of survey activities and the lifting of bmkt (moratorium). at which time looting activities, especially in the bangka belitung, bintan, and batam areas almost always occurred every week.46 due to the lack of knowledge about archeology, valuable cargo objects from sunken ships found by local fishermen and divers are usually sold directly to antique dealers without government permission. not only valuable cargo objects, but also information about the coordinates of the objects are sold. before being sold, usually the local fishermen and divers 41 mañas carlota p. r., et. al, ―a. underwater cultural heritage as an engine for social, economic and cultural development. state of research at the university of cadiz (andalusia, spain)‖ heritage, no. 4 (2021): 2680. 42 fabio bruno, et al., op.cit, 1-2. 43 natalie pearson, ―protecting and preserving underwater cultural heritage in southeast asia‖ in the palgrave handbook on art crime. london: palgrave macmillan, 2019, 1. 44 tjoa-bonatz, op. cit., 87. 45 michael flecker, ―wrecked twice: shipwrecks as a cultural resource in southeast asia,‖ in rethinking cultural resource management in southeast asia: preservation, development, and neglect (london: anthem press, 2011), 15. 46 cnn indonesia, loc.cit. udayana journal of law and culture vol. 6 no. 2, july 2022 154 take some valuable objects that they can exploit.47 in line with the facts on the ground, the ministry of maritime affairs and fisheries also presented information about the obstacles faced in managing uch sites, which are the rampant theft of scrap metal and the theft of valuable objects.48 theft causes the uch to lose the completeness of archaeological information because several valuable objects were taken without permission. in addition, the feasibility of the location and the operational costs required for ex situ conservation still need more attention during the conservation process. uch objects that have been salvaged so far are exhibited in the gallery, stored in the warehouse owned by a marine salvage company, stored in the government-owned cileungsi warehouse,49 or stored in the privately-owned sawangan warehouse.50 the uch management in the storage warehouse is still done in a perfunctory manner and does not meet the standards for archeological preservation. the uch objects that have been salvaged are only placed in a basket and not soaked for a long period of time to remove the salt content. it has the potential to cause damage to the objects.51 another problem is the granting of maintenance authority which is not accompanied by capacity building and budget allocation for those appointed to do the maintenance of uch. the after-salvage maintenance of uch should be under the competent authority of the ministry of culture and education to ensure that the maintenance is in accordance with standards for archeological preservation. however, the authority is not given to the ministry of education and culture. according to the gr 32/2019, the authority is given to the ministry of maritime affairs and fisheries which does not yet have archaeological competence equivalent to the competence of the ministry of education and culture. in addition, the budget allocated for the maintenance of archaeological objects is minimal, so the maintenance done by the two ministries is not optimal. challenges in managing valuable cargo objects from sunken ship are also encountered at the utilization stage. as previously explained, valuable cargo objects from sunken ship in indonesia can be managed through conservation or selling. valuable cargo objects from sunken ships are categorized as suspected cultural heritage objects based on the law on cultural property. in addition, mofr 184/2009 also states that valuable cargo object from sunken ships is a cultural heritage object.52 with the status as cultural heritage objects, valuable cargo objects from sunken ships cannot be freely traded because the orientation of the regulation in the law on cultural property is to conserve the object. this is 47 ibid. 48 director of marine services, ―urgensi pengaturan pemanfaatan bmkt,‖ loc.cit. 49 ibid. 50 adila, op.cit., 80. 51 ibid, 81. 52 regulation of minister of finance no. 184/pmk.06/2009 concerning procedures for determining the status of the use and sale of valuable cargo objects from sunken ship, art. 3(1). quo vadis regulation on underwater cultural heritage in indonesia: balancing conservation and economic interest mailinda eka yuniza, agustina merdekawati, gilda talitha putri, jeremy abraham guntur 155 contrary to mofr 184/2009 which allows non-state owned valuable cargo objects from sunken ships to be traded commercially. this conflict of regulations has been hampering the process of selling valuable cargo objects that actually are not classified as uch object. based on data from the ministry of maritime affairs and fisheries, there are 170,894 pieces of valuable cargo objects from sunken ships that have been salvaged but have not been utilized for commercial gain.53 2.1.2. the urgency of the balance of underwater cultural heritage management in terms of conservation and state finance the development of regulations regarding the management of uch in the international scope tends to be more focused on conservation measures as mandated in the 2001 unesco convention. in terms of managing uch, the 2001 unesco convention has four main principles, namely obligation to preserve uch, in situ preservation as the first option, no commercial exploitation, and training and information sharing. recognizing that in situ preservation and ethical access to uch are prerequisites for its protection is now a widely accepted approach around the world.54 the salvage of uch is considered to damage the context and archaeological collection of uch sites that should be preserved. however, it should also be considered that this conservation approach cannot be applied in all countries. the looting of shipwrecks that is rife in southeast asia makes this approach inapplicable to endangered uch sites in southeast asia. at least, with marine salvage, some cultural heritage objects can be saved from being looted.55 the commercialization of uch objects is legal in various southeast asian countries, such as indonesia, the philippines, malaysia, and vietnam, except cambodia which has ratified the 2001 unesco convention, and in other countries such as the united states where the government issues permit to private companies for the commercialization with profit sharing scheme. that way, government revenue is guaranteed and the government will be avoided the risk of costs required to do the salvage operations. this policy is considered common, especially in developing countries that prioritize the government budget for more essential public needs, in the implementation of high-cost maritime activities.56 indonesia’s policy on the management of valuable cargo objects from sunken ship, which are designated as suspected cultural heritage objects, provides two types of management options, namely ―conservation‖ and ―commercial use‖. the management of suspected cultural heritage objects in indonesia cannot be separated from the debate between the issue of cultural 53 director of marine services, ―urgensi pengaturan pemanfaatan bmkt,‖ loc.cit. 54 angelos manglis, anastasia fourkiotou, dimitria papadopoulou, ―the accessible underwater cultural heritage sites (auchs) as a sustainable tourism development opportunity in the mediterranean region,‖ tourism: an international interdisciplinary journal 68, no. 4 (2020): 499. 55 tjoa-bonatz, op. cit., 87. 56 ibid. udayana journal of law and culture vol. 6 no. 2, july 2022 156 heritage and national economic interests. according to law 11/2010, cultural heritage is the nation’s cultural richness as the materialization of thought and behavior of the human being having the important meaning for the historical, scientific, and cultural understanding and development in the community’s, nation’s and state’s life, therefore, it is necessary to appropriately conserve and manage through the protection, development, and utilization program to improve the national culture for the people’s greatest prosperity.57 meanwhile, commercial use regulated in mofr 184/2009 should also be accommodated. however, in practice, there are actually conflicts between regulations that result in the implementation of the two types of management being not optimal. the dualism between the conservation spirit and state finance results in conflicts of law.58 it is regarding the categorization of all types of valuable cargo objects from sunken ship as cultural heritage object as regulated in mofr 184/2009 and law 11/2010 makes commercial use as regulated in mofr 184/2009 unable to be implemented, thus the ideals of balancing uch management have not been achieved. on mofr 184/2009, after being examined, valuable cargo object from sunken ship that does not fall under the category of cultural heritage object will be sold through auction mechanism. it is contradictory to law 11/2010 that stated valuable cargo object from sunken ships is a cultural heritage object that cannot be sold. however, until now, both regulations are still intact and applicable because there has not been any implementing regulation from law 11/2010 or amendment of mofr 184/2009.59 recently, the indonesian government is preparing a draft presidential regulation on bmkt management.60 in this case, the authors try to formulate a new concept of bmkt management to enrich references to the draft presidential regulation on bmkt management so that all cultural and commercial aspects of the uch management process can be balanced. 2.2 a proposed new concept for underwater cultural heritage management to balance commercial and conservation interests in the management of uch, a new concept of uch management is proposed as follows: 57 bagus prasetyo, ―efektivitas pelestarian cagar budaya dalam undang-undang nomor 11 tahun 2010 tentang cagar budaya,‖ jurnal legislasi indonesia 15, no. 1 (2018): 71. 58 sari, nurachmad, and nursal, op.cit., 39. 59 ibid. 60 kontan, ―pemerintah siapkan aturan pengelolaan benda berhara muatan kapal tenggelam,‖ https://nasional.kontan.co.id/news/pemerintah-siapkan-aturan-pengelolaanbenda-berharga-muatan-kapal-tenggelam. https://nasional.kontan.co.id/news/pemerintah-siapkan-aturan-pengelolaan-benda-berharga-muatan-kapal-tenggelam https://nasional.kontan.co.id/news/pemerintah-siapkan-aturan-pengelolaan-benda-berharga-muatan-kapal-tenggelam quo vadis regulation on underwater cultural heritage in indonesia: balancing conservation and economic interest mailinda eka yuniza, agustina merdekawati, gilda talitha putri, jeremy abraham guntur 157 figure 1.2. a proposed new concept for uch management a. licensing the licensing process tries to follow the existing uch management flow. before carrying out uch management activities consisting of surveys, appointments, and utilization of uch, business actors must have a business license which consists of a business identification number (nib) and a permit.61 b. salvage operation of valuable cargo object from sunken ship in the existing mechanism, the lifting process is conducted immediately after the survey is carried out. in this process, the novelty proposed by the author is after the survey has been done, the next step is to determine whether the valuable cargo object from sunken ship will be salvaged and recovered on land or will be conserved at the site where 61 government regulation no. 5 of 2021 concerning risk-based business licensing, annex 1. udayana journal of law and culture vol. 6 no. 2, july 2022 158 it was found (in situ conservation). the main purpose is to prioritize the completeness of the suspected cultural heritage objects. if after a survey has been conducted and it is stated that the suspected uch object is impossible to be removed for fear of damaging or changing the shape of the object for one reason or another and/or because it is considered better to be conserved in the place where it was found, in situ conservation will be done. referring to article 20 of the 2001 unesco convention, if there is an underwater treasure (in this case, uch object), the government is obliged to provide information as openly as possible to the public so that the public will know the shape, value, history, and potential of the treasure and obliged to urge the public to participate in protecting the treasure.62 however, if the object is salvageable and can be recovered on land, the procedure follows the flow of existing regulations. c. inspection of suspected underwater cultural heritage object in the existing mechanism, based on article 3(1) of mofr 184/2009, all uch are classified as cultural conservation objects. in this process, the novelty proposed by the author is after the suspected uch object is salvaged, the coordinating team for the management of valuable cargo objects from sunken ship will check whether the object meets the elements to be categorized as uch object. the criteria for cultural heritage object is still according to law 11/2010, namely objects that have significant values for the history, science, and culture of the indonesian nation and are characterized by a distinctive and unique feature, with very limited and rare quantities and types.63 the ministry of education and culture is the one that can provide recommendations whether the salvaged object meets the elements of cultural heritage or not. a suspected uch object that meets the elements is immediately designated as a cultural heritage object by the ministry of education and culture. the number of suspected uch objects that are salvaged and designated as cultural heritage objects will be adjusted to national needs. these national needs refer to law 11/2010 which states that the number is sufficient to meet national needs if it has been stored in a national and/or regional public museum and/or at the site where it was found.64 this will be followed up by the ministry of education and culture as the ministry in charge of culture and museums. the purpose of enacting such a regulation is for reasons of flexibility where in the future, not all uch objects salvaged have the appropriate number, so it must adapt to existing conditions. 62 2001 unesco convention, art. 20. 63 presidential decree no. 19 of 2007 concerning the national committee for the salvage and utilization of valuable cargo objects from sunken ships as amended by presidential decree no. 12 of 2009, art. 12(1). 64 law no. 11 of 2020 concerning job creation, elucidation of art. 12(2). quo vadis regulation on underwater cultural heritage in indonesia: balancing conservation and economic interest mailinda eka yuniza, agustina merdekawati, gilda talitha putri, jeremy abraham guntur 159 d. valuation of valuable non-cultural heritage object suspected uch object that does not meet the criteria for uch object as referred to in point 1 above will be sold through auction mechanism. the commercialization of valuable non-cultural heritage objects begins with an appraisal by the coordinating team for the management of valuable cargo object from sunken ship with the final result in the form of a recommendation to sell valuable non-cultural heritage objects through auction. later, this recommendation will be followed up by appointing an independent appraiser. an appraiser is someone who has obtained permission from the minister of finance to provide taxation services for an object (in this case, valuable non-cultural heritage object).65 the appraisal must also pay attention to transportation costs, transfer costs, maintenance costs, and other costs. the results of the appraisal by the appraiser will be part of the professional considerations that will be taken into account in determining the auction price for the valuable non-cultural heritage object. the output provided by the appraiser is in the form of a standardized report on the indonesian appraisal standard (spi). e. the auction of valuable non-cultural heritage object previously, the auction of bmkt was only held at the kpknl. the provision for selling bmkt through auction at the state auction office (kpknl) first appeared in presidential decree no. 25/1992. the auction through the kpknl is an alternative among other options, namely to auction it at the international auction center.66 however, later in mofr 184/2009, it is stipulated that both bmkt other than cultural heritage which includes state-owned bmkt and non state-owned bmkt must be sold through the state auction office (kpknl)67. in the new concept, bmkt that falls into the category of non-cultural heritage object that has been appraised will then be auctioned. this auction will be further coordinated by the coordinating team whether it will be auctioned at the office of state assets and auction service (kpknl) or at a privately-owned auction house. the regulations are enforced in such a way as to provide flexibility to the needs in the management of uch. if it is set to be auctioned only in one particular place, it will be difficult to adjust to future conditions. f. auction process the auction will be closely monitored by the coordinating team for the management of valuable cargo object from sunken ship to prevent 65 regulation of minister of finance no. 184/pmk.06/2009 concerning procedures for determining the status of the use and sale of valuable cargo objects from sunken ship, art. 1(3). 66 presidential decree no. 25 of 1992 concerning the distribution of proceeds from the lifting of valuable objects from the cargo of a sunken ship between the government and companies, art. 2(1). 67 regulation of minister of finance no. 184/pmk.06/2009 concerning procedures for determining the status of the use and sale of valuable cargo objects from sunken ship, art. 10. udayana journal of law and culture vol. 6 no. 2, july 2022 160 price manipulation or fraud during the auction. if the valuable noncultural heritage object is successfully sold, the profits from the auction will be distributed to the government as non-tax revenue (pnbp) as much as 60% and to business actors as much as 40%. this profit value is the value after deducting costs such as salvage and removal service cost, maintenance cost, and other costs so that the government and business actors receive a net profit. however, if the object fails to sell at the first auction, a second auction will be conducted by giving the authority to the coordinating team for the management of valuable cargo object from sunken ship to conduct an auction at the same auction house or another auction house with consideration of whether it will get the same results if the auction is conducted at the same auction house as before. g. different ways of selling if the valuable non-cultural heritage object remains unsold after two auctions, it will be sold in another way. this is indeed the last resort because the auction method is prioritized by considering transparency in the implementation of the auction. this other method of selling can be in the form of direct offering to antique collectors or direct sales. h. distribution of valuable non-cultural heritage object collections if valuable non-cultural heritage objects are still not successfully sold, the objects will be distributed to the government and business actors. the distribution will be based on a further agreement between the business actors and the coordinating team on the calculation of the commensurate share and compensation. later, valuable non-cultural heritage objects that do not sell and are owned by the government will become state property as stated in the regulation of the minister of finance regarding the utilization of state property.68 therefore, to balance the economic and cultural interest in the management of uch, there are at least seven processes that need to be followed, namely: the licensing activities related to the uch management, salvage operation of the cargo from the sunken ship, inspection of the suspected uch object by the ministry of education and culture, valuation of valuable non-cultural heritage object by a licensed appraiser and the non-cultural heritage object could be sold through first and second auction, with the profit allocation of 60% as pnbp and 40% to the business actor. if the second auction fails, the management team could directly sell the non-cultural heritage object to the collector and if it still does not succeed, the non-cultural heritage object shall be deemed as state property and distributed among the business actor to be preserved. 68 regulation of minister of finance no. 53/pmk.06/2021 of 2021 concerning management of state property derived from other assets, art. 29. quo vadis regulation on underwater cultural heritage in indonesia: balancing conservation and economic interest mailinda eka yuniza, agustina merdekawati, gilda talitha putri, jeremy abraham guntur 161 3. conclusion currently, the management of uch in indonesia has not yet manifested a balanced management condition in terms of commercial and conservation aspects of cultural heritage. the management of uch in indonesia still has a lot of commercial potentials. there is also potential for managing locations where suspected uch objects are found, considering that there are still many location points of suspected uch objects that have not been managed optimally. in addition, good and correct management is also needed by taking into account the challenges in management in indonesia, including: 1) the rampant looting of uch objects, 2) poor post-salvage management, 3) overlapping authority among management institutions, and (4) conflicts of regulations. policies regarding the management of valuable cargo objects from sunken ship in indonesia actually provides two management options, namely, conservation and commercial use. however, in practice, there are actually contradictions between two regulations, namely, law 11/2010 and mofr 184/2009 which resulted in the implementation of the two options being not optimal. the dualism of law that contradicts each other will results in violation of one of the most important purposes of the law itself which is legal certainty.69 moreover, the previous regulation does not regulate the in situ and ex situ conservation, valuation of valuable noncultural heritage object, and other methods of selling besides auction thus creating a legal gap. therefore, a new management concept that can balance commercial interests and conservation that at the same time provides legal certainty, is needed. the new concept of uch management is done based on the following steps: 1) determining whether to apply in situ conservation or ex situ conservation to suspected cultural heritage objects found, 2) checking the status of suspected cultural heritage object as a cultural heritage object or as a valuable non-cultural heritage object, 3) valuation of valuable noncultural heritage object, 4) selling valuable non-cultural heritage object through auctions as the first and main option, 5) distribution of net profits from the auction of valuable non-cultural heritage object as much as 60% for the government and 40% for business actors, 6) selling valuable noncultural heritage object by other methods if it is not successfully sold after two auctions, and 7) distributing of valuable non-cultural heritage objects that do not sell based on an agreement between the government and business actors. 69 athina kartika sari, much 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https://www.cnnindonesia.com/ekonomi/20210304134313-92-613678/nilai-harta-karun-bawah-laut-indonesia-rp1276-triliun https://nasional.kontan.co.id/news/pemerintah-siapkan-aturan-pengelolaan-benda-berharga-muatan-kapal-tenggelam https://nasional.kontan.co.id/news/pemerintah-siapkan-aturan-pengelolaan-benda-berharga-muatan-kapal-tenggelam https://en.unesco.org/underwater-heritage/2001 vol. 3, no. 2, july 2019, pp. 141-163 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3223 e-issn 2549-0680 141 exclusive distribution and non-compete clause in trade: transnational agreements in european union and united states noona hanni* faculty of law, university of turku, finland article received: 13th march 2019; accepted: 22nd july 2019; published: 31st july 2019 abstract exclusive distribution agreements are commonly used in both european union (eu) and united states (us) markets to ensure the efficient distribution of products and services. this article compares the competition legislation in the eu and us and focuses on the differences in the treatment of vertical agreements. this topic is addressed also from an economic perspective and focuses on the possible abuse of dominant market position by international multisectoral companies. this article focuses on the following legal and economic questions: how do competition legislations regulating vertical agreements differ in eu and us and, what kind of possible effects do transnational exclusive distribution agreements have on international trade and competition. in eu law exclusive distribution agreements, even those which include a non-compete obligation limited to five years, are considered as lawful restrictions on competition as long as they fulfil certain criteria listed in the block exemption regulation. eu competition law recognizes the terms of block exemption and ‘safe haven’, whereas the us antitrust law does not regulate any exemptions to vertical restraints. vertical restraints are interpreted in the us common law of antitrust in the light of the principle of rule of reason. an important difference in these jurisdictions is the definition of relevant markets, which is taken into consideration when evaluating the legality of a vertical agreement under competition law. both jurisdictions emphasize the market power of the producer, but the allowed percentage of market share varies between eu and us and only eu legislation gives emphasis to the market power of the distributor. these differences in competition legislations regulating vertical agreements can lead to conflicts when interpreting the legality of a distribution agreement. the definition of relevant product markets might lead to big international multisectoral companies abusing their dominant position by entering into exclusive arrangements. keywords: exclusive distribution; vertical agreements; vertical restraints; non-compete; competition law how to cite (chicago 16th): hanni, noona. "exclusive transnational distribution agreements and non-compete clauses in trade between european union and united states." udayana journal of law and culture 3, no. 2 (2019): 141-163. https://doi.org/10.24843/ujlc.2019.v03.i02.p02. doi: https://doi.org/10.24843/ujlc.2019.v03.i02.p02 * email/corresponding author: noona.s.hanni@utu.fi https://doi.org/10.24843/ujlc.2019.v03.i02.p02 mailto:noona.s.hanni@utu.fi exclusive transnational distribution agreements and non-compete clauses in trade between european union and united states noona hanni 142 1. introduction distribution agreements can be highly international and transnational in nature, but there is no international legislation or treaty regulating vertical agreements between private parties in such. in the literature regarding distribution agreements under international law it is stated that distribution agreements are often granted “sole” or “exclusive” rights of representation.1 in an exclusive distribution agreement it is prohibited to appoint another distributor for the territory of the representative by the supplier. 2 both in european union (eu) competition law and in united states (us) antitrust law, exclusive distribution agreements are considered as lawful restrictions on competition as long as they fulfil certain criteria. 3 distribution agreements play an important part in the internalization of trade: to ensure the sale of goods cross boarder it is important for national companies to be able to enter into exclusive distribution agreements with foreign distributors. this enables the efficient sale of goods abroad and makes it possible for even smaller national companies to expand the sale of their products across borders. since there is no international legislation regulating transnational vertical agreements between private factors, we need to look into national legislation and case law to understand how these exclusive contracts, and in particular the non-compete clauses, are interpreted. this article will focus on exclusive distribution agreements and vertical non-compete clauses that are concluded between private companies from eu and us jurisdictions. in eu competition law and us antitrust law the treatment of vertical restraints is somewhat different. 4 eu competition law recognizes the terms of block exemption and ‘safe haven’, whereas the us antitrust law does not regulate any exemptions to vertical restraints. vertical restraints are interpreted in the us common law of antitrust in the light of rule of reason. a rule of reason requires that the plaintiff needs to plead and prove that the defendant with market power has engaged in anticompetitive conduct. there are also some fundamental differences in some definitions of terms connected to competition law. these different ways of treating vertical restraints and definitions in the us and eu legislation can cause problems when companies operating in the eu and us are entering into an exclusive distribution agreement. eu competition law recognizes non-compete clauses in vertical agreements as lawful restrictions on competition 1 carole murray, david holloway, daren timson-hunt and clive m schmitthoff, schmitthoff: the law and practice of international trade. sweet & maxwell, 2012, 860. 2 ibid. 3 c-56/65 société technique minière v maschinenbau ulm and united states v. imperial chern. indust., ltd, 1952 4 james c. cooper, luke m. froeb, daniel p. o’brien, michael g. vita, a comparative study of united states and european union approaches to vertical policy. www2.owen.vanderbilt.edu/lukefroeb/froeb.papers/vertical/2006.gmu.pdf http://www2.owen.vanderbilt.edu/lukefroeb/froeb.papers/vertical/2006.gmu.pdf udayana journal of law and culture vol. 3 no. 2, july 2019 143 under certain rules.5 however, when we look into us antitrust law and case law we soon discover that non-compete clauses as vertical restraints are not recognized as such in us legislation. there have been some previous literatures that almost have a similar topic of the present article. incardona analyzed the ec competition rules applicable to distribution agreements, with an eye to the european case-law, economic analysis and comparing with the us antitrust experience.6 gajin studied how eu and us antitrust laws assess the legality of exclusive distribution agreement and evaluated the extent of these two legal systems can be seen compatible with the economic theory of exclusive territories.7 another comparative study can be seen in the work of chernobrovkin that focuses its analysis on the distribution agreements, both for the civil and the public legal framework (competition law) by comparing the legal frameworks on distribution and agency agreements in the european union and in the russian federation.8 macedo studied the distribution agreements in an online context that covers the discussion on vertical restraints and block exemption regulation dispose,9 while iacobucci and winter observed eu competition law on vertical restraints in a specific area of distribution over the internet.10 raad inquiried the effectiveness of eu competition policy and law and found that the commission and the european court of justice do not fully agree on the approach eu competition law should have.11 this article analyzes the differences in legislation of vertical restraints in the eu and the us, and looks at the case law to find out how these transnational agreements are compatible under the competition law of both countries. bearing in mind the legal framework regulating vertical restraints, the issue also will be addressed from an economic perspective. exclusive distribution agreements 5 comissions regulation (eu) no 330/2010 of 20 april 2010 on the application of article 101(3) of the treaty on the functioning of the european union to categories of vertical agreements and concerted practices (block exemption regulation), art. 5 6 rossella incardona, "distribution agreements under ec competition law." available at ssrn 1185371 (2005): 12-33 7 dragan gajin, “antitrust aspects of exclusive distribution agreements” (dissertation of doctor of juridical science, central european university department of legal studies, budapest, 2011), ii. www.etd.ceu.hu/2011/gajin_dragan.pdf 8 alexander chernobrovkin, “international distribution and agency agreements in russian law and practice in comparison to the european approach” (master thesis, advanced studies in european law, ghent university law school, july 2011), 6. 9 inês silva macedo, “distribution agreements: ban on internet sales-towards a more economic based approach" (master thesis, portuguese catholic university faculty of law, oporto school, may 2017), 6. https://repositorio.ucp.pt/bitstream/10400.14/23296/1/master's%20thesis%20%20in%c3%aas%20macedo.pdf 10 edward iacobucci and ralph a. winter, european law on selective distribution and internet sales: an economic perspective, antitrust law journal 81 (2016): 47. 11 puya raad, effectiveness of eu law and policy on vertical restraints at protecting competition." wroclaw review of law, administration & economics 3, no. 1 (2013): 119-125. https://doi.org/10.2478/wrlae-2013-0047 https://repositorio.ucp.pt/bitstream/10400.14/23296/1/master's%20thesis%20-%20in%c3%aas%20macedo.pdf https://repositorio.ucp.pt/bitstream/10400.14/23296/1/master's%20thesis%20-%20in%c3%aas%20macedo.pdf https://doi.org/10.2478/wrlae-2013-0047 exclusive transnational distribution agreements and non-compete clauses in trade between european union and united states noona hanni 144 between non-dominant firms are often considered to increase efficiency and thus competition and economic welfare both under eu and us legislation.12 however, as will be seen later in this article, the definition of relevant markets in exclusive distribution can lead to the abusive use of their dominant position by big multisectoral companies. this article focuses on the following legal and economic questions: how do the competition legislations regulating vertical agreements differ in eu and us and what kind of effect can transnational exclusive arrangements and non-compete clauses have on the efficiency of international trade? this issue is highly relevant in light of the constant internationalization of trade and the increasing growth of e-commerce. it should be acknowledged that this article further develops previous publication written by the author, 13 that has been modified. 2. result and analysis 2.1. distribution agreements in international trade 2.1.1. imports and exports as part of international trade the interaction between exporting and importing firms is at the center of international markets.14 in this context, exporters can be seen as manufacturers and importers as distributors. selling products to the final consumers involves production and distribution, and especially when exporting firms are engaging in international trade they must find distributors in order to enter foreign markets. this can be considered a costly activity, and these search costs can be seen as a barrier to international trade and can lead to fixed prices in exporting.15 however, without these kind of distribution arrangements small national companies could not engage in international trade. since markets are nationally regulated and dominated by local intermediaries, companies expanding their sales abroad need to make agreements with local distributors to benefit from their knowledge of their own markets.16 a distribution sector that stands between manufacturers and final consumers has implications for the magnitude of trade flows on an international level.17 2.1.2. exclusive distribution: free trade against fair competition 12 microsoft, 253 f.3d at 58 and green paper on vertical restraints in ec competition policy 1997, para 59 13 previous research carried out by author. noona hanni, “exclusive transnational distribution agreements and non-compete clauses in trade between eu and us” (bachelors thesis, university of turku, faculty of law, 2019). 14 felipe benguria, production and distribution in international trade: evidence from matched exporter-importer data. job market paper 2013. 2. 15 ibid., 3. 16 david arnold, , seven rules of international distribution, harvard business review november-december 2000 issue. www.hbr.org/2000/11/seven-rules-of-international-distribution 17 felipe benguria. op.cit., 4. http://www.hbr.org/2000/11/seven-rules-of-international-distribution udayana journal of law and culture vol. 3 no. 2, july 2019 145 vertical restraints, in general, are not regarded as suspicious per se or necessarily pro-competitive.18 when looking at exclusive distribution agreements in light of the principles of free trade, it appears that these agreements are contrary to the objectives of free trade. the principle of free trade means, basically, the elimination of all artificial trade barriers to the exchange of products across national markets. 19 exclusive distribution agreements cause territorial exclusivity, lead to artificial prices and cause artificial barriers that foreclose markets to new entrants and, therefore, cannot be accommodated into the principles of free trade.20 as non-compete clauses create an artificial barrier to trade they also fall outside the basic principles of free trade. the ability to enter into an exclusive distribution agreement can be regarded as crucial for small and medium-size companies planning to enter into international markets or expand cross borders. exclusive agreements often benefit both the supplier and distributor: it is more efficient for the supplier to focus the distribution of their products on one distributor in a certain area. this way the distributor can invest in the distribution of its products and does not have to worry about possible ‘free riders’. exclusive distribution increases the efficient distribution across borders and reduces transaction costs but can also decrease intra-brand competition between distributors. intra-brand competition is competition among retailers or distributors of the same brand. 21 anticompetitive effects are only likely to occur when inter-brand competition is weak and there are barriers to entry at the producer or distributor level.22 2.1.3. defining relevant markets: abuse of dominant market position in order to understand how distribution agreements can lead to anticompetitive effects and therefore affect international markets, it is important to understand the terms ‘relevant market’ and ‘abuse of dominant market position’. when defining the concept of relevant markets in eu law significance is given both to product markets and geographical markets. in the relevant commissions notice,23 these terms are defined explicitly: 'a relevant product market comprises all those products and/or services which are regarded as interchangeable or substitutable by the consumer, by reason of the products' characteristics, their prices and their intended use'. 'the relevant geographic market comprises the area in which the undertakings concerned are involved in the supply and demand of products or services, in which the conditions of competition are sufficiently 18 green paper on vertical restraints in ec competition policy (10) 19 mervyn martin, “"sole distribution agreements in the context of the general principles of free trade and competition." syracuse j. int'l l. & com. 35 (2007), 81. 20 ibid., 81-82. 21 oecd. glossary of statistical terms. www.stats.oecd.org/glossary/detail.asp?id=3153 22 green paper on vertical restraints in ec competition policy, loc cit 23 commission notice on the definition of relevant market for the purposes of community competition law (97/c 372 /03 ) (7-8) http://www.stats.oecd.org/glossary/detail.asp?id=3153 exclusive transnational distribution agreements and non-compete clauses in trade between european union and united states noona hanni 146 homogeneous and which can be distinguished from neighbouring areas because the conditions of competition are appreciably different in those areas'. the european commission (‘ec’) has also defined the term ‘abuse of dominant market position’: dominant position is not by itself anti-competitive, but if a company misuses its position to eliminate competition it is regarded as abuse of dominant position. examples of this kind of behavior are charging unreasonably high prices or making the sale of one product conditional on the sale of another product. 24 also, us antitrust law prohibits unfair methods of competition.25 eu and us regulations might appear to efficiently prohibit anticompetitive behavior that could affect trade on a national and an international level, but there are some loopholes that might lead to a big multinational company to abuse its dominant market position and get away with it. this has much to do with the definition of product markets discussed above. when taking into consideration big multisectoral companies that operate in a number of different product markets it becomes much more difficult to identify the abuse of dominant market position. one example of a big multisectoral company like this is nestlé.26 nestlé manufactures different food products and beverages and is the second largest owner of cosmetics brand l’oréal. as we can see from the definition of product markets given by the ec, food products, in general, do not constitute one relevant market, but the product markets need to be more specifically specified. the case of hoffman-la roche and co v commission27 from 1979 also supports this interpretation. in this case, the court held that different vitamins did not constitute a single market but that each type of vitamin constituted a separate market. the court held that the concept of relevant market implies that there can be effective competition between the products which form part of that market.28 when we take this interpretation into consideration, it might lead to that a big company operating in different product markets might enter into exclusive distribution agreements or any other actions considered as vertical restrictions on competition in allegedly all of these product markets. this is possible under competition law if the market share of the company in that specific product and geographic market does not exceed the level set out in competition legislation regulating vertical restraints. this might lead, therefore, to the hidden abuse of dominant market position and have a significant impact on international trade. 24 european commission. delivering for consumer: abuse of a dominant position. http://ec.europa.eu/competition/consumers/abuse_en.html 25 section 5 of the federal trade commission (ftc) act, 15 usc section 45 26 société des produits nestlé s.a. 27 hoffman-la roche and co v commission case 85/76 ecj 28 ibid., para 28. http://ec.europa.eu/competition/consumers/abuse_en.html udayana journal of law and culture vol. 3 no. 2, july 2019 147 2.2. exclusive distribution in european union law 2.2.1. exclusive distribution agreements a distribution agreement is a vertical agreement between a supplier and a distributor. in eu law, vertical agreements are defined in article 2.1 of the block exemption regulation as agreements that are concluded between two or more undertakings operating, in the context of the agreement, at different levels in the production or distribution chain; and that are related to the purchase, sale or resale of goods or services. this definition also covers supply and distribution agreements related to goods and services.29 a distribution agreement is exclusive when the supplier agrees to supply products only to one distributor within a certain territory or to a certain group of customers.30 it is important to note that under eu law exclusive distribution agreements are often held to be lawful, mainly because of their vertical nature: if there is a distribution agreement concluded between two horizontal competitors it may be considered as horizontal cartel or illegal share of relevant markets.31 in eu law distribution agreements fall within the scope of article 101 of the treaty on the functioning of the european union. article 101 applies to vertical agreements that may affect trade between the member states and that prevent, restrict or distort competition.32 however, the provisions of paragraph 1 of article 101 may be declared inapplicable in the case of an agreement between undertakings which contributes to improving the production or distribution of goods or promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit. 33 distribution agreements often fall within the scope of article 101(3) and are, therefore, within the scope of the block exemption, which is discussed below. 2.2.2. block exemption regulation (330/2010) when determining the legality of an exclusive distribution agreement in eu competition law we need to consider the block exemption regulation (330/2010) passed by the ec to find the rules regulating these agreements. 34 block exemption regulation provides a ‘safe haven’ to certain vertical agreements35 and grants an exemption under article 101(3) to restrictions of competition contained 29 ivo van bael and jean-francois bellis (van bael & bellis (firm). competition law of the european community. (kluwer law international cop., 5th edition) 2010. 186. 30 hesselink, martijn w., jacobien w. rutgers, odavia bueno díaz, manolo scotton, and muriel veldman. commercial agency, franchise and distribution contracts. walter de gruyter, 2009. 31 kirsi leivo, timo leivo, hannele huimala and mikko huimala, eu:n ja suomen kilpailuoikeus. (2. uudistettu painos. talentum) 2012. 32 guidelines on vertical restraints, 2010/c 130/01 (5) 33 treaty on the functioning of the eropean union 101(3) 34 see slaughter and may. the eu competition rules on vertical agreements. https://www.slaughterandmay.com/media/64575/the-eu-competition-rules-on-verticalagreements.pdf 35 richard whish and david bailey, competition law. 7th edition. oxford university press 2012. 629. https://www.slaughterandmay.com/media/64575/the-eu-competition-rules-on-vertical-agreements.pdf https://www.slaughterandmay.com/media/64575/the-eu-competition-rules-on-vertical-agreements.pdf exclusive transnational distribution agreements and non-compete clauses in trade between european union and united states noona hanni 148 in vertical agreements.36 such an exemption means that the vertical agreements fall outside the scope of article 101(1) and are thus allowed in eu competition law unless they contain certain forbidden restrictions.37 it is important to note that, usually, block exemption does not apply to vertical agreements between ‘competing undertakings’ unless they enter into a non-reciprocal vertical agreement.38 however, most vertical agreements fall within the scope of the block exemption regulation and will thus be block exempted: agreements will be exempted from article 101(1) if the supplier’s or buyer’s market share does not exceed 30 per cent of the relevant market in which it sells the contract goods or services. this is called the market share test. this requirement applies throughout the agreements duration, not only at the time the agreement is entered into. 39 using the market share test to determine the application of vertical agreements, block exemption reflects that only vertical restraints engaged in by firms with a certain degree of market power pose a significant threat to competition.40 the second requirement for block exemption to apply is that the agreement does not include any ‘hard core’ restrictions defined in article 4 of block exemption regulation.41 article 5 of the same regulation sets out some excluded restrictions where the exemption also does not apply. article 5 concerns specific obligations in vertical agreements. however, there are some exceptions to these excluded restrictions that do not cause these obligations in vertical agreement to fall out of the block exemption and the ‘safe haven’ as such. these exceptions are also known as non-compete obligations. 2.2.3. non-compete obligations the block exemption regulation sets out specific rules for non-compete obligations. article 5(1) of the block exemption regulation states that the exemption provided in article 2 shall not apply to any direct or indirect noncompete obligation, the duration of which is indefinite or exceeds five years. a non-compete obligation which is tacitly renewable beyond a period of five years shall be deemed to have been concluded for an indefinite duration. article 5(2) includes an exception to this 5-year rule; the time limitation of five years shall 36 ivo van bael and jean-francois bellis, op.cit., 185. 37 block exemption regulation, art. 2 38 ibid. 39 ivo van bael and jean-francois bellis, op.cit., 190. 40 ibid. 41 richard whish and david bailey, loc.cit. an example of a hard core restriction listed in article 4: restriction of the buyer's ability to determine its sale price, without prejudice to the possibility of the supplier to impose a maximum sale price or recommend a sale price, provided that they do not amount to a fixed or minimum sale price as a result of pressure from, or incentives offered by, any of the parties; udayana journal of law and culture vol. 3 no. 2, july 2019 149 not apply where the contract goods or services are sold by the buyer from premises and land owned by the supplier or leased by the supplier from third parties not connected with the buyer, provided that the duration of the noncompete obligation does not exceed the period of occupancy of the premises and land by the buyer. the definition of a non-compete obligation can also be found in the block exemption regulation article 1(1d): “a non-compete obligation means any direct or indirect obligation causing the buyer not to manufacture, purchase, sell or resell goods or services which compete with the contract goods or services, or any direct or indirect obligation on the buyer to purchase from the supplier or from another undertaking designated by the supplier more than 80 % of the buyer's total purchases of the contract goods or services and their substitutes on the relevant market, calculated on the basis of the value or, where such is standard industry practice, the volume of its purchases in the preceding calendar year.” 2.2.4. exclusive distribution and internet sales exclusive distributorship might lessen competition in the market of a certain good in a certain area.42 even though the forbidden hard core -restrictions listed in article 443 of block exemption regulation apply also to exclusive agreements, there is an exception to the restriction of territory and customer groups listed in article 4(b). this exception allows a supplier to restrict active sales by a buyer party to the agreement to a territory or a customer group. restriction of passive sales is not allowed under this exception and the commission has imposed 42 kirsi leivo, timo leivo, hannele huimala and mikko huimala, op.cit., 514. 43article 4 of the block exemption regulation: “the exemption provided for in article 2 shall not apply to vertical agreements which, directly or indirectly, in isolation or in combination with other factors under the control of the parties, have as their object: (a) the restriction of the buyer's ability to determine its sale price, without prejudice to the possibility of the supplier to impose a maximum sale price or recommend a sale price, provided that they do not amount to a fixed or minimum sale price as a result of pressure from, or incentives offered by, any of the parties; (b) the restriction of the territory into which, or of the customers to whom, a buyer party to the agreement, without prejudice to a restriction on its place of establishment, may sell the contract goods or services, except: (i) the restriction of active sales into the exclusive territory or to an exclusive customer group reserved to the supplier or allocated by the supplier to another buyer, where such a restriction does not limit sales by the customers of the buyer, (ii) the restriction of sales to end users by a buyer operating at the wholesale level of trade, (iii) the restriction of sales by the members of a selective distribution system to unauthorised distributors within the territory reserved by the supplier to operate that system, and (iv) the restriction of the buyer's ability to sell components, supplied for the purposes of incorporation, to customers who would use them to manufacture the same type of goods as those produced by the supplier; (c) the restriction of active or passive sales to end users by members of a selective distribution system operating at the retail level of trade, without prejudice to the possibility of prohibiting a member of the system from operating out of an unauthorised place of establishment; (d) the restriction of cross-supplies between distributors within a selective distribution system, including between distributors operating at different level of trade; (e) the restriction, agreed between a supplier of components and a buyer who incorporates those components, of the supplier’s ability to sell the components as spare parts to end-users or to repairers or other service providers not entrusted by the buyer with the repair or servicing of its goods. exclusive transnational distribution agreements and non-compete clauses in trade between european union and united states noona hanni 150 notable fines on firms breaching this restriction.44 the terms of active and passive sales are defined exclusively in vertical guidelines.45 clauses in vertical agreements restricting the use of internet sales affect directly to which areas and to which customer groups the distributor is allowed to sell. 46 the commission has defined explicitly in vertical guidelines when the restriction of internet sales is considered to be an unlawful restriction of passive sales. in principle, every distributor must be allowed to use the internet to sell products. in general, where a distributor uses a website to sell products that is considered to be a form of passive selling. if a customer visits the web site of the distributor and contacts the distributor and that contact leads to a sale, then it is considered passive selling. the same is true if a customer wishes to be kept automatically informed by the distributor and it leads to a sale.47 2.2.5. exclusive distribution and non-compete exclusive distribution agreements are not illegal per se under article 101 of the treaty on the functioning of the european union (tfeu) 48 . in vertical guidelines the ec has stated that exclusive distribution is exempted when both the buyer and the supplier pass the market share test, even when combined with a non-compete obligation limited to five years. 49 an exclusive distribution agreement containing a non-compete clause after the termination of the agreement, which prevents the distributor from participating in manufacturing, purchasing, selling or reselling, is not permitted unless this prohibition relates to competing products and is limited to the premises from where the distributor operated during the term of the agreement. it can also cover the know-how transferred from the manufacturer to the distributor. these post-term noncompete clauses are limited to a one-year duration. the restriction can also be unlimited to prevent disclosure of know-how that has not yet entered the public domain.50 2.3. distribution under united states antitrust law 2.3.1. vertical restraints us antitrust law differs from eu competition law and that causes some legal challenges in the interpretation and validity of distribution agreements between private companies from eu and us jurisdictions. the basis of us antitrust law lies in the sherman antitrust act from 1890. section 1 of that act is most often 44 commissions decision 2003/675 nintendo 45 vertical guidelines, para 51 46 kirsi leivo, timo leivo, hannele huimala and mikko huimala, eu:n ja suomen kilpailuoikeus. (2. uudistettu painos. talentum) 2012. 519. 47 vertical guidelines, para 52 48 c-56/65 société technique minière v maschinenbau ulm 49 vertical guidelines, para 152 50 block exemption regulation, art. 5 udayana journal of law and culture vol. 3 no. 2, july 2019 151 cited in cases regarding vertical restraints. section 1 prohibits ‘every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade’.51 one other important act regulating competition in the us is the clayton act. section 3 of the clayton act prohibits the selling of goods on the condition that the purchaser refrains from buying a competitor’s goods if it may lead to substantially lessened competition.52 the federal trade commission act, section 5, applies to vertical restraints as well. section 5 declares unlawful unfair methods of competition. however, us courts have for a long time treated antitrust as a common law field.53 vertical restraints are not expressly defined in us law. the common law of antitrust needs to be considered to find out what the courts have held to be vertical restraints. unlike the eu jurisdiction, us antitrust law does not regulate either any specific block exemptions or safe havens. 2.3.2. exclusive dealing under united states antitrust law exclusive distribution agreements are not illegal under us antitrust law.54 exclusive agreements can be necessary to prevent retailers and rival manufacturers from free-riding off of a supplier’s direct investments. 55 in the absence of monopolization, a us manufacturer may appoint an exclusive distributor for one foreign country or a part of a country with only a few antitrust consequences. this interpretation arises from the fact that, domestically, a us company can engage in such conduct.56 the bausch and lomb optical case57 is a leading case when it comes to interstate commerce and exclusive dealing. in this case, the supreme court upheld an arrangement where the soft-lite company became the sole distributor of bausch & lomb products, and bausch & lomb agreed not to sell their products to other competitors or to compete with soft-lite. in the schwinn case58 the court reaffirmed that a manufacturer may grant an exclusive territory to a distributor and agree not to compete with them or to appoint any other distributor to the area. the case held that this is permissible “if competitive products are already available to others”. 59 in contrast to this expansive interpretation when it comes to restrictions upon distributors, 51 joel mitnick, karen katzmerzak, peter k houston, vertical agreements united states. sidley austin llp. www.gettingthedealthrough.com/area/41/jurisdiction/23/verticalagreements-2017-united-states/ 52 15 usc, section 14 (2012) 53 frank h easterbrook, vertical arrangements and the rule of reason: antitrust law enforcement in the vertical restraints area. 54 united states v. imperial chern. indust., ltd, 1952 55 james c. cooper, luke m. froeb, daniel p. o’brien, michael g. vita, op.cit. 56 wilburg l. fugate, international distribution agreements. antitrust law journal 43 (1974), 541. 57 united states v bausch and lomb optical co, 321 u.s 707 (1944) 58 388 us 365 (1967) 59 ibid. http://www.gettingthedealthrough.com/area/41/jurisdiction/23/vertical-agreements-2017-united-states/ http://www.gettingthedealthrough.com/area/41/jurisdiction/23/vertical-agreements-2017-united-states/ exclusive transnational distribution agreements and non-compete clauses in trade between european union and united states noona hanni 152 exclusive purchase requirements do not have the same effects when applied to a foreign distributor but may have antitrust aspects if us commerce is affected.60 when trying to understand transnational exclusive distributorship in the context of us antitrust law the most important question is whether a us manufacturer may restrict the sales area of a foreign distributor. schwinn and other us cases have laid down the general rule: restrictions upon the territory of resale by a purchaser are illegal even if manufacturers may prescribe exclusive territories for distributors.61 the restrictions imposed by a us company on a foreign distributor not to sell in other countries would not seem to have the required substantive effect on us commerce and would thus appear not to be a violation of us antitrust laws.62 this said, a us manufacturer needs to consider the national laws of the country in which the distributorship arrangement operates. 2.3.3. rule of reason us courts evaluate most antitrust claims under a ‘rule of reason’. a rule of reason requires that the plaintiff needs to plead and prove that the defendant with market power has engaged in anticompetitive conduct. 63 in recent years most vertical restraints cases have been analyzed under the rule of reason. the us supreme court’s approach towards vertical restraints, in general, has been unanimous.64 in continental tv inc v sylvania inc. the court held that the rule of reason should apply to vertical non-price restraints as they might restrict intrabrand competition.65 the rule of reason analysis begins with two steps: first, the examination of the nature of the relevant agreement, and secondly, whether it has caused or is likely to cause anticompetitive harm. the main question to be considered is whether the agreement has or is likely to create or increase market power or facilitate its exercise. weighing the reasonableness of the agreement and the pro-competitive benefits against the harm to the competition are the essential aspects of the rule of reason. if the pro-competitive benefits outweigh the harm to competition, the agreement is most likely to be deemed lawful under the rule of reason. 66 in deeming the unreasonable restrictions as violations to us antitrust law a major criterion is the market power of the producer.67 the market share analysis used in the us by the courts to determine the market power of the 60 wilburg l. fugate, op.cit., 542. 61 ibid. 62 ibid. 63 areeda hovenkamp and herbert hovenkamp, antitrust law: an analysis of antitrust principles and their application, 4th edition 2017. 64 mervyn martin, op.cit., 91. 65 cont’l tv v gte sylvania inc. 433 us 1977 66 patrick j harrison, vertical agreements. law and business research, 2018. www.sidley.com/-/media/publications/va2018usa.pdf 67 valley liquors inc, v renfield imps. ltd., 678 f.2d 742, 745, 7th cir. 1982 http://www.sidley.com/-/media/publications/va2018usa.pdf udayana journal of law and culture vol. 3 no. 2, july 2019 153 producer has not always been consistent.68 in graphic products distributors, inc. v. itek corporation 69 the court held that 70-75% of market share constitutes market power whereas in rothery storage & van co. v. atlas van lines, inc.,70 the court held that market share of 20-25% or less does not constitute market power. however, in domed stadium71 “the lowest possible market share legally sufficient to sustain a finding of monopolization was between 17% and 25%.” in all these cases the definition of relevant geographic market was crucial when determining the percentages. 2.3.4. exclusive dealing and rule of reason exclusive dealing agreements may harm competition by foreclosing competitors of the supplier from marketing their products to that buyer. exclusive dealing is subject to challenge under us antitrust law. these arrangements have not been considered unlawful per se, and, therefore, such conduct is analyzed by the courts under the rule of reason. the most important factors in this analysis are the percentage of commerce foreclosed within a properly defined market and the anticompetitive effects of such foreclosure. exclusive dealing arrangements do not raise competitive concerns under us antitrust law per se: a plaintiff needs to show that they are likely to have a net deleterious effect on competition. 72 in cases like this, the share of the downstream market covered by exclusive contracts serves a deal breaking function; if the percentage of the market covered is small, the success rate for the plaintiff is typically also small.73 even if plaintiffs are able to prove substantial foreclosure, they must show in addition that the defendant’s agreements are likely to result in prices above the competitive level.74 it is on the plaintiff to prove that the market share covered by the contract is big enough to lead to foreclosure and that it results in prices above the competitive level.75 an important case in the us concerning the legality of exclusive dealing arrangements is microsoft, 253 f.3d at 58. as was stated in the case from united states court of appeal, the ability to distinguish between pro and anticompetitive vertical restrictions is not easy in practice and continues to be a central focus of antitrust scholarship, yet it is an important matter when we look at the exclusive dealing arrangements in the light of rule of reason. in this case it was noted that “[t]he challenge for an antitrust court lies in stating a general rule for distinguishing between exclusionary acts, which reduce social welfare, and 68 ibid. 69 graphic products distributors, inc. v. itek corp., 717 f.2d 1560, 1570 (11th cir.1983) 70 rothery storage & van co. v. atlas van lines, inc., 792 f.2d 210, 221 (d.c.cir.1986) 71 domed stadium, 732 f.2d at 490. 72 patrick j harrison, loc.cit. 73 tampa electric co. v. nashville coal co., 365 u.s. 320, 327-28 (1961) 74 barr labs., inc. v. abbott labs., 978 f.2d 98, 111 (3d cir. 1992) 75 ibid. exclusive transnational distribution agreements and non-compete clauses in trade between european union and united states noona hanni 154 competitive acts, which increase it.” 76 in apani southwest, inc. v. coca-cola enterprises77 the us supreme court explained the analysis of the landmark case of tampa electric. co. v. nashville coal co78 regarding the legality of exclusive dealing under us antitrust law. the court explained that when evaluating whether an exclusive dealing agreement has the probable effect of substantially lessening competition, a three-part inquiry needs to be undertaken. first, the relevant product market must be identified by considering interchangeability and cross-elasticity of demand. second, the relevant geographic market must be identified, by careful selection of the market area in which the seller operates and to which the purchaser can practicably turn for supplies. finally, a plaintiff must show that the competition foreclosed by the arrangement constitutes a substantial share of the relevant market. that is, the opportunities for other traders to enter into or remain in that market must be significantly limited. 2.3.5. non-compete clauses in united states legislation in exclusive dealing arrangements, the buyer is required to purchase products or services for a certain period of time from one supplier. these kind of exclusive agreements can involve a prohibition on the buyer to purchase from the supplier’s competitors, or a requirement committing the buyer to purchase all, or a substantial portion, of its total requirement of specific goods or services only from that supplier; in other words a direct or an indirect non-compete clause.79 a doctrine that the courts in the us apply to non-compete clauses is called the ‘blue pencil rule’. the blue pencil rule is a legal doctrine used in the common law countries where a court finds part of a contract void but leaves the other parts enforceable. courts in the united states seem to be divided when it comes to the application of this doctrine.80 some courts apply this doctrine to overly restrictive non-compete clauses rendering them null and void, whereas other courts merely modify these clauses into an enforceable less restrictive, clause.81 like exclusive dealing arrangements, non-compete clauses are generally evaluated under the rule of reason.82 interestingly, in recent years in the state of michigan, the michigan supreme court gave its decision in innovation ventures v. liquid manufacturing. 83 the 76 microsoft, 253 f.3d at 58 77 300 f.3d 620, 625 (5th cir. 2002) 78 365 u.s. 320, 327-28 (1961) 79 joel mitnick, karen katzmerzak, peter k houston, loc.cit. 80 filip de ly, "non-compete clauses in international contract-les clauses de nonconcurrence dans les contrats internationaux." int'l bus. lj (2006): 458. 81 ibid 82 miller canfield. michigan supreme court makes commercial non-compete agreements easier to enforce. www.millercanfield.com/newsletter478.html?click_source=sitepilot07!2718!c3vibwlzc2lvbnnabgv4b2xvz3kuy29t 83 innovation ventures llc v. liquid manufacturing llc, 315519 (mich. ct. app. 2014) http://www.millercanfield.com/newsletter-478.html?click_source=sitepilot07!2718!c3vibwlzc2lvbnnabgv4b2xvz3kuy29t http://www.millercanfield.com/newsletter-478.html?click_source=sitepilot07!2718!c3vibwlzc2lvbnnabgv4b2xvz3kuy29t udayana journal of law and culture vol. 3 no. 2, july 2019 155 court held that commercial non-compete agreements are enforceable so long as they satisfy the michigan antitrust reform act. this means that commercial noncompete agreements no longer need to satisfy the common law “balancing test” under the rule of reason. the innovation ventures case thus eliminates consideration of the non-competes effect on the restrained party unless it impacts the overall market.84 this judgement applies only in the state of michigan, but it is a good example of the development of common law around antitrust in the us. 2.4. transnational distribution agreements between european union and united states 2.4.1. vertical restraints in foreign trade in european union and united states previous sections have addressed the basic rules regulating exclusive distribution and non-compete clauses in the eu and the us. as has been noted, there are substantial differences in the antitrust legislation in both jurisdictions. eu law regulates precisely the framework in which an exclusive distribution agreement, including a non-compete clause, is regarded as lawful, whereas us antitrust law leaves open the question and analyses specific cases under the rule of reason. the us antitrust law highlights the percentage of markets foreclosed and the weighing between actual anti-competitive and pro-competitive effects, whereas eu legislation relies on the market share test and the list of hard-core restrictions. the us antitrust law is formulated in the interest of us consumers, so when a us company engages in trade with foreign companies and consumers they can soon discover that the us antitrust law regulating domestic affairs may not apply to foreign trade. such companies need to take into consideration foreign national competition regulations to avoid being in breach of the relevant law. 85 in comparison, eu competition legislation is formulated to ensure free trade in the single market. in the us, the plaintiff is obligated to show that a vertical agreement is likely to harm competition and reduce economic welfare, whereas eu competition law places a lower burden on the ec. eu law condemns many more vertical agreements than the us antitrust law and the treatment under eu law is harsher.86 even though both eu and us jurisdictions share the same beliefs regarding the theoretical and empirical effects of vertical restraints, the differences in treatment of vertical restraints can be explained by different loss functions.87 84 miller canfield, loc.cit. 85 wilburg l. fugate, op.cit., 541. 86 james c. cooper, luke m. froeb, daniel p. o’brien, michael g. vita, op.cit. 87 ibid, 290. exclusive transnational distribution agreements and non-compete clauses in trade between european union and united states noona hanni 156 2.4.2. jurisdiction and choice of law when it comes to the jurisdiction and choice of law when interpreting transnational distribution agreements, it is important to keep in mind the basic principle of freedom of contract. according to regulation (ec) no 593/2008 of the european parliament and of the council of 17 june 2008 on the law applicable to contractual obligations, also known as rome i, previously known as the rome convention, the parties to a distribution agreement are free to choose the law applicable to the contract.88 if the applicable law is not explicitly stated in the contract, article 4(1) of rome i will be applied; a distribution contract shall be governed by the law of the country where the distributor has his habitual residence. of course, this rule only applies to members of the treaty, which includes most eu countries. even though the choice of law is up to the parties to the contract, it is important to remember that the national competition laws will always regulate vertical restraints. this is why it is important to understand the national competition regulation applying to all of the parties involved in a distribution agreement. one interesting case from court of appeal in the united kingdom regarding the applicable law governing a termination of self-employed commercial agency contracts is ingmar gb ltd v eaton leonard technologies inc.89 this case dealt with the applicability of directive 86/653 on the coordination of the laws of the member states relating to self-employed commercial agents, which guarantee certain rights to commercial agents after the termination of agency contracts. the court ruled that the directive must be applied where the commercial agent carried on his activity in a member state, although the principle was established in a non-member country and a clause of the contract stipulated that the contract was to be governed by the law of that country. parties to the contract were established in the united kingdom and california. a clause of the contract stipulated that the contract was governed by the law of the state of california. in the case, it was agreed that “the freedom of contracting parties to choose the system of law by which they wish their contractual relations to be governed is a basic tenet of private international law and that that freedom is removed only by rules that are mandatory.” however, in this case, the court held that it is essential for the european community legal order that a principal established in a non-member country, whose commercial agent carries on his or her activity within the community, cannot evade those provisions by the simple expedient of a choice-of-law clause; the directive must thus be applied. although the directive, in this case, concerned agency contracts, the case is of importance when 88 regulation (ec) no 593/2008 of the european parliament and of the council of 17 june 2008 on the law applicable to contractual obligations 89 case c-381/98 be [2001] 1 all er (comm) 329 udayana journal of law and culture vol. 3 no. 2, july 2019 157 evaluating the applicability of law in commercial contract cases between eu and us. 2.4.3. exclusive distribution between european union and united states exclusive distribution agreements are generally compatible with competition both in the eu and the us regimes. the rule of reason in the us and the block exemption regulation in eu both seek to regulate the effects of exclusive distribution agreements in relation to the competitive process. 90 one reason for this could be the need to address the increasing transnational effects of anticompetitive practices. 91 in the us, exclusive dealing arrangements where the distributor is required to take all or part of his requirements from one supplier have limited antitrust significance when it comes to foreign suppliers and customers. most cases dealing with exclusive distributorship in the us are challenged under section 3 of the clayton act, but this act only applies where goods are sold or leased “for use, consumption or resale within the united states”. this provision applies to us imports but does not apply to the sale of goods in us export trade or for resale abroad. 92 as can be seen in the wordings of different legislation, the obligations of a distributorship sometimes rest on different parties. some authors93 argue that the obligations lie on the supplier, the others 94 that they lie on the distributor. however, exclusive distribution agreements can be regarded benefiting both parties of the agreement.95 2.4.4. non-compete clauses in international commercial agreements non-compete clauses in international transactions often raise competition law issues even in vertical relationships. antitrust laws determine the regulatory framework under which the validity of non-compete clauses is to be determined, and thus it is important to keep these national competition regulations in mind when drafting such clauses in international contracts.96 in addition to national competition laws, uniform law and self-regulation also can impact the validity of a non-compete clause in international agreements. for example, the international chamber of commerce (icc) has set out model contracts which contain noncompete clauses for commercial distributorship.97 however, when it comes to non-compete clauses in distribution agreements, self-regulation has a much 90 mervyn martin, op.cit., 92. 91 ernst-ulrich petersmann, "international competition rules for governments and for private business." journal of world trade 30, no. 3 (1996): 12-13. 92 wilburg l. fugate, op.cit., 544 93 barry rodger and angus a macclulloch, competition law and policy in the european community and the united kingdom. cavendish publishing ltd, 3rd edition. 2001. 94 joanna goyder, eu distribution law. (5th edition. hart publishing) 2011. 171-172. 95 ibid. 96 filip de ly, op.cit., 444. 97 ibid., 445. exclusive transnational distribution agreements and non-compete clauses in trade between european union and united states noona hanni 158 stronger impact since the official uniform law only regulates self-employed agents and franchise agreements.98 there are some important distinctions between legal systems regarding the validity of non-compete clauses, thus the question of which law applies to the non-compete clause might be important.99 there might be a tension between the law governing the contract and the mandatory national rules of the other national legal system governing restrictions regarding non-compete clauses. 100 general contract law in both common and civil law jurisdictions does not contain specific statutory provisions dealing with non-compete clauses, but the legal tradition is often derived from other statutory provisions, general principles of law or from case law, of course with some exceptions.101 national rules vary from country to country, which creates challenges when determining the validity of a noncompete clause in international commercial contracts. 3. conclusion us companies have been involved in proceedings before the ec involving prohibitions upon parallel import within the single market.102 when we talk about distribution agreements in cross border trade, we are principally talking about arrangements with foreign companies for the sale and export of goods from one country to another.103 this applies also in trade between eu and us companies. while antitrust and competition principles abound both in the us and abroad, the international aspects are not often treated separately. as we know from the case law, us antitrust acts apply to foreign commerce only in limited circumstances. competition law has traditionally been regarded as a national field of law and vertical restraints are regulated on a national level, even though the eu legislation has formulated certain criteria and obligations in restraints affecting trade between the member states. in transnational distribution, we need to take into account the possible differences in national legislation. as this article shows, there are some differences in the legislative regime of vertical restraints in eu and us, but the basic principles are the same. both regimes place emphasis on the market power of the producer.104 however, only eu law seems to emphasize the market power of the distributor. when evaluating the legality of an exclusive distribution agreement under both eu and us legislation, consideration needs to be given to the market power of the contracting parties, the percentage of markets foreclosed and the relevant markets the parties are operating in. the geographic 98 ibid., 446. 99 ibid., 448. 100 ibid., 449. 101 ibid. 102 wilburg l fugate, op.cit., 543. 103 ibid., 540. 104 mervyn martin, loc.cit. udayana journal of law and culture vol. 3 no. 2, july 2019 159 markets defined in paragraph 2.3. play an important role when determining the legality of an exclusive distribution agreement. under eu law, the emphasis is given to the fact that the conditions of competition are sufficiently homogeneous and the area can be sufficiently distinguished from neighboring areas in this regard.105 in the us case law, the emphasis has been given to “the market area in which the seller operates and to which the purchaser can practicably turn for supplies”. 106 this different understanding of geographic markets creates problems. from an eu perspective, there is some uncertainty when trying to predict the permissibility of exclusive distribution agreements when entering the us markets. the market share test used in eu law sets out the allowed market power of the contracting parties to a vertical agreement at 30%, but in the us the question is much more complicated. the market share analysis used in the us by the courts to determine the market power of the producer has not always been consistent the case law has deemed a market share of 70-75% as significant market power and 20-25% or less as not constituting such power. however, what happens to the companies falling between these percentages is something that the courts will evaluate on a case by case basis under the rule of reason. the evaluation of commercial non-compete clauses as vertical restraints can be somewhat more difficult given the different regulatory frameworks. the differences between legislation regarding commercial non-compete agreements in different states raises challenges to legal interpretation. the recent innovation ventures v. liquid manufacturing107 case seems to diminish the importance of the rule of reason as a core evaluator of non-compete clauses. exclusive distribution and non-compete clauses can be regarded as having both positive and negative effects on international markets. these forms of vertical restraints might be considered as artificial barriers to trade and pure competition, but they have their place in constantly growing international markets. in strong territorial markets like the eu and the us it is more important than ever to secure the entrance of smaller businesses into the markets to ensure fair competition and economic welfare, and to prevent the hidden abuse of dominant market position by big multisectoral companies which enter into distribution agreements that can be considered as restrictions on competition. most forms of distribution still occur within national borders, but in the constant internationalization of trade, the need for transnational agreements is growing. an international treaty regulating vertical restraints in international trade is unlikely because of the long-lasting legal tradition of national competition legislations, but a bilateral treaty between dominant markets such as the us and 105 commission notice on the definition of relevant market for the purposes of community competition law (97/c 372 /03 ) (8) 106 apani southwest, inc. v. coca-cola enterprises, 300 f.3d 620, 625 (5th cir. 2002) 107 innovation ventures, llc v. liquid manufacturing, llc, no. 150591 (july 14, 2016) exclusive transnational distribution agreements and non-compete clauses in trade between european union and united states noona hanni 160 the eu could be worth considering to ensure coherent interpretation of transnational distribution agreements. acknowledgment and disclaimer this article is an advanced version of a thesis written by the same author, university of turku, faculty of law, 2019. the substance contained in this academic paper is a personal view of the author and does not necessarily connect to author’s affiliation. bibliography book ezrachi, ariel, eu competition law: an analytical guide to the leading cases. 2nd edition. portland, or: hart pub 2010. goyder, joanna, eu distribution law. 5th edition. hart publishing 2011. henriksson, lars, distributionsavtal: vertikala avtal och 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2018. www.stats.oecd.org/glossary/detail.asp?id=3153 european commission. abuse of a dominant position. accessed december 17, 2018. http://ec.europa.eu/competition/consumers/abuse_en.html other document benguria, felipe. production and distribution in international trade: evidence from matched exporter-importer data. job market paper 2013. http://www.sidley.com/-/media/publications/va2018usa.pdf http://www.sidley.com/-/media/publications/va2018usa.pdf http://www.millercanfield.com/newsletter-478.html?click_source=sitepilot07!2718!c3vibwlzc2lvbnnabgv4b2xvz3kuy29t http://www.millercanfield.com/newsletter-478.html?click_source=sitepilot07!2718!c3vibwlzc2lvbnnabgv4b2xvz3kuy29t http://www.millercanfield.com/newsletter-478.html?click_source=sitepilot07!2718!c3vibwlzc2lvbnnabgv4b2xvz3kuy29t https://www.slaughterandmay.com/media/64575/the-eu-competition-rules-on-vertical-agreements.pdf https://www.slaughterandmay.com/media/64575/the-eu-competition-rules-on-vertical-agreements.pdf http://www.hbr.org/2000/11/seven-rules-of-international-distribution http://www.stats.oecd.org/glossary/detail.asp?id=3153 http://ec.europa.eu/competition/consumers/abuse_en.html e-issn 2549-0680 vol. 6, no. 1, january 2022, pp. 1-22 doi: https://doi.org/10.24843/ujlc.2022.v06.i01.p01 this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licenses/by/4.0/), 1 protection for the rights and interests of local communities adversely affected by multinational energy companies’ activities putu purwaningsih* master of arts in energy and environmental change programme, university of westminster, london, the united kingdom abstract foreign investments of multinational corporations (mncs) bring several advantages for the host states where they operate. in the case of foreign investment in the energy sector, the business activities of mncs have an impact on social and environmental issues that adversely affect the right and interests of the local communities. in terms of addressing such problems, some binding and non-binding international legal instruments were established and adopted by states and international organizations/bodies. this article discusses the sufficiency of the protection provided by international law for the local communities adversely affected by mncs in the energy sector especially with regards to human rights, environmental, and anti-corruption matters. this article argues that protection of the rights and interests of local communities from the activities of mncs are developed through an international legal framework, both general and bilateral treaties, as well as the national law of host states. keywords: energy; foreign investment; local communities; protection; social and environmental impacts. 1. introduction resource-rich countries, most of which are developing countries, tend to attract foreign investment to develop their resources through improved technology, expertise, and financial resources.1 in addition, foreign investments offer opportunities to take advantage of liberal trade, open markets, and supports for the export of goods.2 foreign investors operate their businesses in host states through multinational corporations (mncs), which are subject to the governance of the international investment law as and domestic law the host country. the presence of mncs in such countries not only provides advantages but also causes social and environmental impacts on the host states that raise global concerns.3 multinational energy * email/corresponding author: w1802460@my.westminster.ac.uk and anink23@gmail.com 1 kevin r. gray, “foreign direct investment and environmental impacts is the debate over?,” review of european community and international environmental law 11, no. 3 (2002): 306. 2 ibid. 3 see for example: subhan ullah, kweku adams, dawda adams, rexford attah boakye, “multinational corporations and human rights violations in emerging economies: does commitment to social and environmental responsibility matter?,” journal of environmental management 280 (2021); justine, kyove, katerina streltsova, ufuoma odibo, and giuseppe t. cirella, "globalization impact on multinational enterprises" world 2, no. 2 (2021): 219-221, fahad khalid, juncheng sun, guanhua huang, and chih-yi su. 2021. "environmental, social and governance performance of mailto:w1802460@my.westminster.ac.uk mailto:anink23@gmail.com protection for the rights and interests of local communities adversely affected by multinational energy companies’ activities putu purwaningsih 2 companies that operate energy-related activities such as exploitation of resources, trade, investment, transportation, and supply4 in those host states could put the environmental and human rights of the local population at risk. therefore, sufficient protections for those adversely affected are required. international law regulates and provides protections for all parties involved in foreign investments. these parties include investors, host countries, and local communities that are affected by the activities of mncs engaged in the energy sector. particularly for local communities, human rights protection, environmental protection, and anti -corruption protection are among the protection offered. this can be evidenced from the notable number of cases before icsid regarding the environmental matters of local communities.5 the provisions and implementation of these protections depend on the national level,6 while host states often do not have an adequate capacity to implement these protections because of the imbalanced position with investors due to investors’ powerful capability in the economic sector, particularly in controlling the host states’ government.7 as a result, investors might set investment conditions for the favor of their businesses, such as adhering to the bare minimum of environmental or other social standards.8 furthermore, the lack of ability to resolve complex cases because of the absence of substantive and procedural law when resolved through litigation also drives the implementation even harder.9 in these circumstances, the development of foreign investment law has begun to change, recognizing that mncs must play a role in providing this protection. several instruments outline mncs' obligations to protect the rights and interests of local communities. some of the obligations in those instruments are legally binding, such as those found in bilateral investment treaties (bits), while others, such as the oecd guidelines and other provisions, are not. therefore, some provisions in the instruments cannot be imposed directly on mncs. in general, international law has regulated the obligations that mncs must carry out, such as the obligations to respect host state laws, human rights, and various environmental obligations, including seeking economic chinese multinationals: a comparison of state and non-state -owned enterprises," sustainability 13, no. 7 (2021): 4-8. 4danae azaria, “community interest obligations in international energy law,” community interest across international law 1, no. 1 (2018): 297. 5 magali garin respaut and andrew willcocks, “environmental issues in isds,” https://jusmundi.com/en/document/wiki/en-environmental-issues-in-isds, para 4. 6 michael anderson, “transnational corporations and environmental damage: is tort law the answer,” washburn lj 41, no. 3 (2002): 399. 7 see for example françois ouzelet, “human rights and multinational corporations: the united-nations policies and companies’ responsibilities to protect human rights in business” (master’s thesis, department of management university of exeter, september 2018): 4, 7, 32. 8 iman prihandono, “barriers to transnational human rights litigation against transnational corporations (tncs): the need for cooperation between home and host countries,” journal of law and conflict resolution 3, no. 7 (2011): 90. 9 ibid. https://www.linkedin.com/in/magaligarin/ https://www.linkedin.com/in/andrewwillcocks/ https://jusmundi.com/en/document/wiki/en-environmental-issues-in-isds udayana journal of law and culture vol. 6 no. 1, january 2022 3 development in the country but not interfering with home state domestic politics.10 however, the issue of environmental damage and human rights violations still frequently arises. therefore, local communities that are adversely affected need to hold mncs responsible for the negative impacts caused by mnc’s business operations. various mechanisms are available for taking responsibility and resolving these problems, such as voluntary programs conducted by mncs to minimize harm and litigation procedures through national and transnational courts. however, if victims decide to sue mncs over human rights and environmental violations, they might face certain barrie rs. this article discusses the sufficiency of the protection provided by international law for the local communities adversely affected by mncs in the energy sector, especially with regards to human rights, environmental, and anti-corruption matters. the analysis, opinion, and argument are mainly established based on general international law, both binding and nonbinding instruments; bilateral investment agreements; national law of states; scientific papers, and other relevant documents. the analytical parts are divided into foreign investor obligations and local communities’ interest; various international legal framework and investment law protections especially in the conte xt of human rights and environment as well as concern on anti-corruption; corporate social responsibility as a voluntary approach; and mechanisms to redress harm from energy activities. finally, this article presents a conclusion. 2. result and analysis 2.1. foreign investor obligation and the local communities’ interest the relationship amongst investors and host states is generally undermined by domestic law of host countries, bits, contract concluded between investors and host countries, and other international agreements that are relevant to investment activities. several regulations relating to activities that may establish responsibilities for the investor in the sense of foreign investment law are subject to both domestic law and international law.11 these obligations can be found in the treaty or non-treaty source that provides various considerations for the tribunal in terms of proceeding with dispute settlement related to investment activities.12 for many years, international investment law, a field of international law that governs relationships between states and foreign investors, focused on protecting the investors’ interests, and dispute settlements between investors and host states used bits as a tool to provide such protection.13 10 m. sornarajah. the international law on foreign investment. 4th ed. (cambridge: cambridge university press, 2017): 176. 11 barnali choudhury, “investor obligations for human rights,” icsid review foreign investment law journal 35, no. 1 (2020): 88. 12 ibid. 13 see riya rathi, “scope and evolution of international investment law”, latest law.com, 23 sep 2020, https://www.latestlaws.com/articles/scope -and-evolution-of protection for the rights and interests of local communities adversely affected by multinational energy companies’ activities putu purwaningsih 4 however, it shifted into a more bargaining and negotiable relationship between mnc and host state14 which reflects the fact that foreign investment brings not only advantages, but also adverse effects to the host states and particularly local communities. consequently, the issue of investors’ responsi bilities regarding the local communities’ interests is now taken into account by scholars and both central and local governments.15 imposing obligations on investors is a difficult process due to the argument that mncs do not possess a legal personality under international law16 that is generally conferred by states and intergovernmental organizations. this situation makes it difficult to provide a balanced position between investors and the host state. however, the existence of a bit as a binding instrument between the parties who are bound by it provides an opportunity to create a more balanced position. the provisions set out in bits have recently been refocused, with some of the latest generation putting socially and environmentally related objectives together with investment policy objectives.17 the enlargement of the investors’ scope of responsibility in the new generation of bits is, in some instances, reflected in the preamble language where the social and environmental concerns coexist with the economic goals of the investment.18 in addition to bit provisions, domestic law is also another source of investor obligations. as a business entity operating in the host state's jurisdiction, investors must adhere to the host state's contract, tort, and environmental laws, as well as domestic anti-corruption regulations.19 for example, in the cortec v. kenya arbitration, the investor failed to comply with the environmental assessment required by kenyan law, which caused the investor precluded to initiate arbitration.20 other investor obligations include respecting property rights and contractual obligations involving local communities. these obligations protect the property rights of those who live nearby the operations of mncs, allow locals to pass through investor property, create community benefits international-investment-law/. see also valentina vadi, “jus cogens in international investment law and arbitration,” netherlands yearbook of international law (2015): 361. 14 erja kettunen, “on mnc-host government relations: how finnish firms respond to national and regional policies in asean, the copenhagen journal of asian studies 34, no. 2 (2016): 56-60. 15 see for example how the interaction between local governments and mnc by considering the interests of local communities as well as in ensuring they will benefit from the foreign direct investments in k. kuswanto, herman w. hoen & ronald l. holzhacker, “bargaining between local governments and multinational corporations in a decentralised system of governance: the cases of ogan komering ilir and banyuwangi districts in indonesia,” asia pacific journal of public administration 39, no. 3 (2017): 191, 197. 16 m. sornarajah, op.cit., 174. 17 suzanne a. spears, “the quest for policy space in a new gene ration of international investment agreements,” journal of international economic law, 13 no. 4 (2010): 1044. 18 ibid. 19 barnali choudhury, op.cit., 93. 20 ibid. udayana journal of law and culture vol. 6 no. 1, january 2022 5 agreements, and finally, contribute to local values and prosperity.21 these obligations of foreign investors mentioned above indicate that investors are obligated to protect the rights and interests of the host state’s communities, mainly the local communities who live near the project site as they are most frequently affected. the local community that is affected by energy-related activities such as exploration and exploitation could be indigenous communities, rural communities, or small communities. however, since many natural resources extraction took place in remote areas are still inhabited by indigenous people, these activities mostly impact indigenous people whose livelihoods are still heavily reliant on those territories. inter-american commission on human rights has noted some impacts created by oil exploitation activities such as production sites and waste pits built right next to people’s habitation, roads have been built through the traditional indigenous territory, seismic blasts have been detonated in hunting grounds, and sacred areas, such as certain lakes have been trespassed.22 the united nations declaration on the rights of indigenous peoples mentions that indigenous people are protected by a full enjoyment of all human rights as recognized in the universal declaration of human rights (udhr) and international human rights law.23 furthermore, the indigenous and tribal peoples convention 1989 provided a comprehensive instrume nt to protect indigenous people’s rights including human rights and environmental protections. article 7 of the indigenous and tribal peoples convention 1989 stated that “governments shall take measures, in cooperation with the peoples concerned, to protect and preserve the environment of the territories they inhabit”.24 apart from the protection of indigenous people, provisions regarding energy activities generally regulate the obligation to protect the interests of all communities affected by energy activities. interests such as conservation of energy sources, environmental protection, and human rights must be contained in domestic energy policies that are relevant to international provisions because the state, in this case, the host state government, permits energy activities within its jurisdiction.25 in this situation, the host 21nicolas m. perrone , “the “invisible” local communities: foreign investor obligations, inclusiveness, and the international investment regime”, ajil unbound 113 (2019): 17. 22 barisere rachel konne, "inadequate monitoring and enforcement in the nigerian oil industry: the case of shell and ogoniland," cornell international law journal 47, no. 1 (2014):197. 23 united nations declaration on the rights of indigenous peoples, (2007), art. 1, https://www.un.org/development/desa/indigenouspeoples/wpcontent/uploads/sites/19/2018/11/undrip_e_web.pdf 24 international labour organization, “indigenous and tribal peoples convention (1989)”https://www.ilo.org/dyn/normlex/en/f?p=normlexpub:12100:0::no::p12100_in strument_id:312314 25 danae azaria, op.cit., 315. https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/undrip_e_web.pdf https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/undrip_e_web.pdf https://www.ilo.org/dyn/normlex/en/f?p=normlexpub:12100:0::no::p12100_instrument_id:312314 https://www.ilo.org/dyn/normlex/en/f?p=normlexpub:12100:0::no::p12100_instrument_id:312314 protection for the rights and interests of local communities adversely affected by multinational energy companies’ activities putu purwaningsih 6 state should be able to govern and protect the interests of local communities beyond the fact that certain of the investors' commitments are non-binding. the oil spill in the niger delta demonstrates how mncs' actions in the energy sector have harmed local communities. the niger delta is a large oil resource in nigeria that was first exploited by royal dutch shell in 1958. many local communities, notably those from ogoniland, live in the niger delta. the survival of the ogoni people is primarily reliant on natural resources. although the profit created by the area is substantial, just a small portion of it has trickled down to the local communities. instead, the oil sector has exposed people like the ogonis to oil spills, gas flares, and major environmental contamination, which has ruined farms, streams, and fishing, all of which are vital resources for local communities.26 in the case of the niger delta, mnc did not play a single role in such impacts on the local communities. nigerian domestic law, conflict of interest, and lack of effective sanctions for violations of environmental laws contributed to the disaster.27 nigerian government applied poor monitoring causing the incident assessment only relies on shell’s assessment, benefiting this mnc in position to swerve from the accident.28 the nigerian government also held majority partnership in its joint venture with shell. this situation then created a conflict of interest within the nigerian government, that is between the nigerian department that has authority to regulate environmental laws and the ministry of energy which is responsible for oil production.29 the lack of enforcement of environmental legislation in nigeria is also related to the lack of severe sanctions. there is no incentive for mncs to protect the environment in which they operate if there are no actual consequences for environmental violations. failure to notify an oil spill to the relevant government agency, for example, will result in a fine of $3,500, whereas failing to clean up an oil spill at an affected location will result in a fine of only $7,000. these fines pale in comparison to those enforced on mnc in the case of an oil disaster in the united states.30 2.2. protection in international law international law has provided broad protection for parties involved in international investment activities. such protection generally appeared in documents adopted by international organisations and bodies of the united nations. the organization for economic cooperation and development (oecd) issued an instrument that aims to establish a more stringent legal framework, which is oecd guidelines for multinational enterprises (oecd guidelines). the guidelines are recommendations from member-state 26 barisere rachel konne, loc.cit. 27 ibid. 28 ibid., 47. 29 ibid., 195. 30 ibid., 196. udayana journal of law and culture vol. 6 no. 1, january 2022 7 governments to be used in governing the practices and operations of mncs in their territories. however, since these guidelines are voluntary and non binding, the oecd guidelines are considered as soft law.31 these guidelines need to be adopted into domestic law to increase the likelihood that they will become legally binding. in general, oecd guidelines’ chapters are regulated in the following areas:32 (1) disclosure, (2) human rights, (3) employment and industrial relations, (4) environmental issues, (5) efforts to combat bri bery, (6) solicitation of bri bery and extortion, (7) consumer interest, (8) science and technology, (9) competition and (10) taxation. oecd guidelines also stress compliance with domestic law as the primary obligation of mncs according to the concepts and principles of the guidelines.33 moreover, concerning mncs’ obligations and the rights and interests of local communities, there are several protections provided by international law. the united nations economic and social council, through its commission on human rights also adopted a norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, u.n. doc. e/cn.4/sub.2/2003/12/rev.2 (2003). this document uses the term, ‘transnational corporations (tncs) and other business enterprises’ rather than mnc, although its preamble repeatedly mentions the term ‘multinational enterprises (mnes).” despite deep academic analysis may able to distinguish the concept behind each term, this paper tends not to make a distinction meaning and used them in a general understanding. the norms determine obligations in which tnc and other business enterprises shall carry out their activities ac cording to the national law of the host state and relevant international law about the environment and human rights, in a manner contributing to the wider goal of sustainable development.34 besides, it emphasises the respect of tnc and other business enterprises to the applicable laws regarding the prohibition of corruption.35 further, the norms underline the obligation of tnc and other business enterprises to give proper reparation for local communities that have been adversely affected by failures to comply with these norms.36 the following sub-sections will elaborate more on international law aspects on human rights protections, environmental protections, and the concerns on anti-corruption. 31 kinnari bhatt and gamze erdem türkelli, “oecd national contact points as sites of effective remedy: new expressions of the role and rule of law within market globalization?,” business and human rights journal 6, no. 3 (2021): 444. 32 oecd, “oecd guidelines for multinational enterprises, 2011”, available from https://doi.org/10.1787/9789264204881-zh. 33 ibid. 34 the united nations economic and social council, through its commission on human rights also adopted a norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, u.n. doc. e/cn.4/sub.2/2003/12/rev.2 (2003), para 14. 35 ibid, para 10. 36 ibid, para 18. protection for the rights and interests of local communities adversely affected by multinational energy companies’ activities putu purwaningsih 8 2.2.1. human rights protections a peremptory norm of general international law, generally called jus cogens, is given a special position in international law. 37 in international law, some types of human rights have been regarded as jus cogens, and the state is obliged to take measures to protect such rights.38 in specific, international investment law that mainly focuses on the protection of foreign direct investment seems far outside the traditional scope of jus cogens norms (such as the prohi bition of torture, slavery, etc.)39 in host states which most of them are developing countries, promoting human rights protection should be seen as a consequence of a better economy. however, in practices investors have started to exploit low human rights standards to increase their revenues. in thi s case, international law does not deal efficiently with those who violate human rights as there is no clear established mechanism to hold investors’ liability due to companies are not being parties to the international instrument. the oecd guidelines require mncs to comply with general provisions regarding human rights as conducted in international law. the minimum standards regulated in the oecd guidelines are the provisions contained in the international bill of human rights, including udhr. this instrument also includes provisions covering the rights of indigenous people, minorities, disabled people, migrant workers including families, and other provisions stipulated in the oecd guidelines.40 in sequence, oecd guidelines state that companies must avoid all violations of human rights in their activities and must mitigate any negative impacts they may cause with their overall business activities. oecd guidelines also require companies to perform human rights due diligence and adopt a commitment policy to protect human rights. finally, it also requires companies to provide a process of legitimacy in correcting adverse impacts on human rights if they are found to have caused these impacts.41 another instrument that regulates the protection of human rights is the united nations guiding principles on business and human rights (un guiding principles). this guiding principles emphasises the responsibility of the government to respect and protect human rights. the un guiding principles set forth that they are applied not only to public actors, but also private ones regardless of the ownership, size, and place where the business operates. the guiding principles highlight that the obligation to respect human rights ‘exists independently of states’ abilities and/or willingness to fulfill their human rights obligation.42 this instrument widely regulates 37 vienna convention on the law of treaties (1969), art. 53 and art. 64. 38 see surya p subedi. international investment law: reconciling policy and principle (london: hart publishing, 2020), 213. 39 valentina vadi, loc.cit. 40 oecd, op.cit., 32. 41 ibid. 42 united nations, “the un guiding principles on business and human rights,” (2011): 3. udayana journal of law and culture vol. 6 no. 1, january 2022 9 obligations and responsi bilities of the state and companies on a large scale . however, this document does not have sufficient mechanisms to make it legally binding. 2.2.2. environmental protections the provisions of international law require states to protect the environment. article 192 of the united nations convention on the law of the sea (unclos) stipulates that its state parties have an obligation to protect and preserve the marine environment. article 193 of unclos then emphasizes that in the case that a state uses its sovereignty to exploit natural resources, it must comply with domestic provisions regarding environmental policies based on the obligation to protect the marine environment.43 the extraction of offshore oil and gas deposits on the continental shelf, as well as the development of wind farms in the exclusive economic zone, are covered by these provisions.44 oecd guidelines also provide non-binding recommendations agreed upon by member-state governments regarding the environment. the preface of the oecd guidelines emphasizes that the provision is aimed to encourage mncs to contribute to economic, environmental, and social aspects and at the same time reducing the issues that may arise in their operational activities.45 one of the general provisions stipulated by oecd guidelines on the environment is to build and maintain an environmental management system. this provision includes the obligation of companies to conduct evaluations not only related to the environment but also health and safety in their business activities. in addition, companies must also set goals to increase environmental sustainability and resource utilization in accordance with the national policies and international environmental commitments. the environmental management system provides an environmental framework that suits the companies’ business needs, so that it can control its environmental impact and make it an operational consideration. with this system, all communities associated with company activities can play a role in protecting the environment from the company’s activities.46 the oecd guidelines require companies to maintain communication with local communities affected by their environmental, health, and safety policies. this communication should be able to provide information to all stakeholders, including workers, consumers, suppliers, and contractors, as 43 united nations convention on the law of the sea, art. 192. https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf 44 danae azaria, op.cit, 313. 45 elisa morgera, “an environmental outlook on the oecd guidelines for multinational enterprises: comparative advantages, legitimacy, and outstanding question in the lead up to the 2006 review,” georgetown international environmental law review, 18 no. 4 (2006): 757. 46 oecd, op.cit., 42. https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf protection for the rights and interests of local communities adversely affected by multinational energy companies’ activities putu purwaningsih 10 well as the officials of local communities and environmental concerns. other issues stipulated by the oecd guidelines include mitigating all environmental impacts, paying attention to scientific and technical considerations, maintaining contingency plans, and striving to improve the company's environmental performance.47 2.2.3. anti-corruption recently, the practice of corruption, including bribery, has received special attention in foreign investment activities because of the adverse effects it causes. local communities are affected mostly by the detrimental impact of this practice as the state's ability to protect its citizens is weakened, especially in developing countries. the international community considers that eradicating corruption is not only the responsibility of the host state but also of the investors, who should play a role in this effort. thus, the provisions regarding foreign investment also regulate the eradication of corruption through both soft law and hard law instruments. the united nations convention against corruption (uncac) made it illegal to supply and demand corrupt acts. this document indicated critical policies, including anti-corruption, that should be developed as part of the bit reformation.48 the majority of anti-corruption provisions are found in the bits, which contain state pledges to combat corruption in conformity with domestic laws.49 furthermore, some states include anti-corruption provisions to promote international anti-corruption cooperation and raise standards by referencing international and regional anti -corruption conventions.50 oedc guidelines provide a variety of provisions regarding combating bri bery, bribe solicitation, and extortion. this document forbids multinational companies to be involved, directly or indirectly, with anything related to bribery, bribe solicitation, or extortion.51 moreover, the provisions on fighting bribery are also stipulated in the oecd convention on combating bribery of foreign public officials in international business transactions (1997).52 except for the convention that has a legally binding nature, oecd guidelines are soft law instruments and the provisions need to be incorporated into a legally binding document such as bits and adopted in the domestic host state law to force companies to be involved in this effort. 47 ibid. 48 yueming yan, “anti-corruption provisions in international investment agreements: investor obligations, sustainability considerations, and symmetric balance,” journal of international economic law 23 no. 4, (2020): 991. 49 ibid, 992.. 50 ibid 51 oecd, op.cit., 42. 52 article 3 (1) of the oecd convention on combating bribery of foreign public officials in international business transactions determines that bribery of a foreign public official shall be punishable by effective, proportionate and dissuasive criminal penal ties of the party’s own public officials. udayana journal of law and culture vol. 6 no. 1, january 2022 11 2.3. protection in investment law 2.3.1.human rights protections within the development of international investment practices, the issue of possible threats to human rights is commonly discussed. the source of this threat is that investors often put the minimum standards of human rights due to economic benefit. as a result, foreign investment project sponsors or lenders have recently begun to strengthen their commitment to human rights and environmental protection;53 meanwhile, various international investment agreements also pursue such protections. the new generation of bits provides broader provisions related to human rights that align with the increasing number of human rights issues in arbitral proceedings. the morocco-nigeria bit is an example of a bit that has a comprehensive approach regarding human rights. at the same ti me, the document links investment protection with human rights protection. the morocco-nigeria bit does not only include human rights provisions in its preamble but also regulates them in more detail in its body text. the preamble of the general provisions regarding human rights emphasizes on non-economic concerns. this allows the arbitral tribunal to have a balance between human rights and economic interests when interpreting the treaty provisions.54 the morocco-nigeria bit body text regulates substantive provisions related to human rights, both with provisions on practical relevance and more stringent provisions, as well as several provisions that refer directly to investors. article 15(5), which regulates labor and human rights, and states that “each party shall ensure that its laws and regulation provide for high levels of labor and human right protection...”55 clearly shows that the provision requires strict respect for human rights. however, the provision is then limited by the clause “...appropriate to its economic and social situation...”, which allows parties to the treaty to use practical relevance when determining their contributions and interpreting the treaty.56 furthermore, article 15(6) states that “all parties shall ensure that their laws, policies, and action are consistent with the international human right agreement to which they are a party”57 which emphasizes that each state's investment regulation must comply with the party's agreed-upon human rights obligations. 53 sheldon leader, “human rights, risks, and new strategies for global investment”, journal of international economic law, 9 no. 3 (2006): 657. 54 niccolo zugliani, “human rights in international investment law: the 2016 morocco nigeria bilateral investment treaty,” international and comparative law quarterly, 68 no. 3(2019): 764. 55 morocco-nigeria bit, “reciprocal investment promotion and protection agreement between the government of the kingdom of morocco and the government of the federal republic of nigeria,” (2016): 14. https://investmentpolicy.unctad.org/internationalinvestment-agreements/treaty-files/5409/download 56 niccolo zugliani, loc.cit. 57 morocco-nigeria bit, loc.cit. https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5409/download https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5409/download protection for the rights and interests of local communities adversely affected by multinational energy companies’ activities putu purwaningsih 12 article 18 (2, 3, and 4) of the morocco-nigeria bit places a stricter provision directly on investors, stating that they: “… ‘shall uphold human rights in the host state,’ ‘act in accord ance with core labour stand ards as required by the ilo declaration on fund amental principles and rights of work,’ and ‘shall not manage or operate the investment in a manner that circumvents international environmental, labour and human rights obligation to which the host state and/or home state are parties.”58 furthermore, imposing such provisions on investors in hard-law language binds the state parties and the investors to the human rights provisions. 2.3.2. environmental protections as legally binding agreements, bits bind the parties more firmly to carry out the environmental provisions regulated by them. the morocconigeria bit requires companies to have environmental protection policies.59 in addition to regulating the obligations of the parties, the morocco-nigeria bit also imposes direct provisions on investors as stated in article 14. investors must comply with an environmental assessment according to their investment objectives as required by the host state law.60 the precautionary principle must be applied to the environmental assessments of the investors and host states.61 furthermore, the investors also have to conduct social impact assessments according to the standards adopted by the parties.62 the 2012 us model bilateral investment treaty dwells in detail on environmental issues in article 12. the environmental objectives in this new model treaty are reinforced by an obligation to take into account international documents signed by the parties. this means the bit is not limit the scope of states’ power and investors to the provision on the treaty. in addition, the parties are also required to enforce domestic environmental laws to ensure high environmental standards, as well as provide opportunities for public participation regarding environmental concerns.63 in contrast with the 2012 us model bit, the model agreement promotion and protection investment the kingdom of norway (norway model bit) does not consider the environmental issue in detail separately. instead, article 11 of the norway model bit focuses on the prohibition of lowering the range of standards including environmental measures.64 58 ibid. 59 ibid. 60 morocco-nigeria bit, op.cit, 13. 61 ibid. 62 ibid. 63 2012 u.s. model bilateral investment treaty https://ustr.gov/sites/default/files/bit%20text%20for%20aciep%20meeting.pdf 64 draft version 130515 model agreement promotion and protection investment the kingdom of norway: https://ustr.gov/sites/default/files/bit%20text%20for%20aciep%20meeting.pdf udayana journal of law and culture vol. 6 no. 1, january 2022 13 the provisions in the bits that directly impose obligations on investors are also a step forward to increase the role of investors in taking responsibility for the adverse effects that occur due to the company's activities. nevertheless, although some of the other model bits do not address environmental concerns,65 the current development of bits shows the responsibility of investors and host states to enhance environmental protection by providing wider policy space to integrate environmental concerns into their business. 2.3.3.anti-corruption incorporating the substance of corruption issue into bits is necessary to emphasize the obligation of all parties to participate in eradicating corruption and become a reference in resolving investment problems related to corruption practices. in the morocco-nigeria bit, article 17 regulates some provisions regarding anti-corruption, including regulating investors’ obligations. investors are prohibited from engaging in corrupt practices, and if they violate this rule, they will be considered in violation of the bit. hence, the investors will not enjoy protection under the bit. 66 in an even stricter sense, investors that violate this provision are also deemed to have violated the domestic law in the host state so that they can be prosecuted.67 the preamble of norway model bit states that the parties agreed to eliminate corruption including bribery in international investment practices. furthermore, article 14 of the norway model bit expressly states that if an investment is harmed by corruption, an investor loses the right to seek protection in arbitration. this model treaty also emphasizes the relevance of anti-corruption problems in the state -investor relationship, just as they are for other issues like the environment and labour. 68 the other model bit that also adopted anti-corruption measures is the model text for the indian bilateral investment treaty (india model bit). article 12 of the india model bit advises investors to incorporate anti-corruption standards in their activities and internal policies. in addition, article 13.3 of the india model bit also emphasises that investor may lose their right to arbitration access in terms of the investment that has been made through corruption.69 the number of provisions related to anti-corruption shows that corruption practices have been a concern in investment law. however, the occurrence of https://www.regjeringen.no/contentassets/e47326b61f424d4c9c3d470896492623/draftmodel-agreement-english.pdf 65 see for example kathryn gordon and joachim pohl, “environmental concerns in international investment agreements: a survey, oecd working papers on international investment,” oecd publishing, 2011, 23-24. 66 okechukwu ejims, “the 2016 morocco-nigeria bilateral investment treaty: more practical reality in providing a balanced investment treaty?,” icsid review 34 no. 1 (2019): 5. 67 ibid., 15. 68 draft version 130515 model agreement promotion and protection investment the kingdom of norway, op.cit., 15. 69 model text for the indian bilateral investment treaty, https://dea.gov.in/sites/default/files/modelbit_annex_0.pdf https://www.regjeringen.no/contentassets/e47326b61f424d4c9c3d470896492623/draft-model-agreement-english.pdf https://www.regjeringen.no/contentassets/e47326b61f424d4c9c3d470896492623/draft-model-agreement-english.pdf https://dea.gov.in/sites/default/files/modelbit_annex_0.pdf protection for the rights and interests of local communities adversely affected by multinational energy companies’ activities putu purwaningsih 14 corruption is not only caused by investors but also by corrupt state behaviour. therefore, emphasizing the obligation to fight corruption in the country itself is not enough. the domestic law of the host state must also firmly implement this provision because the corrupt act could not be stopped if supply and demand sides exist. 2.4. voluntary approach: corporate social responsibility in addition to the protections provided in both the binding and non binding agreements and instruments above, mncs are also governed by other obligations concerning the environment, social issues, and human rights through a voluntary approach mechanism. this method arises from the desire of consumers and others to ensure the mncs regulate themselves on human rights and environmental issues. this voluntary approach mechanism, known as corporate social responsibility (csr), places a responsibility on a company to its shareholders and all people and communities directly or indirectly affected by the company's operational activities.70 csr is described as a voluntary concept in which businesses contribute to improving the existence of the society and environment.71 the obligation to promote and respect human rights, as they are regulated in the international and national law, is even more emphasized in the un norm on the responsibilities of transnational corporations.72 oecd guidelines define the establishment of a national contact point (ncp) to ensure that the provisions of oecd guidelines are known and understood by the domestic business community.73 this ncp serves as a forum for discussion of all matters relating to the guidelines74 and is regarded as a crucial nonjudicial mechanism for the accountability of mncs' human rights abuses with regards to their business activities serves. 75 provisions regarding csr are also regulated by the ngo guidelines on csr and the corporate code of conduct. a corporate code of conduct is a policy statement regarding company ethical standards that is different from one industry to another or from one company to another.76 one example of a company's commitment is the shell 1997 revised business principles which stated that the company’s support for human rights is in line with its business and makes its position useful for the communities in which it operates. moreover, csr is also regulated by states’ domestic 70 ilias bantekas, “corporate social resposibility in international law,” boston university international law journal, 22 no. 2 (2004): 311. 71 ibid., 317. 72 ibid., 312. 73 oecd, op.cit., 3. 74 ole kristian fauchald, “international investment law in support of the right to development?,” leiden journal of international law 34, no. 1 (2021): 197. 75 kinnari bhatt and gamze erdem türkelli, op.cit., 423–424. 76 ilias bantekas, op.cit., 322. udayana journal of law and culture vol. 6 no. 1, january 2022 15 legislation that must be obeyed by the companies operating in such countries.77 the number of provisions governing csr shows that the concept of csr has become a concern and basis for global business ethics. human rights protection and environmental protection, as stipulated in numerous international treaty documents show that the interests of the local communities affected by mncs’ activities have been protected by international laws. moreover, the effectiveness of csr implementation should consider how such a program could contribute to the rights and interests of local communities. in terms of protecting human rights, csr should emphasize local communities that are affected by mnc operations either directly or indirectly, usually by paying attention to individual rights as well as making contributions such as establishing schools and health centers and providing scholarships and water supplies.78 however, cases of human rights violations and environmental damage by mncs are still frequently found. in nigeria, the limited mechanisms for resolving human rights cases through domestic law have resulted in the issue of human rights being taken up by civic organizations in both local and international areas.79 the issue of labor rights is also a concern in the implementation of csr by mncs. oecd guidelines and the international labour organization's declaration on fundamental principles and rights at work stipulate several provisions regarding labour standards that must be implemented, but these also often face several obstacles.80 for example, the labour freedom to assemble in organizations and participate in decision-making processes is often limited in authoritarian countries. in other cases, the domestic host state provisions regarding health and safety are often inconsistent wi th the provisions of the home state.81 apart from protecting human rights and labour rights, environmental protection is another important focus in csr because of mncs' activities, especially those of companies in the energy sector that explore natural resources, are likely causing environmental imbalances. unlike human rights and labour rights problems, the environmental problems caused by resource exploration can be minimized by using technology. however, the need for this technology may become an obstacle due to the provision limitations of the host state in regulating companies that operate with high technology, such as those in the oil and gas industries. therefore, provisions to control and regulate pollution and environmental impacts are often 77 ibid., 325. 78 ibid., 330. 79 olufemi o. amao, “corporate social responsibility, multinational corporations and the law in nigeria: controlling multinationals in host states,” journal of african law, 52 no. 1 (2008): 102. 80 ilias bantekas, op.cit., 332. 81 ibid. protection for the rights and interests of local communities adversely affected by multinational energy companies’ activities putu purwaningsih 16 inadequate because they lack of technical and institutional capacity among the host state governments.82 various provisions of international law have been set to govern the host states' and mnc's obligations to protect local communities. indonesia, in this regard, can be used as an example. indonesian law determines an obligation to companies having its business activities in the field of and/or related to natural resources to perform social and environmental responsi bility, which is budgeted and calculated as the cost of the company, to be implemented in appropriate and fair manner.83 however, in practice, these obligations are often not fully met, leaving the risk of human rights violations and environmental damage. most of the provisions are still in the form of soft law, and there are conflicts with state interests. on the one side, the state is the authority obliged to protect its people's rights and interests, while on the other side, it has the interest to attract investment. an easy and clear settlement mechanism is needed to deal with such violations if they occur. 2.5. redressing harm from energy activity international law provides several ways to redress harms caused by activities of mncs in the energy sector, such as through litigation and non litigation mechanisms. due to its potential to resolve human rights violations, issue judgments, and provide opportunities to obtain compensations as enforceable awards, litigation is one of the most important ways to pursue remedies through a judicial process.84 mncs are governed by the laws of both their home and host states, making legal cases against them valid in both jurisdictions.85 however, most victims are reluctant to bring cases to the domestic court of the host state because of its inadequacy to offer relief.86 in terms of bringing a case against mncs through the domestic court of the host state, the government might be part of the case. host states are often involved in mnc business operations, and it offers security to the firm’s ventures. in most practices, a host state official or corporation is also assigned to manage and supervise multi-national operations, and consequently, state entities tend to be participants in the abuse or damage that may occur.87 besides their lack of independence, domestic courts in host states are frequently challenged by a lack of 82 jedrzej g. frynas, “corporate social responsibility or government regulation? evidence on oil spill prevention,” ecology and society, 17 no. 4 (2012): 8. 83 article 74 (1) of the law of the republic of indonesia no. 40 of 2007 concerning limited liability company. 84 iman prihandono, op.cit., 89. 85 ibid., 90. 86 george s. akpan, “litigating problems that arise from natural resources exploitation in foreign courts: impediments to justice,” journal of energy & natural resources law, 20 no. 1 (2002): 55. 87 ibid., 56. udayana journal of law and culture vol. 6 no. 1, january 2022 17 substantive and procedural law in complicated cases or low administrative capacity causing the legal action in the local court to be ineffective.88 almost all mncs are incorporated in developed countries that have better justice systems and procedures than those in developing countries.89 however, to run the business in the host state, the domestic law in most host states requires the local resident or subsidiary company to develop the natural resource in their territory.90 the subsidiary, then, is the party that potentially files lawsuits because it is directly involved in the exploration.91 the parent company that is incorporated in the home state and possessing the whole subsidiary is not prima facie liable for its subsidiary’s illegal or violent behavior.92 in terms of bringing cases to the home state court, some parties who lose do not need to pay court fees to the winning party, so bringing the case to court is not risky.93 plaintiff can also use the defendant's evidence and information when suing case in the home state. in addition, the plaintiff may be given a significant amount of compensation 94 that indicates legal action in the home country is an effective avenue to seek to redress harm caused by mncs. 95 despite the advantages of bringing the case into an international forum, there are also concerns in accessing the courts. common adversity is when the plaintiff and the defendant in different jurisdictions cannot decide on the proper forum.96 european union (eu) courts that apply the brussels convention on jurisdiction and the enforcement of judgments in civil and commercial matters can be used as an example. the convention determines that “... persons domiciled in a contracting state shall, whatever their nationality, be sued in the courts of that state.” 97 article 5(5) of the convention also states that “as regards a dispute arising out of the operation of a branch, agency or another establishment, in the courts for the place in which the branch, agency or other establishment is situated”, providing possibilities to the plaintiff to go against a multinational parent company in the home state or seek redress in every eu member state. under eu law, however, courts can only hear lawsuits if the defendant corpor ation is licensed and headquartered in one of the eu member states.98 another barrier to taking a case to the transnational litigation process is the concept of lex loci d amni, which means that the law enforced by the court should be the country’s law where the impact occurs.99 88 michael anderson, op.cit., 409. 89 iman prihandono, op.cit., 90. 90 george s. akpan, op.cit., 56. 91 ibid. 92 ibid. 93 iman prihandono, op.cit., 90. 94 ibid. 95 michael anderson, op.cit., 409. 96 ibid.,411. 97 european economic community. brussel convention on jurisdiction and the enforcement of judgments in civil and commercial matters (1968), art. 2. 98 iman prihandono, op.cit, 94. 99 ibid. protection for the rights and interests of local communities adversely affected by multinational energy companies’ activities putu purwaningsih 18 suing mncs in the home state court is possible for human rights violation, where the most attractive forum is the us federal court under the alien tort claims act (atca).100 it allows aliens to file tort claims and civil suits over human rights violations by mncs in the us federal court.101 however, this has proven to be difficult for plaintiffs as having a case against mncs using atca is a complicated process due to different views on human rights violations by mncs. 102 for instance, the court in doe i v. unocal confirms that plaintiffs can bring a lawsuit against the company even though there is no state intervention, while in another case, kiobel v. royal dutch petroleum, the court ruled that atca cannot be used as a basis to sue a corporation.103 this example shows that the possibility to bring a lawsuit against a mnc under atca is not a simple procedure because the different views have been taken by judges, causing inconsistency in such issues. resolving cases of violations of the rights and interests of local communities against mncs through litigation can be done in various forums. the forums that are provided to solve the problems have different advantages and disadvantages. in the case of local communities that have been adversely affected by mncs' activities in the energy sector, the litigation procedures provided by international law do not seem to make it simple to bring the case to court, and the awards often do not satisfy both plaintiffs and defendants. 3. conclusion international law provides various provisions and instruments for protecting the rights of parties involved in international investment. the government of the host state is obliged to protect both investors and local communities who are affected by mncs' activities in their area. the development of international law also extends protection to the local community by determining the obligations of investors to participate in protecting and respecting human rights and interests through affirmations in international treaties, oecd guidelines, un bodies documents, and bilateral investment treaties (bits). with the existence of various obligations to parties involved in foreign investments, violations of the rights and interests of local communities could be prevented. in addition to determining mnc's obligations and provisions to protect the local communities, international law also provides various forums to seek solutions for the adverse impacts caused by mncs' activities. this settlement can be pursued through litigation in the host states and home states. thus, it can be concluded that international law has provided sufficient provisions to protect the local communities that are adversely 100 ibid., 90. 101 bahareh mostajelean, “foreign alternatives to the alien tort claims act: the success (or is it failure?) of bringing civil suits against multinational corporations that commit human rights violations”, the george washington international law review 40 no. 2 (2008): 497. 102 iman prihandono, op.cit., 91. 103 ibid. udayana journal of law and culture vol. 6 no. 1, january 2022 19 affected but providing a simple and clear process is necessary, in terms of the problems will be resolved through a litigation process. furthermore, to minimize the occurrence of these adverse impacts, international law needs to develop better mechanisms and provisions for prevention purposes so that violations of the rights and inte rests of local communities can be avoided. acknow ledgment this article is an advanced version of an essay made by the author during her study at the university of westminster-london, energy and environmental change – master of arts programme in 2021, on international energy and climate change law course (code: 7llaw019w). the author would like to express a great honor to ruth mackenzie who taught this course. the argument and opinion contained in this article is an academic view of the author and do not necessarily link to author’s affiliation. bibliography book sornarajah, m. the international law on foreign investment. 4th ed. cambridge: cambridge university press, 2017. https://doi.org/10.1017/9781316459959 subedi, surya p. international investment law: reconciling policy and principle. london: hart publishing, 2020. 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access article, distributed under the terms of the creative commons attribution licence (http://creativecommons.org/licenses/by/4.0/), 96 reflecting on kejawen: javanese esoteric teachings in indonesian national development muhammad adiz wasisto* international social studies, erasmus university, the hague, the netherlands. abstract kejawen as a concept of spirituality arose out of ancient javanese society. many western scholars have used the term ‘javanese mysticism’ to refer to kejawen teachings, which focus on inward rather than outward religious expression and feeling. kejawen teaching offers an esoteric understanding of religion and spirituality, one that seems to circulate mainly outside formal religious traditions. this paper demonstrates the significance of kejawen teaching in spiritual, psychological, and social development in indonesia, suggesting it has especial relevance to issues of peace and violence. placing kejawen in its context, this study shows that the national development in indonesia after independence was influenced by the esoteric ideas of kejawen, as portrayed in the national motto “unity in diversity”. this expression resembles the post-independence state ideology of pancasila. through analysis of key nationalist texts, themes linked to elements of kejawen teachings are identified and analysed in this study. this is done by analysing key texts, including soekarno’s independence speech, pancasila, and other relevant materials from various available sources. the reader will find out more about the need for comprehensive symbolic and resource-based recognition of kejawen teachings in indonesian society. keywords: kejawen; religions; esoteric teachings; spirituality; pancasila. 1. introduction 1.1. background in this study, kejawen is looked at as a set of spiritual practices and beliefs that arose out of ancient javanese society. many western scholars have used the term ‘javanese mysticism’ to refer to kejawen teachings, which focus on inward rather than outward religious expression and feeling.1 kejawen teaching offers an esoteric understanding of religion and spirituality, one that seems to circulate mainly outside formal religi ous traditions. other great esoteric traditions, like sufism, christian spirituality, and jewish kabbalah share many similar ideas to kejawen teachings and require deep attention from practitioners to the essence of religion itself, represented as a state of unity or oneness with god and the universe.2 all outward rituals and liturgies are viewed as only preliminary preparations, their form being secondary to their function as a means towards attaining the true spiritual path of wholeness. rituals and be liefs, according to kejawen principles, should not be regarded as the fundamental precursor to action but as broad principles or forms of guidance that help to * email/corresponding author: ahmedadiz44@gmail.com 1 agus salim, “javanese religion, islam or syncretism: comparing woodward’s islam in java and beatty’s varieties of javanese religi on,” indonesian journal of islam and muslim societies 3, no. 2 (2013): 223. 2 damar shashangka. induk ilmu kejawen wirid hidayat jati (jakarta: dolphin, 2014), 84. mailto:ahmedadiz44@gmail.com reflecting on kejawen: javanese esoteric teachings in indonesian national development muhammad adiz wasisto 97 come in touch with and observe god’s existence through ongoing psychological struggle.3 kejawen teaching does not deal with the debate of how to worship; instead, it discusses the similarity of the fundamental principles of all religions. in its teaching, kejawen encourages self-observation of the mind, which allows one to study the inward psychological problems of human thinking and feeling.4 kejawen followers believe that meditative silence and focusing the mind can bring stability to one’s psyche, and that in turn a stable psyche or mind will be far removed from thoughts of violence.5 this is because they view violence as the result of division caused by the ego. there are strong echoes in this also, of the meditative practices of buddhism. the understanding and practice of kejawen differ according to the person, group, and cultural setting. some of the practitioners incorporate the teaching of hinduism into kejawen believe, some synthesize the teaching of buddha into their corpus and others may insert islamic elements into it. for instance, kejawen practitioner who lives in yogyakarta would likely use islamic terminology to explain kejawen teaching. it is because the religious lexicon in yogyakarta has been pervaded by islamic terminology, resulted from islamic kingdoms which were flourished in the last 14th century. on the other hand, people of osing in banyuwangi would not use the same terminology as people in yogyakarta just because there is not much islamic influence in their belie f as people in yogyakarta has, rather they do have strong hindu background. the nexus of kejawen teaching is impossible to delineate. it is because every complexities and nuances are the outsets of centuries of relationship and interaction between theologies, cultures, and idiosyncrasies. even now, the construction of kejawen is still ongoing, responding to the contemporary situation in the social.6 indonesia as a highly religious society often employs religious and spiritual concepts to justify its human rights perspective. 7 in addition, human rights debates at the international or national level, are often limited to the discussion of human rights as a legal instrument without looking at the religious concepts of humans as beings with innate rights derived from their spirituality and connection with god. 8 in a country with a fervent religious climate like indonesia, human rights discussions are supposed to be discussed using the ‘indigenous language’, which is supposed to match and also help to communicate the multi-dimensional morality of the indonesian people.9 this study will show that after independence national 3 ibid. 4 ibid. 5 ibid. 6 dahlia lubis, “religious education for aliran kebatinan community in contemporary indonesia.” journal of social studies education research 10, no. 2 (2019): 276. 7 gerrie ter haar. religion and development, what's in two names: symposium on the 10th anniversary of the chair of religion and development (the hague: international institute of social studies, 2009), 5. 8 ibid. 9 ter haar, op.cit., 10. udayana journal of law and culture vol. 5 no. 2, jul y 2021 98 development in indonesia was deeply embedded in the esoteric ideas of kejawen, as portrayed in the motto “unity in diversity”. this expression resembles the new state ideology of pancasila. as an instrument for national development, a single pan-national language, bahasa indonesia, was created and taught in schools as the official language, which made cross community and inter-regional communication possible as stipulated in law no. 24 of 2009. 10 along with this, a form of enshrined cultural wisdom, involving the coexistence of major religious communities and beliefs, within the nation adopted these kinds of plural-ist and inclusive forms of ideology, expressed in pancasila, and arguably rooted in kejawen. 1.2. purpose this research paper discusses the significance of kejawen teaching as both spiritual concept and method in modern indonesian society. the recognition of indigenous faiths has been rather slow since independence. in 2016 the constitutional court of the republic of indonesia, in a judicial review case no. 97/puu-xiv/2016, granted a lawsuit by indigenous communities. the court verdict states that indigenous people can use their indigenous religious identity in civil registration, for example , on the indonesian civil identity card, the kartu tanda penduduk (ktp). 11 subsequently, only six major religions in indonesia are recognized administratively by the government. with the ruling of the constitutional court on that case, indigenous people can enjoy their religious rights in a civil manner like in a marriage ceremony. however, this administrative recognition is inadequate for kejawen teaching and other indigenous faiths. indonesian government understands indigenous faith only as an identity, not as a knowledge whose survival is dependent on the distribution of resources which is through the dissemination of knowledge. thus, symbolic recognition is less important than comprehensive recognition. historically, kejawen is not classified as “religion” (agama) rather it falls under the term “believe” (kepercayaan). the dichotomy of religion and belief has been a debatable issue since article 29 of the 1945 constitution of the republic of indonesia (hereinafter, indonesian constitution) included those two phrases. following the legal uncertainties which are arousing from a rather obscure choice of epithet, discriminations are taking place which is omitting kejawen adherence and other indigenous believers from the indonesian religious-legal framework. it is later exacerbated by the enactment of presidential decree no. 1/pnps/1965 presidential decree no. 1/pnps/1965 concerning the prevention of abuse and/or blasphemy of religion or famously known as anti-blasphemy law. in the minutes of the hearing (risalah sid ang), samsul maarif as an expert was expounding the nature of politics of religion in indonesia to the court. he argues that the discourse of religion and belie ve mentioned above has been employed by a 10 law no. 24 of 2009 concerning national flag, language, emblem, and anthem, art 2. 11 constitutional court of the republic of indonesia, no. 97/puu-xiv/2016, para 3.13.5. reflecting on kejawen: javanese esoteric teachings in indonesian national development muhammad adiz wasisto 99 religious majority group to gain political power over a religious minority group who is categorized as “penghayat kepercayaan” which is including kejawen. as a result, a state institution that has been shaped by this politics of religion will favor “agama” and gradually ostracizing “kepercayaan” from the indonesian social and political realm.12 the paradox is that kejawen teaching has historically been excluded from indonesian religious orthodoxy since the nation-state was proclaimed in 1945. the survival of a kejawen narrative is preserved by relatively few individuals and groups. therefore, it is uncertain whether kejawen narratives and esoteric traditions can continue to be reproduced in the future. kejawen teachings are disseminated only through a local, informal agency. today it is common people, like village elders, spiritual teachers, and independent practitioners who are the only remaining sources of kejawen teachings. 13 the teaching of kejawen knowledge of the esoteric rests in the closed and more or less exclusive relationship between individual teachers (the guru) and individual students (the murid). 14 the need for this relationship between teacher and student makes kejawen teaching circulate rather slowly, hardly reaching the masses. 1.3. method this research paper relies mostly on secondary data for analysis. although it is mainly literature -based research, this is supplemented by the use of visual and online materials, as well as a selected number of openended and semi-structural interviews. the author decided to employ semistructural interviews to bridge the gap between the author’s preconception regarding the proble m and the perspective of the source. the interviews were conducted flexibly, which means the question is not intended to be answered rigidly by the interviewees. the question is only meant to be as a terminus a quo, in which the interviewer can be flexible in addressing the issue.15 the author intervie wed two interviewees via zoom call. they are romo suryo, a kejawen teacher from paguyuban sambung rasa and mbah harjo, a spiritual guide and community healer. the interviews had been conducted in the span of 2 months from may 2020 until june 2020. the analysis is conducted in a dialogic manner that moves interchangeably between reviewing scholarly and other literature, data and information from interviews, and social media, alongside some experience based observations. although the selection of literature is subjective, its selection and interpretation have been guided by the need to address the main focus of the study, set by the research question and sub-questions. to ensure data saturation, the author has the refore tried to locate the most 12 ibid. 13 clifford geertz. the religion of java (chicago: university chicago press, 1976), 328. 14 ibid. 15 see williams adams, ”conducting semi structured interviews,” in handbook of practical program evaluation, ed. kathryn e. newcomer, harry p. hatry, joseph s. wholey (san fransisco: jossey-bass, 2015), 493. https://onlinelibrary.wiley.com/action/dosearch?contribauthorstored=newcomer%2c+kathryn+e https://onlinelibrary.wiley.com/action/dosearch?contribauthorstored=hatry%2c+harry+p https://onlinelibrary.wiley.com/action/dosearch?contribauthorstored=wholey%2c+joseph+s udayana journal of law and culture vol. 5 no. 2, jul y 2021 100 relevant available research and data in both english and bahasa, highlighting the relevance of content through text analysis, coding, and matching of keywords.16 1.4. theoretical framework this section provides a theoretical framework for the rest of the study. the moral dimensions of kejawen teachings and its philosophy are discussed and shown to have been a profound element influencing the construction of indonesia’s moral standards as a nation. since modernity and globalization often repress the moral identity of individual societies, it follows that indonesia has the right to determine its national perspectives on moral philosophy and human rights, based on its people’s religious, spiritual, and cultural values.17 at the same time, a level of openness to the universality of beliefs should also be encouraged as part of nationalism, since the global movement of ideas, particularly regarding moral philosophy, has become almost inevitable. like buddhism and many other ‘spiritual’ religious traditions, kejawen teaching stresses the ideals of psychological development and the freedom of human beings from fear and suffering. it concerns itself with the inner development of the human psyche,18 and in a sense aims to observe the problem of human suffering through working on the basis of emotions like fear, grief, and sadness, as well as with situations of loneliness and insecurity. kejawen teaching believes that human suffering is the outcome of separation, which means the separation of the self or the ego. when human beings operate through their ego, their actions become self -centered. a self-centered mindset is viewed as fertile ground for conflict and vice to be manifested.19 the importance of dealing with human suffering is because of the social problems that suffering is believed to lead to, including violence, conflict, greed, corruption, aggression, and the abuse of weaker others. ideally, therefore, kejawen teachings consider self-reflection as potentially a wider solution for moral and ethical problems in society, contributing in this way to a corresponding formulation of a more just and inclusive society. the teachings thus have goals of individual spiritual advancement, which in turn is taken to form the basis on which collective spiritual development can be constructed, at the level of society. therefore, kejawen teaching encourages individual spiritual development before collective spiritual development. 16 elizabeth archer, “qualitative data analysis: a primer on core approaches,” in online readings in research methods, ed. s. kramer, a. fynn, s. laher, & h. janse van vuuren (johannesburg: psychological society of south africa, 2018), 7. 17 ter haar, op.cit., 12. 18 shashangka, op.cit., 107. 19 sulkhan chakim, “dakwah islam dan spiritualitas kejawen,” komunika: jurnal dakwah dan komunikasi 1, no. 2 (2007): 258. reflecting on kejawen: javanese esoteric teachings in indonesian national development muhammad adiz wasisto 101 most writings on the kejawen teachings, emphasize the principle of the ‘unity of existence’ (manunggaling kawulo gusti) which is seen as the central tenet of kejawen teaching. 20 the principle of manunggaling kawulo gusti postulates the totality of world existence which connects the ontology of the natural world, with the notion of human thought and rationality, human imagination, and the existence of the soul. this principle of the oneness of all existence views human beings as micro-models of wider existence (jagat kecil) and the natural world as a macro-model of human existence (jagat besar).21 these models are a reflection of how everything is interconnected, and kejawen teaching intends to explain the patterns involved, and in this way show the connections between ‘everything’. this principle can be described through the story of the infamous javanese-kejawen sage, syekh siti jenar. in the story, syekh siti jenar received enlightenment in the form of unique knowledge that said he was a god or allah. he was charged with heresy by the islamic monarch at that time because he violated the first tenet of syariah (shariah, sharia) which is the act of shirk or recognizing another god besides the one true god. this story was recounted in folklore as the story of a prominent scholar who went mad, because he kept shouting “i am a god”, allegedly after receiving the mystical knowledge of oneness. he was deemed as a troublemaker because after challenging the religious tradition in that time as well as contesting the authority of religious leaders. besides, he was regarded as a revolutionary figure of true religious teaching.22 in the story, and perhaps in real life, he was decapitated for heresy and a miracle happened. his body disappeared a moment after his head fell off, and his splattered blood on the ground miraculously shaped the arabic word for allah, the name of god. this very folkloric story postulates that the teaching of the ‘unity of existence’ within the javanese community has a history of martyrdom, one that arises out of a mismatch – or misunderstanding between the insight of oneness, and the definition of correct conduct in the islamic religion, through the syariah. the story is also interesting, since, in many ways, this clash of understandings continues between kejawen and more formal versions of islam even today, as this study will discuss.23 furthermore, manunggaling kawulo gusti can be defined as total awareness of the oneness of perception, which means the actuality of one’s existence without denying the existence of the other. kejawen teaching recognizes the principle of manunggaling kawulo gusti as a state of consciousness that is developed by a set of rituals that symbolize the quality of realizing one’s existence. so, manunggaling kawulo gusti is not an achievement but a state of adjusting and balancing the gaze of perception towards being able to perceive the unity of existence. it is also analogous 20 ibid. 21 andi asmara, “dimensi alam kehidupan dan manunggaling kawula¬gusti dalam serat jatimurti,” atavisme 16, no. 2 (2013): 154. 22 achmad chodjim. syekh siti jenar makrifat dan makna kehidupan, (jakarta: serambi, 2007), 11. 23 ibid. udayana journal of law and culture vol. 5 no. 2, jul y 2021 102 with the concept of the perceiver is the perceived as well as the observer being observed.24 this principle of the unity of existence resonates with the concept coined by jiddu krishnamurti of ‘seeing what actually is’. krishnamurti sees truth as total awareness and distinct from the kind of thoughts and sensations that come from the conscious thinking process and the external senses. for instance, one sees trees and mountains which are there as a fact. furthermore, one says that trees and mountains are beautiful, or one wants to go hiking because trees and mountains are pretty. this is the product of conscious thinking processes and the external senses.25 krishnamurti argues that the state of total awareness requires silence from thinking processes and the senses, as a precursor of understanding ‘what actually is’, a notion similar to ‘the unity of existence’. on the other hand, manunggaling kawulo gusti also explains the totality of all existence without a sense of external separation, resulting from what psychiatry calls ‘the ego’. in this psychological or spiritual state of total awareness, the ego is also perceived so that it cannot function to separate the self, because the ego has been paralyzed by the gaze of inner awareness that has unveiled how this separation works. however, the death of ego does not mean the non-existence of ego; it means sovereignty over one’s own ego. one may slip back into egoistical thinking and action, but one can readjust and rebalance that act of ego with a sense of remembrance (eling) which is able to turn an egotistical state back towards a state of total awareness of the ‘unity of everything’.26 mannuggaling kawulo gusti, as a grand, holistic concept of unity, can be useful in explaining individual psychological and religious development. it can also be used as an alternative perspective for finding solutions for violence, injustices, and conflicts in society. in the republic, as plato explains, justice is tied to a ‘quality of the soul’, and plato places considerable emphasis on the importance of the individual’s internal psychic state, as well as their actions and an individual’s conduct in striving for just outcomes. plato argues that there are internal and external aspects to justice. he explains that external acts of injustice will eventually disturb the internal balance of the soul, upsetting the modality of one’s own happiness. furthermore, according to klosko, plato also explains the characteri stics of the just and unjust soul as the metaphysical foundation of his entire political theory.27 on the other hand, manunggaling kawulo gusti differs from plato’s notions of justice and injustice, since it explains the relationship between the harmony of the soul or the psyche and acts of injustice the other way around. whereas in plato’s republic, he focuses on how an act of injustice 24 asmara, loc.cit. 25 j krishnamurti – official channel, “the art of listening, seeing and learning,” https://www.youtube.com/watch?v=ke32z2kks6w. 26 ibid. 27 george klosko, “plato’s political philosophy,” the routledge companion to social and political philosophy, (new york: routledge, 2012), 8. https://www.youtube.com/watch?v=ke32z2kks6w reflecting on kejawen: javanese esoteric teachings in indonesian national development muhammad adiz wasisto 103 or justice shapes the psyche or soul, he does not suggest the psyche or soul is shaping the external acts, reversing the relationship between consciousness and deeds.28 whereas plato postulates that the quality of one’s soul will be reflected in the form of external deeds, his concern is from the perspective of external consequences of internal states, rather than from the perspective of the cause of internal states themselves. in contrast, the concept of manunggaling kawulo gusti, especially in its mechanisms and methodology in teachings reflects an understanding that a just soul is the product of a perpetual inner struggle , involving perpetual efforts to realise the unity of existence. therefore, a person behaves justly because he or she has managed to settle their inner conflicts and master the ego. to put this simply, both concepts emphasize the importance of the quality of the human soul. the kejawen principle of manunggaling kawulo gusti starts with teachings about gaining first-person insights and perspectives into how to be a just soul through internal struggle and religious exercise. plato’s concept provides a second-person perspective for knowing or judging those who may be ‘possessed’ of a just soul; the focus is not on inner reflection, from the outside inwards, but on detecting the inner state of mind from external actions. interestingly, plato’s elaboration of the concept of the quality of the soul is implied in anthropological approaches to knowledge, which tend to look at external empirical reality to deduce inner values, cultural ideas, beliefs, and psychological states of peoples. plato especially analyses the characteristic of just and unjust souls through their religious attitudes. the attitudes of a just soul become embodied in the set of ritual values, which in turn determine how one recognizes that character as reflecting a just, or an unjust, soul.29 on the other hand, manunggaling kawulo gusti presupposes a spiritual mode of being that can produce a character that has the quality of a just soul without the influence of external human agency. instead, a just soul arises through the agency of the individual mind on itself, through the exercise of awareness and self-rule. the use of metaphysical reflection to address social problems is not a popular approach to development in modern times, although the commonly used expression in social movement circles ‘be the change you want to see in the world’, which is attributed to gandhi, does reflect something of that quality. also, in the thinking of thomas aquinas the same significance of theology in the construction of social and political philosophy, can be seen. this suggests that it is widely considered plausible to connect religious assumption with the social and political behaviour of people in society, including in a society heavily influenced by religious and spiritual value s like indonesia. the concept of manunggaling kawulo gusti could, in theory, be an effective tool of esoteric spiritual learning, to shape personal social , and political behaviour in the direction of greater tolerance, democracy and peace. in his famous summa theologiae, influenced by neo-platonism in his 28 ibid. 29 klosko, op.cit., 6. udayana journal of law and culture vol. 5 no. 2, jul y 2021 104 view of the hierarchal cosmology of human beings, aquinas combines the christian cosmological view with a neo-platonic cosmological view. 30 in summa theologiae, aquinas cites the story of dionysus going into the underworld. he suggests the idea parallels that of human beings’ journey from the lower worlds of desires into the higher existence of the gods. in fact, the concept of manunggaling kawulo gusti is the product of theological acculturation between islam and indigenous javanese spirituality. in summa theologiae, aquinas also syncretizes two sets of beliefs the christian and the neo-platonic understandings of the relations between physical reality and the realm of the spiritual, beyond physical reality. 31 also, in manunggaling kawulo gusti, there is an elaboration of the concept of tawhid (oneness of god) also found in islamic theology. aquinas was trying to harmonize philosophical and theological thinking in an environment where greek literature and art were prominent, and christianity was the chief religion which is similar to the construction of kejawen. 2. result and analysis 2.1. an esoteric perspective on national unity 2.1.1. introduction this section discusses the position of kejawen as an esoteric form of belief, within the national ideology of pancasila, which as explained in an earlier chapter was the basis for the ideology of nationalism in indonesia. this chapter uncovers how pancasila has connected philosophy and religion into the indonesian national framework in a way that i s analogous to the nature of esotericism. in addition, pancasila carries the doctrine of “secret of state” or arcana imperii which is placing the philosophy of pancasila as a foundation where all the national political project refers to.32 every nation inspires its collective political struggle not only through material ends as well as through spiritual ends. the latter proves to be effective because it plays with human impulsive emotion. using spiritual ends for national political struggle is best portrayed when soekarno instills the idea of the unity of existence (manunggaling kawulo gusti) into pancasila and the indonesian national motto (bhinneka tunggal ika) which means unity in diversity, responding to the multi-religious and cultural outlook of indonesia. 2.1.2. background and context of pancasila pancasila was established as a political consensus of the republic of indonesia which reflects the aspirations of the indonesian people. as a political consensus, pancasila also accommodates the metaphysical and 30 paul sigmund, “aquinas,” the routledge companion to social and political philosophy routledge, (new york: routledge, 2012), 2. 31 ibid. 32 miguel vatter, “esoteric writing between mysticism and science,” perspectives on political science, routledge, 44, no. 3 (2015): 183. reflecting on kejawen: javanese esoteric teachings in indonesian national development muhammad adiz wasisto 105 spiritual views of the people. the problem of the existence of humankind, the world, and the god is enshrined within the virtue of pancasila.33 thus, pancasila could be approached from the metaphysical and spiritual point of view, through the principle of genetivus objectivus which is placed pancasila as a philosophical object that derives its values from religious and spiritual traditions that embraced by the people.34 also, in indonesia’s legal tradition, pancasila is recognized as groundnorm or fundamental norm which presupposes legal norms that we find in the law and regulation. pancasila can be regarded as the philosophical basis of the indonesian constitution.35 interestingly, soekarno postulates that the first principle (clause, precept) of pancasila which is belief in one god derives from indigenous value. the question is, could the philosophical basis of the first principle of pancasila adopts kejawen view on unity of existence? based on the discussion with romo suryo, he believes that soekarno is a fervent follower of kejawen and understands the notion of manunggaling kawulo gusti or unity of existence. romo suryo argues that soekarno always acknowledge s various philosophical traditions of indonesian people. in addition, mbah harjo stated that the first principle of pancasila represents kejawen’s view on god or the ultimate truth and believe s that the founding fathers of indonesia, including soekarno, are aware of the notion.36 soekarno tends to syncretize different world view in the name of national unity. it was proven when he coined the term of nasakom which is translated as nationalism, religion, and communism. this concept was intended to ease the political contestation in that time when nationalists, religious people, and communists are contesting in politics. the connection of pancasila as political consensus that carries the doctrine of arcana imperii and esoteric teaching of kejawen is best de scribed by the argument of arthur melzer: “esotericism in philosophy seems to be the analogon of the arcana imperii in politics, as it is the analogon of the mysteries in most religions: in all these cases, the secret is, in reality, the basis of the claims to rule and to authority on the part of the few (philosophers, statesmen, priests) over the many.”37 moreover, pancasila has a significant metaphysical component that deals with form or ideal which implies its perpetual function to formulate an ideal future and actuality which implies the existence of truth. the actuality of pancasila refers to the actuality of god which is deemed to be the highest form of reality. thus, individuals or groups can utilize pancasila to reflect on current reality and its problems, hence, one can formulate a form or ideal in order to achieve the actuality, in this case , is the actuality of god which is 33 suhartoyo harjosatoto, "refleksi metafisik atas pancasila." jurnal filsafat 1, no. 1 (1996): 2. 34 ibid. 35 retno saraswati, “problematika hukum undang-undang no.12 tahun 2011 tentang pembentukan peraturan perundang-undangan.” jurnal yustisia 2, no. 3 (2013): 98. 36 eanisme tv, “mahasiswa s2 belanda bertanya serius pada mbah harjo.” https://www.youtube.com/watch?v=5vuxtebmoxm&ab_channel=eanismetv 37 vatter, op.cit., 183. https://www.youtube.com/watch?v=5vuxtebmoxm&ab_channel=eanismetv udayana journal of law and culture vol. 5 no. 2, jul y 2021 106 the highest form of reality.38 yet, the failure to understand the salience point about the nature of god or the highest form of reality doom the process in the wrong direction. thus, religious teaching plays a great deal of importance in understanding the proper religiosity, what means to be religious and what is the characteristic of a religious person. kejawen teaching could lend a great deal of lexicon to understand the notion of religious life. a predisposition of its syncretic and apolitical nature could elevate kejawen teaching above the problem of division and exclusiveness. 2.1.3. kejawen, state ideology and national development after indonesia seized independence in the year 1945, three national figures namely soekarno, mohammad yamin, and soepomo formulated a state ideology in the form of philosophical principles known as pancasila.39 the pancasila contains five principles which are (i) belief in one god, (ii) humanitarianism, (iii) national unity, (iv) consensual democra cy, and (v) social justice. those underlying principles are specifically enshrined in the fourth paragraph (alinea) of the preamble to the indonesian constitution. pancasila is considered the fundamental norm of the state, which means the policies and practices of the state (the government) should adopt and refer to the principles contained in pancasila. even though pancasila is considered a national ideology, the formulation of its principles cannot be separated from the cultural setting in which it was formulated. that means the national spirits contained in pancasila which is presumably adopted by all indonesians are derived from their own cultural and religious perspective. the goal of pancasila was explicitly to bring together and compile all cultural perspectives from numerous ethnic groups in the country and label them as national culture or kebudayaan nasional.40 in the realm of philosophical inquiry, sukamto notonagoro finds that pancasila is underpinned by three principles: the cultural principle, the religious principle, and the state principle. these principles correspond to the formulation of pancasila and the conceptual basis of its various principles/clauses. for instance, the cultural principle of musyawarah or (discussion, deliberation) is enshrined in the fourth principle of pancasila and later became the model for the legislative system in indonesia. historically, musyawarah is a concept that arises from the tendency of indonesian society to settle conflicts publicly. in addition, islamic scholars, like nurcholis madjid, have postulated that pancasila has been “the meeting point” of all the worldviews of the indonesian people, including between the religious views of the people.41 pancasila is considered to be designed to accommodate the spiritual nature of religious views to fit into the public 38 harjosatoto, op.cit., 7. 39 ali mudhofir, “pancasila sebagai sistem kefilsafatan,” jurnal filsafat 1, no. 1 (1996): 10. 40 m sastrapratedja, “filsafat pancasila dalam kehidupan bangsa,” jurnal filsafat 26, (1996): 24. 41 syarif hidayatullah, “notonagoro dan religiusitas pancasila,” jurnal filsafat, 16, no. 1 (2006): 38. reflecting on kejawen: javanese esoteric teachings in indonesian national development muhammad adiz wasisto 107 realm. the aim was that the spiritual nature of religion, especially the common unity concerning the desirability of peace, would contribute to the formulation of social conditioning to form the nation as a whole. as sukamto notonagoro suggests, the spiritual dimension of pancasila would especially apply to political life. in his rather abstract understanding of the spirituality of pancasila, notonagoro was trying to expound the view that political life in indonesia should be exercised in accordance with human needs. these include cultural and religious needs, involving strong cultural and religious attachments that are important for developing an individual identity.42 however, the implementation of pancasila throughout indonesia’s development has been deemed unsatisfactory. during the years from 1967 to 1985, soeharto ordered the operationalization of pancasila in terms of policies and practices. 43 one instance of unsatisfactory changes in reiterating the principles of pancasila was when president soeharto used pancasila to legitimize his authoritarian rule and to silence his political opposition. the soeharto administration then becomes the sole interpreter of whether or not a political action is considered in accordance with pancasila principles. by 1985, soeharto set up an indoctrination program around pancasila democracy and its implementation. this program is mandatory for junior and senior high schools through a course called pancasila moral education (pendidikan moral pancasila/pmp).44 soeharto’s effort to make pancasila into the sole guiding philosophy of postindependence social and political practices was filled with controversy, however, and especially regarding the position of religion and politic al opposition.45 the issue of multiculturalism, or cultural pluralism, has to be taken seriously because the movement of ideas leads to a reconstruction of ideas. in fact, the right to develop one own culture and be free from persecution is indispensable according to the international covenant on economic, social, and cultural rights. together with its twin sister, international covenant on civil and political rights, the rights of an individual in a liberal democratic system are secured, 46 it is also the be ginning of the age of secular nationalism. however, modern indonesia suffers from confusion around how to reconstructs and reformulate ideas of public, private , and national morality. indonesia’s religious beliefs emerged from the various moral and spiritual traditions of the world.47 ironically, for a society as religious as indonesia, the anti-colonial mindset that challenged western traditions also introduced the idea of the nation-state, as the basis of indonesian 42 hidayatullah, loc.cit. 43 donald weatherbee, “indonesia: the pancasila state,” southeast asian affairs, (1985): 133. 44 ibid. 45 ibid. 46 law no. 11 of 2005 concerning ratification of international covenant on economic, social, and cultural rights, art. 1 (1). 47 haar, op.cit., 10. udayana journal of law and culture vol. 5 no. 2, jul y 2021 108 constitutional and secular values.48 on the other hand, people in indonesia had strong religious and cultural values that would prove resistant to secular nationalism. in subtle ways, kejawen teachings have contributed to the formulation of ideal society through practice and custom. however, kejawen teachings cannot simply be equated with javanese culture. it is a misunderstanding to think that kejawen teaching belongs to javanese people. it might be interpreted that kejawen deals with human problems, especially, psychological problems. it advocates inner healing, how to de al with inner conflict so a person who practices kejawen would not manifest conflict in society.49 like other religions which originated from a particular geographical region. the problem with kejawen’s inclusivity is where it came from as many labeled religions and philosophies. it might seem strange to see western people adopt kejawen teachings, yet, it is quite normal to see javanese people adopt kejawen. however, many western figures like sigmund freud, carl jung, alan watts, and current popular spiritual guru eckhart tolle derived some part of their teachings from eastern spirituality. thus, by implication, kejawen is inclusive and can also be studied by all human beings regardless of their personal or national backgrounds. in addition, the context of kejawen teaching can be found in other religions but with different elaborations, reflecting its syncretic nature.50 2.1.4. interpretation of pancasila pancasila as a philosophical system and state ideology becomes the academic and political entry point to insert kejawen teaching into indonesian political and social consensus. 51 it is possible to reinterpret pancasila because its nature is dynamic and perpetual.52 pancasila is not a mere state ideology, but it is an ideology of process in achieving people 's freedom.53 thus, any modification or development is possible to be realized. from its creation, pancasila has been an ideology of the people which means its legitimacy depends on the sovereignty of the people.54 thus, people must involve in interpreting pancasila in order to achieve freedom and welfare which is also the foundation of democracy. the different perspectives of freedom and welfare as well as its implementation between nationalist and kejawen teaching are becoming debatable discourse. the discourses have not been mediated properly 48 yuwono sudarsono, “pokok-pokok pikiran penjabaran hak azasi berdasarkan pancasila,” jurnal filsafat 1, no. 1 (1992): 22. 49 chakim, op.cit., 262. 50 sulistiyono susilo and ibnu satyo, “common identity framework of cultural knowledge and practices of javanese islam,” indonesian journal of islam and muslim societies 6, no. 2 (2016): 162. 51 sudharmono, “pancasila sebagai ideologi terbuka,” jurnal filsafat 22, (1995): 1. 52 ngainun naim, “islam dan pancasila rekonstruksi pemikiran nurcholis madjid,” epistemé: jurnal pengembangan ilmu keislaman 10, no. 2 (2015): 452. 53 a.m.w pranarka, “epistemologi pancasila,” jurnal filsafat 26 (1996): 20. 54 sri soeprapto, “konsep muhammad hatta tentang implementasi pancasila dalam perspektif etika pancasila,” jurnal filsafat 23, no. 2 (2013): 107. reflecting on kejawen: javanese esoteric teachings in indonesian national development muhammad adiz wasisto 109 because the innate nature of the nation-state is forcing different beliefs and cultures to merge under the rule of the state. like all formerly colonized nations, indonesia does not have many options to bind its vast territory. a predisposition of a nation-state to merge different identities into one rule is problematic, it could also perceive as an illusion. because the failure to uphold justice caused by unequal relation whether it is social, political, and economic would be a threat to ruler legitimacy. whatever form of state and government one has, it does not really matter, because the real problem is always the failure to establish peace and justice which leads to division. the unaddressed division will inevitably bring instability as well as violence. modernity and the weltanschauung, or worldview, of neoliberalism, can be translated into the methodology of benchmarking national countryby-country achievements. a state deemed ‘successful’ or ‘developed’ is always so considered because of the accumulation of wealth, total production, advancement of technology, and so-called political stability and democracy. these kinds of the benchmark can obstruct recognition of the rights of minorities.55 however, national growth and international rank can become political tools to deceive people into believing that their country is on the right track and is making ‘great strides’ forward. politicians find that their legitimacy can depend on how their record in economic growth, employment, and material progress, is perceived. this encourages them to produce the desired economic and material results, rather than to focus on their own responsibility as state agents, to emancipate minorities and those who are disadvantaged from discrimination and suffering. this way of thinking serves different political purposes. it has also shifted a state that claimed to be grounded in morally good attributes, a state whose core principle was to protect the dignity of the pers on, into different trajectories. the first principle of pancasila has lost its meaning, as the notion of “believing in one god” as the principle says has been twisted away from its previous, inclusive meaning. for political convenience, the politics of religion has moved towards a strict monotheistic view of god, under the influence of ultra-conservative islamic thoughts. they believe that the first principle of pancasila is derived from the concept of tawhid or the oneness of god, which departs from all notions of diverse manifestations of god in other forms of religion. thus, pancasila is now deemed to be inspired solely with reference to the holy quran. 56 consequently, this gives the impression that islam has higher legitimacy than all other religions, in shaping the indonesian nation. the discussion about this principle is often limited to freedom of belief and worship, and usually becomes a topic of debate around the organized religions as established and authorized places of worship. hardly ever is the important notion of living religiously alongside various faith-based communities, discussed or elaborated on. unmanaged modernity has 55 sudjito, hendro muhaimin, and agung saras sri widodo, “pancasila and radicalism: pancasila enculturation strategies as radical movement preventions,” jurnal dinamika hukum 18, no. 1 (2018): 70. 56 ibid., 71. udayana journal of law and culture vol. 5 no. 2, jul y 2021 110 become a factor that is contributing to the devastation of national, cultural, and religious identities across different parts of indonesia. those identities are still needed to distinguish a nation from its colonial roots, albeit, in a holistic spiritual perspective like kejawen there is ultimately no such thing as different, mutually exclusive , or essentialized identities. in actuality, a nation needs those identities to contemplate whether their way of life is right or wrong according to the goals and the visions that they have established. colonial ways of thinking are still prevalent in indonesian society because of people’s dependency on foreign culture and religious values, whether secular or in the form of organized religion. indonesian people are not yet ready to embrace their own national identity fully, in part because the colonial mindset is perpetuated by the educational system, both the western-oriented elements and the more islamic teachings. students from elementary school to high school are merely trained to memorize pancasila which is relatively easy.57 however, the interpretation of pancasila, and how it became the key indonesian national ideology in the first place, and what lies behind it philosophically. the underlying principle stated in law no. 20 of 2003 concerning the national education system has explicitly mentioned that education should be based on pancasila and the indonesian constitution. it further explains that it is rooted in religious, “national” culture values, and also should be responding to the demands of modern times. however, the politics of religion hinders the recognition and distribution of resources of kejawen, especially in providing religious education for its followers. the law has stated that student has the rights to earn religious education according to his or her religion and belie fs. 58 but the government seems to neglect such implementation of rights. it is proven from the case of muslam hadiguna putra who is a kejawen practitioner that voluntarily teach the kejawen student in four elementary schools in cilacap, central java, without getting paid. 59 2.1.5. remarks pancasila reflects the attributes of unity of existence which are inclusive, dynamic, and perpetual. it postulates the struggle to unite regardless of the social and political differences in society. the founding fathers like soekarno, mohammad yamin, and soepomo foresees the multicultural reality of indonesian people that are naturally hostile to each other if there is no understanding of the common ground that presupposes the contesting values. esoteric view of kejawen teaching is actually influence the basis of pancasila which today is still become the chief concept to determine the next political project of indonesia. 57 mudhofir, op.cit., 11. 58 law no. 20 of 2003 concerning national education system, art 12. (1) (a). 59 kompas.com, “cerita para pengajar penghayat kepercayaan, mengajar tanpa bayaran: paling utama regenerasi,” https://regional.kompas.com/read/2020/06/21/05450051/cerita -para-pengajarpenghayat-kepercayaan-mengajar-tanpa-bayaran--paling?page=all. https://regional.kompas.com/read/2020/06/21/05450051/cerita-para-pengajar-penghayat-kepercayaan-mengajar-tanpa-bayaran--paling?page=all https://regional.kompas.com/read/2020/06/21/05450051/cerita-para-pengajar-penghayat-kepercayaan-mengajar-tanpa-bayaran--paling?page=all reflecting on kejawen: javanese esoteric teachings in indonesian national development muhammad adiz wasisto 111 2.2. reflecting on orthodoxy and heresy 2.2.1. introduction this section explains how the politics of heresy undermine the distribution of kejawen’s knowledge. the construction of heresy helps to understand the connection between belief systems and social organizations.60 in indonesia, kejawen discourse is intertwined with the islamic discourse, because many muslims claim that kejawen is an offshoot of islamic teaching. on the other hand, kejawen followers also claim that kejawen tenet resembles islamic tenet, for instance , the principle of tawhid (oneness of god) and the principle of manunggaling kawulo gusti (unity of existence). however, the emergence of a puritan type of islam, which is influenced by wahabis, salafi, and muslim brotherhood types of islam. these islamic groups reject the existence of kejawen esoteric teaching and insisting the purification of islamic practice in their organization as well as promulgating the dogma to the public. the moderates muslims like nahdlatul ulama and muhamad iyah are supposedly more open to the existence of kejawen teaching, even though in practice they also partially dismiss the radical element of kejawen. the extremist and moderates are fighting for dominance in the social and political, yet kejawen teaching’s existence is largely ignored and dismissed, branded as heresy.61 2.2.2 caught in ideological fight since joko widodo got elected as the president in 2014, re ligious politics has been reignited to serve the electoral ends. his consecutive victories have frightened the opposition and it was so monumental that the political parties which are supporting joko widodo have an immense political prospect. the situation exacerbates when his former vice governor basuki tjahaja purnama (ahok) took his former office as governor of jakarta. some jakartan muslims who were supporting prabowo subianto (the other presidential candidate) believe that ahok will not make policies i n favor of muslims, because of his background as chinese indonesian and christian. the situation culminates when ahok was charged with a blasphemy act after making a statement regarding holy quran.62 that major political event is the beginning of the massive polarization of islam and muslim societies in indonesia. this polarization undermines the existence of other religious ideas which relate to islamic tradition like kejawen and even shia islam. even though it is a political contestation, the parties involved inevitably must construct an ideological basis to justify the norm that they promote. the moderates which lead by an islamic 60 lester kurtz. “politics of heresy.” america journal of sociology 88, no. 6 (1983): 1087. 61 masdar hilmy, “towards a religiously hybrid identity? the changing face of javanese islam,” journal of indonesian islam 12, no. 1 (2018): 51. 62 bbc news, “jakarta governor ahok found guilty of blasphemy,” https://www.bbc.com/news/world-asia-39853280 https://www.bbc.com/news/world-asia-39853280 udayana journal of law and culture vol. 5 no. 2, jul y 2021 112 organization called nahdlatul ulama (nu) which is also a supporter of joko widodo administration coined the concept of islam nusantara. historically, the concept was not founded merely because of the aftermath of the 2014 political climate, it existed way long since nu was founded. basically, islam nusantara means a version of islam that accultures with local values in establishing its jurisprudence. it promotes a version of islam that friendly and amicable, which also acknowledge and respect other religion.63 however, this pluralistic view of islam does not merely accommodate all religious views which are distinct from the views of the religious organization, in this case , is nu. as the biggest islamic organization in indonesia, nu has the most political significance and contribution in shaping indonesian politics. thus, nu must retain its ideological and political boundaries toward a religious view that is too radical like the esoteric teaching of kejawen. if nu tries to embrace a radical view of kejawen like manunggaling kawulo gusti and the practice of shalat d aim, the public will certainly disagree, and nu will lose part of its legitimacy in public. it is because the kejawen tenets have been famous as heretical teaching and the public has been long aware of it. said aqil qiraj as head of nu says that nu will always be right in the center (moderate), nu cannot support the radical right, which is the wahhabis or the radical left, which is liberal muslims as well as the follower of kejawen, because their institutional tenet is sacrosanct.64 on the other hand, the wahhabis promote the concept of islam kaffah which is translated as ‘the true islam’. this concept only acknowledges the authority of the holy quran and hadith to establish a set of rituals and jurisprudence. it is different from the view of nu which is adding ijma or the consensus of islamic scholars and qiyas or the judgment of individual islamic scholars. the wahhabis argue that nu has been performing ritual innovation or bid’ah which is considered heresy. it excludes any religious practice which does not have a legal basis (dalil). those practices which do not have the dalil are bid’ah. the bid’ah discourse is being disseminated to the people in order to create a chasm between religion and culture. cultural practices that are already syncretise d with islamic rituals like veneration of saint’s tomb, funeral ceremony (tahililan), and celebrating prophet birthday (maulid an) are perceived as bid’ah and polytheistic which creates sentiment towards the majority of muslim population who are still practicing those kinds of ritual as well as kejawen practitioner who shares similar pattern of ritual.65 in the realm of knowledge production, the discourse between islam kaffah and islam nusantara breeds competing school s and educational institutions. nu is promoting islam that espouse s local culture, to tackle the 63 abdurrohman kasdi, “islamic dialectics and culture in establishing islam nusantara paradigm: variety model of islam nusantara for indonesia,” addin 12, no. 2 (2018): 301. 64 nu online, “kang said: nu tidak radikal, bukan pula liberal,” https://www.nu.or.id/post/read/27923/kang-said-nu-tidak-radikal-bukan-pula-liberal. 65 tarik firro, “the political context of early wahhabi discourse of takfir,” middle eastern studies 49, no. 5 (2013): 771. https://www.nu.or.id/post/read/27923/kang-said-nu-tidak-radikal-bukan-pula-liberal reflecting on kejawen: javanese esoteric teachings in indonesian national development muhammad adiz wasisto 113 rising neo-wahhabis, salafis, and muslim brotherhood school of thought that also building their madrasah to promote “the true islamic teaching” without interference from the local culture. the wahhabis school of thought calls for a “deculturized religion” approach as oliver roy mentioned. the term “deculturized religion” postulates to the abandonment of local culture as well as nationalist culture in exchange for modified islamic culture which has a strong reference to gulf arabic culture like saudi arabian.66 in relation to kejawen, both islamic schools of thought mentioned above are rejecting kejawen as an independent belief system. thus, they are not really concern about the survival and development of kejawen teaching. also, the dichotomy of religion (agama) and belief (kepercayaan) still plays its part in social life. this discourse is perpetuated by the existence of legal products which are not recognizing the existence of kejawen and other indigenous faith. in government regulation no 55 of 2007 concerning religious education, it is clearly stated that religious education is only provided for islam, catholicism, protestantism, buddhism, hinduism, and confucianism.67 three religious groups allegedly considered practicing bid’ah in the eyes of wahhabis. they are nu, islam abangan (a form of islam that mixed with a great deal of kejawen principles), and kejawen group itself. 68 however, kejawen group is not explicitly attacked by the wahhabis in their public argument. the wahhabis specifically attack nu because of their massive political and social power which is directly competing and opposing the bid’ah discourse. kejawen groups are in a dilemmatic position because of the political competition between nahdlatul ulama and wahhabis. the people who think that bid’ah is sinful practice would reject and distant themselves from the principle that they think is affiliated with bid’ah, thus the people would feel reluctant to learn about kejawen because it is against the popular view of wahhabis.69 the discourse of bid’ah has more political ove rtone than a social one because many agencies use a narrative of bid’ah for political purpose s. after the political reform and the fall of soeharto’s authoritarian regime, a huge number of new political parties were created. islamic political parties are also sprouting after more than three decades of being suppressed by soeharto’s iron will. the justice and prosperity party (partai keadilan sejahtera/pks) entered into the indonesian political arena by adopting the ideology of the muslim brotherhood which can be recognized by its fervent effort to promulgate the idea of khilafah or islamic state ruled by a single caliph. also, pks opposes the idea of merging islamic values with cultural practices. thus, it calls for “purification of islam” and it gains popul arity with that narrative. because the majority of muslims in indonesia come from different types of islamic ideological backgrounds, pks cannot deliberately push the agenda of khilafah and “purification of islam” to win 66 mark woodward et al., “getting culture: a new path for indonesia’s islamist justice and prosperity party?,” contemporary islam 7, no. 2 (2013): 173. 67 government regulation no. 55 of 2007 concerning religious education, art. 9(1). 68 hilmy, op.cit., 56. 69 firro, op.cit., 775. udayana journal of law and culture vol. 5 no. 2, jul y 2021 114 an election and secure seats in the house of representative s. nahdlatul ulama as the oldest traditional islamic organization and muhamadiyah as the oldest modern islamic organization have distinguished ideologies that would repel pks agenda if it is done coercively instead of persuasively.70 kejawen discourse is placed within the greater islamic discourse. even though kejawen also has hindu-buddhist roots, but because of total islamization in java since the 18th century and the partition of java and bali, the discourse progresses under islamic principle. damar shashangka in his book titled induk ilmu kejawen explicitly says that kejawen is a term for javanese-islamic spirituality. other combination like hinduismjavanese spirituality or buddhism-javanese spirituality falls under the different category which is jawadipa. in fact, not all kejawen practitioners agree about the proper use of the term coined by damar shashangka.71 most kejawen practitioners do not concern with the term rather they emphasize the principle and custom that defines kejawen. on the other hand, majority of indonesian recognizes and generalizes kejawen as part of islam because the majority of kejawen follower borrows islamic identity in their civil registration matter. the syncretisation process has gone too deep which makes kejawen dependent on islamic discourse. thus, the practice of political islam tremendously affects kejawen survival, even more, the bid’ah narrative has put kejawen far more detach from current islamic orthodoxy. 2.2.3. remarks the construction of heresy and orthodoxy between nu and the wahhabis are undermining the dissemination of kejawen teaching. not only branding kejawen teaching as heresy but also the endless debate on the discourse between islam nusantara and islam kaffah greatly captivate public attention. lack of historical understanding in indonesian religious dynamic and the tendency of neoliberal economics which serves the capitalist agenda of political parties in electoral contestation are the fundamental obstructions to recognize kejawen teaching as indonesian religious tradition. an egalitarian approach to the distribution of religious knowledge has to be realized to avoid dominance and monopoly. 3. conclusion currently, kejawen teachings seem to be facing the prospect of gradually being discarded through domination of islamic theology and secular values that leaves little room for syncretism of religious and cultural beliefs, in line with the ‘unity of existence’ principle associated with kejawen. the public prefers to have one final answer to t he questions of human existence, whilst not realizing that other religions may well share parallel, largely similar concepts, based on very similar notions. in this setting, a singular religious doctrine is not balanced by any strong 70 woodward et al., op.cit., 174. 71 shashangka, op.cit., 25. reflecting on kejawen: javanese esoteric teachings in indonesian national development muhammad adiz wasisto 115 counterpart in cultural or political philosophy that could lead to a syncretic solution such as is generally needed in plural environments. this may imply that indonesia may be becoming a less plural environment in practice. a philosophical discussion about the roots of the existence of indonesia should be encouraged in order to know what are the values that are functioning in the society. this knowledge about the roots of various moral traditions in indonesia ideally has to be understood by all people, not just the elites who can afford better education. thus, pre -college education has to be reformed to be more critical in its approach, especially in the moral and religious subjects. in addition, academic freedom should break the construction of heresy and orthodoxy. the transparency of the academic system is crucial for the equal reproduction of knowledge. minority knowledge and rights should be prioritized, considering their fragility in the economic competition. the inequality of resources in disseminating and proliferating minority knowledge is the fundamental problem. stigmatization caused by political and religious figures that trying to polarize the people into two separated groups are damaging the minority narrative, not to mention, it begets conflict and other social problems. the stigmatization continues the inequality of resources because stigmatization equals the moral construction of the public. in this case, kejawen teaching is stigmatized as heretical teaching that rejects or is not in accordance with islamic orthodoxy in indonesia. with the approach of critical thinking which postulate s academic freedom, kejawen teaching could retrieve its dignity back as a great spiritual tradition of indonesia. lastly, the struggle to unite people through spiritual tradition is not a new thing. however, the force that divide s us is seemingly more powerful because of the greed that has been endorsed by the capitalistic mindset. therefore, a humanistic perspective is required to deal with the great problem of our time. the human problem cannot be dealt only with economic incentives, other aspects like psychological, spiritual, social, and other human needs and inclination should be analyzed carefully and thoroughly to create a precise and holistic solution to a problem. acknowledgment and disclaimer this article is a refined and shortened version of the author’s master thesis which was completed in 2020 when the author studied at the international institute of social studies (iss), the hague, netherlands. the author would like to thank helen hintjens and shyamika jayasundara-smits as supervisor and second reader for the ir help and guidance. the author would like to express that any arguments and opinions contained in this paper are the author's idea and academic findings. it does not link whatsoever to the author’s affiliation. udayana journal of law and culture vol. 5 no. 2, jul y 2021 116 bibliography book adams, williams. ”conducting semi structured interviews,” in handbook of practical program evaluation, edited by kathryn e. newcomer, harry p. hatry, joseph s. wholey, 492-505. san fransisco: jossey-bass, 2015. https://doi.org/10.1002/9781119171386.ch19 archer, elizabeth. “qualitative data analysis: a primer on core approaches.” in 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https://www.nu.or.id/post/read/27923/kang-said-nu-tidak-radikal-bukan-pula-liberal e-issn 2549-0680 vol. 5 no. 1, january 2021, pp. 1-21 doi: https://doi.org/10.24843/ujlc.2021.v05.i01.p01 this is an open access article, distributed under the terms of the creative commons attribution licence (http://creativecommons.org/licenses/by/4.0/), 1 hindu legal philosophy in ngelinggihang dewa hyang tradition: a case study in jero kuta customary village dewa ketut wisnawa* faculty of dharma duta, i gusti bagus sugriwa state hindu university, bali – indonesia abstract this article discusses ngelinggihang dewa hyang ceremony in gianyar regency which is different from the traditions in other regions in bali. this tradition originates from hindu law but is implemented differently by each customary village. this study aims to assess the position of hindu law in indonesian legislation, discuss hindu law as the basis for implementing ngelinggihang dewa hyang ceremony, identify the autonomy of customary village in ngelinggihang dewa hyang process, and reveal the public perceptions of this ceremony in jero kuta customary village, batubulan village, sukawati district, gianyar regency. this paper is a socio-religious research that is combined with a legal research. the research suggested that hindu law does not have an explicit position in national law, but is used as the guideline for balinese customary law. sources of hindu law used in this ceremony are lontar purwa bhumi kamulan and manawa dharmasastra that have been derivated into customary law. the autonomy of the customary village in the process of ngelinggihang dewa hyang can be seen from the dresta (customary law) adopted by the villagers of jero kuta customary village who carry out this procession on a different day from other rituals. the public perception of this ceremony can be seen from the interaction in family and community scope. it has been revealed that the society does not fully understand the meaning of this religious procession due to the following factors; differences in community understanding of the existence of the ngelinggihang dewa hyang ceremony; ignorance of the community, education level, and the development of globalization in people's life. keywords: hindu law; ceremony; customary village; autonomy; bali. 1. introduction 1.1. background indonesia is a very pluralistic country from all aspects (ethnicity, race, group, and religion). after the political reform, the state and law paradigm have shifted from centralization into decentralization as reflected in the amendment to the 1945 constitution of the republic of indonesia (hereinafter, indonesian constitution) regarding the recognition of customary communities along with their traditional rights.1 the ** email/corresponding author: wisnawadewa94@uhnsugriwa.ac.id / dewaketutwisnawa88@gmail.com 1 syamsudin,"beban masyarakat adat menghadapi hukum negara." jurnal hukum ius quia iustum 15, no.3 (2008): 338-35). recognition of indigenous people has existed since the independence of the republic of indonesia. see also luh putu yeyen karista putri, and eric gordon withnall, “protecting the village credit institution: should traditional https://doi.org/10.24843/ujlc.2021.v05.i01.p01 http://creativecommons.org/licenses/by/4.0/ mailto:wisnawadewa94@uhnsugriwa.ac.id mailto:dewaketutwisnawa88@gmail.com the hindu legal philosophy in ngelinggihang dewa hyang tradition: a case study in jero kuta customary village dewa ketut wisnawa 2 constitution awards them certain constitutional rights including rights to own territory, autonomous governmental system, people, and legal system.2 article 18b of the indonesian constitution provides a juridical construction regarding the unitary community of customary community.3 bali is a province in indonesia that has a unique governmental system. bali as one of the provinces in the unitary state of the republic of indonesia is subject to national law, namely a written law made by a legitimate state body.4 besides the existence of village (desa) in bali that has a similar structure with other villages in other regions in indonesia, bali there has also been existed what so-called desa adat (customary village) in bali for centuries. the legitimacy of customary villages in bali is regulated in the bali provincial regulation no. 4 of 2019 concerning customary villages in bali. this regulation defines desa adat (customary village) as follows: “a customary law community unit in bali that has territory, position, original arrangement, traditional rights, own assets, traditions, social life rules for generations, inherited in the bond of a holy place in this case kahyangan tiga or kahyangan desa (three main temples situated in village), duties and authority and the rights to regulate and manage their own households.5 this customary village is entitled to create an autonomous regulation that primarily aims to advance customs, traditions, arts and culture, and local wisdom of the customary villagers in sakala (real life) and niskala (noetic/spiritual life) as well as realizing krama desa adat (customary villagers) who can maintain social unity as part of national security in accordance with the philosophy of tri hita karana (three causes to prosperity).6 to value this philosophy, the customary people carry out various religious ceremonies to purify the soul, people, and the universe. the principle of tri hita karana is considered capable of building harmony and balance between the worship of god, human relationships with each other, and the environment.7 one of hinduism teachings is regarding how the ceremony should be properly conducted for a dead person. a hindu text lontar siwa tattwa communities adopt modern financial management practices?,” udayana journal of law and culture 2, no. 2 (2018): 122. 2 hanna christine ndun, sarah suttor, and i gusti agung ayu dike widhiyaastuti, “does customary law discriminate balinese women’s inheritance rights?,” udayana journal of law and culture 2, no.1 (2018): 98. 3 lalu sabardi, "konstruksi makna yuridis masyarakat hukum adat dalam pasal 18b uudn ri tahun 1945 untuk identifikasi adanya masyarakat hukum adat," jurnal hukum & pembangunan 44, no. 2 (2014): 170-196. 4 i nengah lestawi and dewi bunga, "the role of customary law in the forest preservation in bali," journal of landscape ecology 13, no.1 (2020): 25-41. 5 bali provincial regulation no.4 of 2019 concerning customary villages in bali, art. 1(8) 6 ibid., art. 3(1) 7 widyantara, et al., “environment dispute resolution through awig-awig (customary law),” jl pol'y & globalization 70 (2018): 75. udayana journal of law and culture vol. 5 no. 1, january 2021 3 purana guides ngaben as a balinese cremation ceremony.8 there are several types of ngaben sacred rituals, from the main majestic ritual to simple versions of such.9 in ngaben procession, there is a ceremony called sawa wedana. the aim of sawa wedana10 is to restore the elements of the panca maha bhuta (the five elements found in the human body namely earth (soil), water, air, fire, and space)11 and purify the soul of a person who has passed away. practices show that the dead body of a hindu in bali are generally cremated or buried. according to hindu-bali, there are a series of rituals after cremation or burial. if the cremation or burial ceremony has been executed, then it will be continued with ngelinggihang dewa hyang or nyekah. hinduism in bali has a belief in dewa hyang or dewa pitara which is an ancestral spirit that has reached the realm in swah loka (the realm of the gods). to reach the stage of dewa pitara, there are several ceremonies carried out namely the ngaben ceremony and ngelinggihang dewa hyang. 12according to the holy book bhagawad gita iii.12, ngelinggihang dewa hyang ceremony is aimed to free the ancestors from the bonds of sin and karma. this ceremony is carried out by increasing the pitara13 to become an ancestor and symbolically placed in a merajan kemulan/sanggah kemulan14 (a private temple at home. it is commonly accepted that nyegara gunung ceremony (sacred journey or pilgrimage made from the sea to the mountain) is conducted before the ngelinggihang dewa hyang. most customary villages organize these two ceremonies on the same day. however, different ways are practiced in jero kuta customary village, batubulan village, sukawati district, gianyar regency. it is a customary village that consists of eight banjar (a small unit of community in bali) namely banjars pengembungan, tegaljaya, denjalan, batur, pagutan kaja, pagutan kelod, telabah, and pengambangan. in this customary village, nyegara gunung and ngelinggihang dewa hyang ceremonies are held on different days. the customary villagers consider that nyegara gunung ceremonies is still part of a series of atma wedana ceremonies that is classified as pitra 8 i. nyoman kiriana, “ngaben conception in lontar siwa tattwa purana,” vidyottama sanatana: international journal of hindu science and religious studies 1 no.2 (2017): 86. 9 aa ayu oka saraswati, and paul memmott, “the child misses its mother”-balinese place experience of the ngaben ritual event,” journal of basic and applied scientific research 4 no.5 (2014): 1. 10 sawa wedana is a cremation ceremony in bali involving an intact corpse. 11 i made gami sandi untara, “kosmologi hindu dalam bhagavadgītā," jñānasiddhânta: jurnal teologi hindu 1, no.1 (2019): 20. 12 term ngelinggihang dewa yang is generally called ngasti or nyekah. besides, this ceremony is also called as ngelinggihang dewa hyang ceremony is also called devapitrapindha, atmasiddhadevatà, or nuntun dewa hyang. see nararya narottama, “spiritual tourism: a case study of foreigners’ participation in the pitrayajna ceremony in the desa pakraman of muncan, selat, karangasem, bali,” e-journal of tourism 3, no.1. (2016): 35. 13 pitara means the spirits of the deceased. 14 merajan kemulan/sanggah kemulan means family based-holy place for the ancestors. the hindu legal philosophy in ngelinggihang dewa hyang tradition: a case study in jero kuta customary village dewa ketut wisnawa 4 yadnya (offering to the ancestors), while ngelinggihang dewa hyang is categorized as dewa yadnya (offering as an expression of gratitude to god).15 even though the lives of balinese peoples are similarly guided by hindu law, the customary village has the autonomy to determine how the ngelinggihang dewa hyang ceremony should be conducted, differ from other villages. basically, each customary village has its own authority to decide the type, means, and method of conducting a ceremony. simply, the same source of law, in this regards hindu law, does not mean that it must be implemented uniformly. in bali, this is called as dresta,16 which may differ from the custom and tradition practice in other customary villages. the practice indicates that hindu law may be dynamically interpreted by each entity, including the customary village, based on their common knowledge, belief, and agreement. jero kuta customary village has its own arrangements to determine the procedures and interpret the ngelinggihang dewa hyang ceremony. as an example, the villagers will choose the day to conduct ngelinggihang dewa hyang ceremony on the same day with piodalan17 in the merajan kemulan. before holding at merajan kemulan, his family made a temporary pelinggih (place of worship). 1.2. purpose the purpose of this research is aimed to analyze four issues. first of all, it assesses the position of hindu law in indonesian legislation and regulations. second, it discusses hindu law as the basis for implementing ngelinggihang dewa hyang. next, it investigates the autonomy of customary villages in the process of ngelinggihang dewa hyang. lastly, it reveals public perceptions of ngelinggihang dewa hyang ceremony in jero kuta customary village, batubulan village, sukawati district, gianyar regency. 1.3. method this research is a socio-religious research that is combined with a legal research. the socio-religious research is used to inquiry about the relevant hindu teachings and hindu law with regards to the topic discussed in this paper and to present an analysis of how hindus in bali implement them in their social and cultural life. the legal research is used to add the legal aspects related to the position of hindu law in indonesia, primarily in the region of bali, and the legality of the customary village in bali to create and adopt customary law that is inspired by hindu teachings. a socio-religious research was used in identifying the empirical conditions of the ngelinggihiang dewa hyang ceremony. socio-religious 15 i gusti ketut widana, “filosofi ritual hindu, pergeseran antara konsep dan konteks,” dharmasmrti: jurnal ilmu agama dan kebudayaan 10, no.2 (2019): 29. 16 dresta is a custom or tradition inherited from generation to generation and still adhered to by customary villages. bali provincial regulation no.4 of 2019 concerning customary villages in bali, art. 1. 17 piodalan can be explained as a ceremony related to the day of the establishment of the merajan kemulan udayana journal of law and culture vol. 5 no. 1, january 2021 5 research describes life narratives, rather than narratives consisting of texts, or translations, resulted in a real conditions in social reality in the community.18 an empirical study was conducted in the customary village of jero kuta, batubulan village, sukawati district, gianyar regency to collect qualitative data,19 through are observation, interview,20 and documentation. the qualitative research in general aims to develop concepts or develop an understanding of a phenomenon, in this case, the phenomenon of hindu religious rituals, specifically about the relevance of ngelinggihiang dewa hyang ceremony in the teachings of panca yadnya (five kinds of holy offerings) in jero kuta customary village. 1.4. literature review this research examines the implementation of customary village autonomy manifested in dresta as regulated in regulation of bali provincial regulation no.4 of 2019 concerning customary villages in bali in organizing ngelinggihiang dewa hyang ceremony in jero kuta customary village. structural functional theory viewing that society as a functional system is in equilibrium condition known as the integration approach or more popularly known as the structural-functional approach. structural-functional theory is analyzed by looking at society as a system of interactions between people and their various institutions and everything agreed by consensus including values and norms that emphasize harmony inconsistency and balance in the society. durkheim, malinowski, and radeliffe brown are very influential figures in structural-functional theory.21 starting from the speculation of durkheim in functional theory stating: (1) society must be seen as a unit that can be distinguished from its parts, but cannot be separated; (2) the parts of a system function to fulfill the interests of the system as a whole; (3) functional interests are used in the normal and pathological sense, thus a social system must meet its own needs to prevent abnormal conditions; (4) by looking at the system normally, pathologically, and functionally, there are certain topics or points in which these things can be achieved so that functionalization normally proceeds around that point.22 this theory is used as a provision for the implementation of hindu rituals, especially in ngelinggihang dewa hyang ceremony held by a system of social cooperation in which all components of society have the same responsibility in creating and realizing security, comfort, and peace as a result of the ritual implementation. 18 sumarto. "creative economic management of tangkit lama village sungai gelam sub-district muara jambi district." hunafa: jurnal studia islamika 15, no. 2 (2018): 323339. 19 see qualitative research methods in hamidi. metode penelitian kuantitatif. (malang: univaresitas muhammadiyah, 2004), 25. 20 interview is conducted with jero kuta bendesa (leader) of batubulan village, sukawati district, gianyar regency, 2018-2020. 21 koentjaraningrat. sejarah antropologi i. (jakarta: ui pres, 1990),15-25. 22 ibid. the hindu legal philosophy in ngelinggihang dewa hyang tradition: a case study in jero kuta customary village dewa ketut wisnawa 6 in the theory of religion, the oldest form of religion is based on a human belief in supernatural powers in extraordinary things and be the causes of the emergence of many phenomena that cannot be done by humans. the base of religion is an "emotion" or a "vibration of the soul" that arises because of human admiration for certain things and phenomena that are extraordinary, and which are above ordinary natural forces, namely supernatural or magical powers.23 all systems of beliefs and religions in this world are centered on a concept developed by various experts, the concept of religion is divided into five components that have their roles, but are related to one another. these five components are (1) religious emotions; (2) belief systems; (3) the system of rites and ceremonies; (4) ritual and ceremonial equipment; (5) religious people.24 the implementation of ngelinggihang dewa hyang ceremony, the main topic of this article, actually reflects these five components of religion. as generally experienced in mots religious activity, this ceremony tends to touch the feelings of balinese hindus, primarily the family and relatives of the pitara. they strongly believe that this ritual will give a sense of security, comfort, peace, and serenity to the life of sekala (real) and niskala (noetic). since the inception, the main motto of hinduism is to live in the harmony with other elements of nature.25 friedman divides the legal system into three aspects, namely legal substance, legal structure, and legal culture. in this research, legal culture theory will be primarily used. the legal culture of society is a human thought in an effort to regulate his life, which is known as a written, unwritten, and combinative legal culture of society.26 2. result and analysis 2.1. position of hindu law in indonesian legislation according to historical facts, hinduism is the first and oldest religion in the world that was born and developed in the sindhu river valley, india. hinduism has veda as the holy book and the main source of teaching for its people.27 hinduism was developed firstly in indonesia in about 4–5th century, which is proved by the existence of the oldest hinduism kingdom, kutai kertanegara, east borneo (kalimantan) that is signed by yupa epigraph.28 the vedic scriptures contain various aspects in the common 23 agus salim. teori paradigma penelitian sosial. (yogjakarta: tiara wacana, 2006), 57. 24 chris barker. cultural studies: teori dan praktek. (yogjakarta: bentang, 1999. pustaka), 15. 25 praveen goyal, “sustainability evidences from hindu philosophy,” evidence based management, 2 nd international conference on evidence based management (2017): 316. 26 abdul halim, barkatullah. "budaya hukum masyarakat dalam perspektif sistem hukum." jurnal uksw 1, no. 1 (2013): 8. 27 sinaulan, j. h. "akulturasi kebudayaan hindu di era multikulturalisme identitas." ideas: jurnal pendidikan, sosial, dan budaya 4, no.2 (2018): 215-224. 28 lindayani, lilik rita, et al. "the influence of hinduism toward the islamic practice of indigenous people in sulawesi." international journal of english literature and social sciences (ijels) 4 (2019). udayana journal of law and culture vol. 5 no. 1, january 2021 7 niches of human life ranging from religious aspects (relationship with god as the creator of everything that exists), economic, political, and social life aspects, especially hindu society and world society in general, this is due to the teachings of hinduism which is universal and flexible and open to every human being.29 not only that, the veda also studied children, namely regarding the position and various efforts to protect children as stated in several books of the vedas as the main source of teaching for hindus. 30hinduism is practiced by most of the population in bali. a total of 3,247,283 out of 3,890,757 residents of bali are hindus.31 rules derived from hindu scriptures are called hindu laws. the existence of hindu law in indonesia can be seen from the judicial system during the dutch colonial period. the court that once existed in the dutch era was known as the "rad kertha caranegara court" which was located at bale kambang mayura cakranegara. the rad kertha court settlle cases related to the hindu community regarding their problems which are resolved using their hindu law that is manifested in customary belief and practices. after indonesian independence, hindu courts could no longer be found in the judicial system. the national government eliminated the rad kertha, and was replaced by a state court.32 according to article 24 paragraph (2) of the indonesian constitution, judicial power is exercised by a supreme court and judicial bodies under it in the general court environment, religious court environment, military court environment, state administrative court environment, and by a constitutional court. the competence of the religious court as referred to in article 24 paragraph (2) of the indonesian constitution only applies to muslims and for certain object cases.33 recognition of the protection of religion is itself a basic right of citizens and is a legal obligation of the state. article 28e paragraph (1) of the indonesian constitution states that everyone has the right to embrace a religion and worship according to their religion, choose education and teaching, choose a job, choose citizenship, choose a place to live in the territory of the country and leave it, and have the right to return. furthermore, article 29 of the indonesian constitution states that indonesia is based on the belief in the one and only god. the state guarantees the 29 i made wirahadi kusuma and gede yoga satriya wibawa, “perlindungan anak perspektif hukum hindu." pariksa 2, no.1 (2020): 68. 30 ibid. 31 central bureau of statistics of the republic of indonesia, “penduduk provinsi bali menurut agama yang dianut hasil sensus penduduk 2010 population of bali province by religion based on 2010 population census”, https://bali.bps.go.id/statictable/2018/02/15/33/penduduk-provinsi-bali-menurutagama-yang-dianut-hasil-sensus-penduduk-2010.html 32 i nyoman suarna, i nyoman sulastra, and ni ketut windhi maretha, “aktualisasi hukum hindu dalam sistem hukum di indonesia,” jatiswara 30 no. 3 (2017): 416. 33 the current religious court in indonesia only has the authority to examine, adjudicate, decide, and settle cases between people who are muslim with regards to the issue marriage; inheritance; will; grant; e.waqf; zakat; infaq; shadaqah; and shari'ah economy. see law of no. 48 of 2009 concerning judicial power, art. 25 (3) and law of no. 3 of 2006 concerning amendments to law no 7 of 1989 concerning religious courts, art. 49. the hindu legal philosophy in ngelinggihang dewa hyang tradition: a case study in jero kuta customary village dewa ketut wisnawa 8 freedom of every resident to embrace his religion and to worship according to his religion and belief. although the state protects religious freedom, hindu law can only apply if it is interpreted in customary law.34 currently, hindu law is not a binding law, but is only used as a guide in behavior for hindus. the values contained in hindu law are embodied in balinese customary law. balinese customary law itself is used in solving civil problems as part of legal pluralism. the potential of balinese customary law in national development can be viewed from the historical school and sociological jurisprudence flow. based on these two things, the potential of balinese customary law is none other than a law that is born and lives in the midst of customary society in bali. theoretically, if balinese customary law is included in the framework of developing national law (especially in bali), then the effectiveness of legal enforcement can be more guaranteed.35 in addition, hindu law is also used as a guide in the implementation of hindu religious rituals. hindu law provides the philosophical meaning of every series of religious ceremonies performed by hindus in bali. hindu law is used as the basis for the life of indigenous people in bali who are in a customary village organization. religious law and customary law are two elements of the law that are closely related. customary law has specific characteristics and differentiates it from other laws and has been existing and developing in indonesia, at least for customary society.36 despite customary law does not a type of law that falls into a category of written law as enshrined in the national legislation, the customary community is entitled to give input, both in oral and/or written form, to the substance of a draft of the legislation in which it has interests.37 in addition to being applicable through customary law, the values contained in religious teachings can apply as long as they are used in court decisions, namely as a source of law for judges. judges are obliged to explore, follow, and understand the legal values and the sense of justice that live in society.38 2.2. hindu law as the basis for implementing ngelinggihang dewa hyang rituals in bali are generally based on hindu law that is implemented in the traditions and customs of the local community. in holy book lontar purwa bhumi kamulan, it is mentioned "irika mapisan lawan dewa hyangnia nguni," meaning that there sang dewa hyang (god hyang) unites with dewa pitara (the ancestors). all of them are symbolically placed in 34 some experts view official customary law as the product of colonial and postcolonial efforts to pigeon-hole customary law into western systems of law. see anthony c. diala, "the concept of living customary law: a critique." the journal of legal pluralism and unofficial law 49, no. 2 (2017): 143-165. 35 anak agung istri ari atu dewi, potensi hukum adat: peran majelis desa pakraman (mdp) bali dalam pembangunan hukum nasional," kertha patrika 38, no. 3 (2016): 255. 36 see laurensius arliman, "hukum adat di indonesia dalam pandangan para ahli dan konsep pemberlakuannya di indonesia," jurnal selat 5, no. 2 (2018): 177-190, 179. 37 see of law no. 12 of 2011 concerning the formation of legislation, 38 law no. 48 of 2009 concerning judicial power states, art. 5 (1) udayana journal of law and culture vol. 5 no. 1, january 2021 9 merajan kamulan, commonly called as bhatara hyang guru. merajan kamulan becomes a symbol of primary inspiration for all descendants and place for daily worships. . holy book manawa dharmasastra iii. 203 emphasized that worship should be first directed to the ancestors before continuing to the gods and goddes, as a manifestation of the almighty god. most hindus in bali will firstly pray in merajan kemulan before doing worship to other temples. another analogy is guidance for praying in the besakih mother temple, karangasem regency. balinese hindus will be in favor of firstly do worship at his/her pura padharman,39 before visiting and praying at the main temple, called pura penataran agung besakih. the worship of the ancestor is generally aimed to beg their protection and guidance as well as to strengthen the worship of god and goddess. it is inline with manawa dharmasastra. iii. 192, that explains: "akrodhah caucaparah. satatam brahmacarinah. nyasta castra mahabhagah. fitrah purwa dewatah "(the ancestral spirits are the first gods, free from anger. be careful of their holiness, always be honest, not quarrelsome and rich in virtue). the worship of dewa hyang in the jero kuta customary village, batubulan village is carried out in the merajan kemulan or in paibon40 temple whose form is called pelinggih rong tiga. pelinggih41 is believed to be the abode of bapanta42, ibunta43 and raganta44. if the deceased person is a male, then it is placed on the right side of rong tiga, called bapanta, if the woman is placed on the left side, called ibunta. they are placed there in order to be united with their predecessor ancestors called raganta. such beliefs are ancestral inheritance; therefore, the forms of pelinggih are also symbols believed to have supernatural powers and considered sacred because it is purified and performed worship called piodalan45 ceremonies. therefore, the union of ibunta, bapanta and raganta and real family members is established. simbols for worship is a legacy of ancestors. the family conceives gods are also in the forms of ancestral spirits in a closely intertwined relationship in which this relationship goes beyond the usual relationship between humans. the autonomy of customary village to implement ngelinggihang dewa hyang ceremony reflects social integration, religious, and educational functions. from a social perspective, the implementation of this ceremony mainly functions to foster and preserve solidarity and community participation and to tight ikatan menyama braya (a sense of family ties) in the jero kuta customary village. the family performing ngelinggihang dewa hyang ceremony dissolves in mutual interest, helping each other and working together for the success of this ceremony. thus, the family 39 a temple based on genealogy and family-lines, 40 paibon means family shrine. 41 pelinggih means place of worship, holy object. 42 bapanta means his father. 43 ibunta means his mother. 44 raganta means his body. 45 piodalan means hindu religious ceremony which is usually held once every 210 days or 360 days. the hindu legal philosophy in ngelinggihang dewa hyang tradition: a case study in jero kuta customary village dewa ketut wisnawa 10 members temporarily put aside interests that are more individualized and remain focused on their common interests. this can further become an adhesive tool for the unity and harmony of the community that is jointly involved in the ceremony. social integration here occurs to the people or families who carry out the procession of this ceremony. in other words, through the implementation of this ceremony, the feelings of kinship are increasingly tightened. next, the religious function can be known from the offerings used as symbols of unlimited heart expression, that cannot be represented by words. the educational function contained in the implementation of ngelinggihang dewa hyang starting with ngaben is to return the elements of the corpse, soul and atman (spirit) to their origin, namely panca mahabuta,46 panca tan matra,47 and panca kamendriya48 in bhuwana agung (the universe), and the purification ceremony for the atman (soul) of deceased people in order to be free from papa klesa (the sin). these series of ceremonies are done in the hope that atman can return to the source of life, according to the subha (good) and asubha (bad) karma. all of the ceremony should be carried out with a very respectful and bhakti (devoted service) to the ancestors. from ngaben to atma-wedana (ngelinggihang dewa hyang) ceremony, there are five processes. after the samskara or pangaskaran (purification) and ngaben in the grave, sang hyang atma is called pitra. after ngeroras49 or ngelinggihang dewa hyang accompanied by mendak ring segara (ritual ceremony in the sea or beach) and munggah don bingin ceremony, sang hyang atma is called pitara. after maligya and ngeluwer are accompanied by mendak nuntun50 dewa hyang and nyegara gunung to merajan, sang hyang atma is called dewata-dewati (dewa hyang). that is all the process of the samskara51 ceremony in pitra yadnya. the pitra yadnya ceremony is a sacred offering performed sincerely before the ancestors.52 2.3. autonomy of customary villages in ngelinggihang dewa hyang process in jero kuta customary village customary villages in bali are built based on the philosophy and values of hinduism. the authority of the village is an important element in the study of village autonomy.53 the new autonomy provided to villages also presents ethnic minorities with an opportunity to return to local forms of 46 panca maha butha are the five elements or basic substances that make up the layers of living things, namely earth, fire, water, wind, space. 47 panca tan matra are the five elements of the seeds of life and the seeds of natural objects, namely sound, taste, touch, sight, and smell 48 panca karmendriya means the five senses of the perpetrators of the body, namely the hands, feet, stomach, male genitalia, and female genitalia. 49 ngeroras means ceremony which is performed on 12 days after the person dies. 50 mendak nuntun means to find a place. 51 samskara means ritual or ceremony in hinduism. 52 ni wayan murniti. “filosofi angsa pada bale bukur dalam upacara mamukur di puri pemecutan, kota denpasar,”genta hredaya 3, no.1 (2020): 90. 53 rosnidar sembiring, erna herlinda, and suria ningsih. "implementation of autonomy area through the implementation of village authority," international journal of economic perspectives 11 no. 3 (2017): 1. udayana journal of law and culture vol. 5 no. 1, january 2021 11 customary rule.54 there are four points of view and understanding of village autonomy, namely as follows: first, the formal legal point of view is often put forward by legal experts. a new village can be called autonomous if it gets a division of authority and finance from the state, so that the village has the authority to manage the government. second, village autonomy is only understood and affirmed as a form of state recognition of the existence of villages and their rights of origin and traditional customs. this means that the state does not destroy, but rather protects the existence of the village. third, the concept of 'self-governing community' is often referred to as the equivalent of the phrase 'legal community unity', but so far there has been no adequate elaboration of this foreign concept. fourth, the romanticlocalistic perspective. although the law does not define village autonomy, the official discourse emphasizes that villages have 'genuine autonomy' based on local origins and customs.55 customary institutions have the duty and responsibility to foster and preserve culture and customs, and the implementation of religion.56 in ensuring the implementation of culture, religion and customs, pakraman village has customary law. customary law is a law that is well understood since it originates with the people in the most direct sense57 the implementation of ngelinggihang dewa hyang in jero kuta customary village which is different from the procession of religious rituals in other areas is the village's dresta. customary villages are granted autonomy to carry out activities in accordance with the dresta.58 in general, the ceremony of ngelinggihang dewa hyang can be carried out after nganyud sekah (one of ngaben procession) or can be carried out when piodalan is conducted in the temple. this ceremony is held at sanggah merajan or paibon temple which is adjusted to the usual habits of the families concerned. this ceremony can be led by sang sadaka sulinggih (hindus highest priest) or at the alit (simple) level can be led by jro mangku (hindu priest). ngelinggihang dewa hyang ceremony held in the jero kuta customary village is carrying out nuntun dewa hyang ceremony by waiting for the piodalan ceremony at their merajan, where the dewa hyang is placed. it is conceived that god of pitara should be left for some time to get guidance from ida sang hyang widhi (god). after some time, nuntun dewa 54 christopher r. duncan. “mixed outcomes: the impact of regional autonomy and decentralization on indigenous ethnic minorities in indonesia,” development and change 38, no. 4 (2007): 720. 55 ni'matul huda, "artikel kehormatan: urgensi pengaturan desa dalam undangundang dasar negara republik indonesia tahun 1945." padjadjaran journal of law 4, no.1 (2017): 8. 56 lutfi rumkel, belinda sam, and m. chairul basrun umanailo. “village head partnership, village consultative body and customary institution in village development,” int. j. sci. technol. res 8, no.8 (2019): 1059. 57 saldi isra, ferdi ferdi, and hilaire tegnan. “rule of law and human rights challenges in south east asia: a case study of legal pluralism in indonesia,” hasanuddin law review 3, no.2 (2017): 123. 58 bali provincial regulation no. 4 of 2019 concerning customary villages in bali, art.22 (n). the hindu legal philosophy in ngelinggihang dewa hyang tradition: a case study in jero kuta customary village dewa ketut wisnawa 12 hyang or ngelinggihang dewa hyang ceremony will be held. the essence of this ceremony to be celebrated in merajan and subsequently became the bhatara hyang guru, that is why the essence of worshiping the god of pitara is in order to bring atman closer to brahman. in accordance with the dresta of jero customary village, ngelinggihang dewa hyang ceremony series in the jero kuta customary village is based on the lontar purwa bhumi kamulan. the stages of the ceremony can be divided into nine stages, in which the first is preparing the ceremonial facilities, especially daksina palinggih.59 coconut shell which is used for making daksina palinggih is generally peeled clean, then smeared with coconut oil made from nyuh gading (one kind of coconut with ivory colour). the coconut becomes the symbol of the place of sang dewa hyang, so that the coconut is peeled clean and there are no traces of the fibers at all. the coconut fiber is a symbol of senses bonding, because it has the status of dewa hyang, in which of course it does not have any a symbol of senses bonding. the next stage is to present sang dewa hyang puja tarpana by using this daksina palinggih. after this procession, the entire pratisentana (descendants) offer devotion or pray to sang hyang pitara (ancestors who have been holy). after that, sang dewa hyang is led to be placed in palinggih kamulan by placing daksina palinggih there. if sang dewa pitara meraga lanang (derived from male ancestor), it is placed on the right side of palinggih kamulan. if it is meraga istri (derived from female ancestor), it is placed on the left side of palinggih kamulan. then, sang dewa hyang is given puja mantra jayajaya60 (hindu spell) from pandita61 who leads this ceremony. after getting puja mantra, pratisentana of sang dewa hyang pray again to sang dewa pitara. the next procession is pandita gives puja pralina and mantram penyimpenan (hindu spell) to invite sang dewa pitara to return in the form of suksma or niskala. daksina palinggih or pengadegan of sang dewa pitara is then dilukar (dismantled) and burned. the ash is put into the ivory coconut with kwangen (one of hindu offerings made from young coconut leaves). the last stage is this ivory coconut is then planted behind palinggih kamulan. ngelinggihang dewa hyang ceremony aims to provide a place for the ancestors to be able to guide their offspring.62 the core of banten (type of offering based on balinese hindu) for this ceremony consists of only four groups namely banten ayaban dewa pitara63, banten penuntunan64 to enshrine sang dewa pitara, banten ayaban ida bhatara65 and banten 59 daksina palinggih means symbol of god. 60 puja mantra jaya-jaya means spells for inauguration. 61 pandita means highest priest. 62 ni putu dwiari suryaningsih, “upacara nilapati bagi warga maha gotra pasek sanak sapta rsi di banjar roban desa tulikup kecamatan gianyar kabupaten gianyar (perspektif pendidikan agama hindu),” jurnal penelitian agama hindu 1, no. 2 (2017): 312315. 63 banten ayaban dewa pitara means offerings for the ancestors. 64 banten penuntunan means offerings that deliver. 65 banten ayaban ida bhatara means offerings offered to gods. udayana journal of law and culture vol. 5 no. 1, january 2021 13 placed in front of pandita. based on the structural functionalization theory, the ngelinggihang dewa hyang ceremony is carried out through the same perception by the community in one customary village and carried out through cooperation by the community in the customary village concerned. 2.4 community perception in ngelinggihang dewa hyang ceremony in jero kuta customary village assessment of the understanding of society and the social environment is a study from the perspective of legal culture, a reflexion of legal awareness of the legal subjects of a community as a whole.66 the legal culture of the hindu community in bali shows that all systems of life are based on hindu religious teachings. sang hyang widhi or god almighty has no particular form. he is very big, very small, light and delicate and he permeates and completes the universe. therefore, he is everywhere. god does not have a certain form because he is sarining parama tattwa67, which is the essence of philosophy in the vedas called sat. humans are not able to imagine his form because he is not tangible, so he is called acintya meaning unthinkable. sang hyang widhi (god) cannot be seen, but is only described in words and can be felt like sacred vibrations when concentrating on worshiping him. the existence of hindu law has a very important role in increasing the insight of hindus in knowing the legal rules contained in the vedic scriptures. knowing hindu law as part of the teachings in hinduism can increase hindu understanding.68 humans indeed try to describe the form of sang hyang widhi in their imagination, as the god is believed a tangible form. hinduism knows the limits of human psychology. not all humans can meditate on god in abstract form without any real physical form. in order to guide the mind to god, the existence of a manifestation is valuable assistance. hinduism recognizes the importance of symbols to facilitate its devotees to connect with god. these symbols are manifested in pujamantra,69 in wijaksara,70 in mudras,71 and in the forms of upakara or banten (the offerings), in ceremonial stages and also in other manifestations. banten (the offerings) is a means to revive the connection between the body and nature.72 hindu religious teachings are translated through the implementation of traditional religious ceremonies. 66 sunaryati hartono. 1976. peranan kesadaran hukum masyarakat dalam pembaharuan hukum. bandung: binacipta, 3. 67 sarining parama tattwa means the essence of ethical teachings. 68 ida ayu aryani kemenuh. "31 memahami hukum hindu untuk mewujudkan sumber daya manusia hindu yang berkualitas." pariksa 3, no. 2 (2020): 32. 69 puja-mantra means sacred chant. 70 wijaksara are characters, letters, syllables; sacred syllables that are believed to have the power of chastity. 71 mudras means a hand gesture that guides the energy flow to specific areas of the brain. 72 i gusti agung paramita, “bencana, agama dan kearifan lokal,” dharmasmrti: jurnal ilmu agama dan kebudayaan 18, no.1 (2018): 39. the hindu legal philosophy in ngelinggihang dewa hyang tradition: a case study in jero kuta customary village dewa ketut wisnawa 14 legal culture is one part of human culture that is so broad. legal culture is the same general response from certain societies to legal symptoms. this response is a unified view of legal values and behavior. legal culture shows the pattern of individual behavior as members of society which describes the same response (orientation) to the legal life lived by the community concerned.73 in this study, the legal culture of the community can be seen from the perspective of the traditional village community to implement dresta at the ngelinggihang dewa hyang ceremony. 2.4.1. understanding through interaction with the family environment the hindu community in bali has the responsibility to pay homage and worship ancestral spirits.74 ngelinggihang dewa hyang ceremony is a continuation of ngaben ceremony. at ngaben ceremony, the spirit of the deceased can be called kedas (clean) while at the ngelinggihang dewa hyang ceremony, the spirit of the deceased person is purified to be free from earthly shackles and is believed to reach moksa (the liberation from the cycle of death and rebirth) and obtain a calm and peaceful atmosphere and pretisentana (the family left behind) can live a peaceful and prosperous life because they mragatin (have done their duty). the ceremony aimed at the ancestors is very noble in nature. because for hindus, ancestral spirits after being purified are dewa (gods). pitra yadnya conducted in the form of ngelinggihang dewa hyang ceremony is a way to pay debts to the ancestors or pitra rna. this belief is carried out by the community with the guidance of sulinggih in the form of a ceremony. paying debts to those who have died (ancestors) and those who are still carrying out their obligations in this life will obtain peace and serenity. understanding pitra yadnya is an effort to pay the moral duty. 2.4.2. understanding through interaction with communities the concept is the body must be immediately cremated (aben) to return panca maha butha to god.75 public understanding of ngelinggihang dewa hyang in the series of pitra yadnya ceremonies is a form of the power of human imagination in the process of a spiritual journey to get to the realm of god. the symbols of hinduism which are commonly used in every hindu religious ceremony are called banten (offering) which cannot be separated from religious activities. all of these symbols are inseparable from 73 iman pasu marganda hadiarto purba, "penguatan budaya hukum masyarakat untuk menghasilkan kewarganegaraan transformatif." jurnal civics: media kajian kewarganegaraan 14, no. 2 (2017): 146-153. 74 aa sagung ngurah indradewi, “pergeseran fungsi pura di bali: dari ritual ke pertemuan politik,” jurnal kajian bali (journal of bali studies) 6, no.2 (2016): 196. 75 i dewa made suara, i. putu gelgel, and i. wayan suka yasa. “pitra yadnya implementation for hindu heroes,” international journal of social sciences and humanities 2, no.3 (2018): 137. udayana journal of law and culture vol. 5 no. 1, january 2021 15 the beliefs of the people in the jero kuta customary village which still adhere to a very strong gugon tuwon (believing in something that is considered beyond nature) system which is inherited from generation to generation and is common to be implemented. from this description, after interacting with the community in jero kuta customary village, in the implementation of ngelinggihang dewa hyang ceremony, the true understanding of the symbols in the ceremony is not understood by all people deeply. however, in the implementation of this ceremony, this fact does not reduce the meaning literally. sociocultural life depends on the level of social solidarity or social interaction in a society. community activities in preparing ngelinggihang dewa hyang ceremony always occur in unity between the community and the customary village prajuru (the village officers). the principle of mutual cooperation and unity is so thick that there is a synergy in carrying out a process of preparation for the ceremony which is of course with the interaction between communities. in general, the process of community interaction in the jero kuta customary village in this ceremony is very good with the evidence that the ceremony runs well in accordance with community expectation. ngelinggihang dewa hyang is a ceremony that has functions namely enable the spirit to reach moksa and as the payment of moral duty or obligations to the ancestors. every person is obliged to carry out his yadnya as the implementation of the tri rna (three depts that have been carried since the birth) teachings. in general, the debt is an obligation and must be paid. this debt is not paid with money or some kind of valuables as generally in economic transactions but with the ceremony of yadnya. ngelinggihang dewa hyang ceremony is one part of the pitra yadnya ceremony. it is a human effort in fostering religious relations between the descendants (pretisentana) and their ancestors. this ceremony contains a lot of hope including the souls of the ancestors to be purified, live in peace, and always in happiness. for those who are still alive, it is expected that they can get the grave so that they can live in a decent, safe, and prosperous condition in this world. the ceremony is held in the hope that the souls of the ancestors can be purified in peace and vice versa to those left behind to be given the blessings of a decent life in order to build a peaceful family, community and environment. ngelinggihang dewa hyang ceremony is a pitra yadnya ceremony which is performed after the ngaben ceremony to increase the sanctity of the spirit to become dewa pitara. dewa-pitara means pitara that has existed in dewa (gods) realm, namely swah-loka (realm of the ancestors), but that does not mean that pitara is a god. because dewa pitara that is full of purity is in the realm of the gods and also functions to guide and protect the lives of their offspring, that is why dewa pitara is also given the title of the hindu legal philosophy in ngelinggihang dewa hyang tradition: a case study in jero kuta customary village dewa ketut wisnawa 16 bhatara kawitan76 adored at pelinggih kemulan or kawitan by their descendants. sang hyang atma in the journey to the three realms (bhur loka77, bwah loka78, and swah loka79) is like out of transcendental. atman heads for a higher and holy realm. the atman (soul) pilgrimage to the higher realms is carried out by the ceremonial leader with the spell of mantra penuntunan containing the request to present the pitara, to purify the pitara, to offer the pitara the offerings, to guide the pitara to be calm down, and to ask swarga (heaven) or moksa80 for the pitara with the swargantu81 and moksantu mantra.82 the usual ritual held in ngelinggihang dewa hyang is pangesengan puspalingga (burning) ceremony. before doing it, the pandita pleaded with the puja to burn lara, roga and papa of the pitara and to remove the fetters the atman,83 hoping that the pitara can receive the holy light of sang hyang paramatma.84 the next step is offer respectfully the banten pengresikan (cleaning offering) as a symbol that pitara is outwardly purified, continued by presenting sekul liwet as a meal for pitara. afterward, the pandita delivers holy pawisik85 as a guidance to the sacred niskala realm. lastly, the priest performs puja tirtha pralina86 to transfer atman into a more sacred world of sunia.87 the public has not yet fully understood about ngelinggihang dewa hyang ceremony. several factors cause the lack of public understanding in this ceremony, among others: 1. differences in community understanding of the existence of the ngelinggihang dewa hyang ceremony. the village community thinks more practically about the existence and implementation of the ceremony. they are less concerned about the meaning contained in it because of the superficial understanding of the community. 2. ignorance of the community. the community's ignorance about the importance of understanding the ceremonies is due to the lack of comprehension and community awareness of the knowledge of the ceremony. as an instance, when dharma wacana (the explanation of 76 bhatara kawitan means the ancestors who have preceded us and are already holy. 77 bhur loka means realm to the gods. 78 bwah loka means realm to human nature. 79 swah loka means the realm of the ancestors. 80 moksa is freedom from worldly bonds and also from the cycle of reincarnation. 81 swargantu means got heaven. 82 moksantu mantra is a prayer for a deceased person to become one with god see: i nyoman singgin wikarman. ngaben, upacara dari tingkatan sederhana sampai utama. (surabaya: paramita, 2002), 48. 83 atman means little spark from god. 84 sang hyang paramatma means god almighty. 85 pawisik means get a whisper from the supernatural. 86 puja tirtha praline means holy water that is sprinkled when people die. 87 sunia means the realm of divinity or divinity as perfection and freedom. see: wiana. menuju bali jagadhita, tri hita karana sehari-hari. (denpasar : bali post, 2004), 150. udayana journal of law and culture vol. 5 no. 1, january 2021 17 hindus teaching) held by prajuru desa (village officers), they are less enthusiastic to follow it. 3. education level. the level of education plays an important role in one's understanding of the problems that occur in society. from several interviews with the community, education constraints greatly affect people's understanding of this ceremony so that the implementation is less than perfect without a correct understanding. 4. the development of globalization in people's life. the influence of the development of globalization in the community has led to developments in various fields of people's life. this condition causes shifts in the mindset and behavior of the general public. people tend to follow the flow of globalization and begin to leave the traditions and customs that exist in the customary village. the community understands the symbols in ngelinggihang dewa hyang ceremony through interactions conducted in the community. starting from paruman (meeting) to determine the day of the ceremony, banten or offerings needed and how the community work system so that the ceremony can run well in accordance with the common goals and desires. the paruman is usually led by bendesa adat (the head of customary village) or kelian adat (customary leader in each banjar, a small unit of community). during the paruman, the community members are informed about the plan to hold the ceremony, so they will be voluntarily joined in preparing the ceremony. it is expected that they will have an understanding that a generousity and goodwill based on sradha and bhakti (devotional service) are the essences in supporting the conducting of the ceremony. 3. conclusion hindu law does not have an explicit position in national law, but is used as the guideline for balinese customary law. hindu law establishes an obligation on humans to carry out responsibilities to their ancestors through the holding of the ngaben ceremony along with a series of other ceremonies. hindu legal philosophy teaches that every person has an obligation to free his ancestors from worldly ties through the performance of religious ceremonies. the implementation of ngelinggahang dewa hyang ritual originates from hindu law as enshrined in the manawa dharmasastra, a holy book that provides guidelines in implementing religious ceremonies carried out by hindus. in bali, this hindu law is generally incorporated into the customary law of desa adat (customary village). this type of village has the autonomy to carry out religious, traditional, and social activities in accordance with the dresta (custom). this entails that each customary village may have differences in terms of how the custom should be executed in practice. this paper used ngelinggihang dewa hyang ceremony in the jero kuta customary village as an example of how rituals are different from other villages. this customary village conducts the nyegara gunung ceremony and the ngalinggihang dewa hyang ceremony on different days. it can be the hindu legal philosophy in ngelinggihang dewa hyang tradition: a case study in jero kuta customary village dewa ketut wisnawa 18 assessed that the ceremony implies social integration, religious, and educational functions. the impact of people's understanding on the implementation of ngelinggihang dewa hyang ceremony can be assessed in the interaction in family and community scope that reflects the public perception regarding this ceremony. it can be discovered that the society does not fully understand the meaning of this religious procession due to the following factors; differences in community understanding of the existence of the ngelinggihang dewa hyang ceremony; ignorance of the community, education level, and the development of globalization in people's life. acknowledgement author would like to thank i gusti bagus sugriwa state hindu university for providing research funding in 2018 and all the facilities provided at the social science laboratory. bibliography book barker, chris. cultural studies: teori dan praktek. yogjakarta: bentang pustaka, 1999. hamidi. metode penelitian kuantitatif. malang: universitas muhammadiyah, 2004. hartono, sunaryati. peranan kesadaran hukum masyarakat dalam pembaharuan hukum. bandung: binacipta, 1976. koentjaraningrat. sejarah antropologi i. jakarta: ui press, 1990. salim, agus. teori paradigma penelitian sosial. yogjakarta: tiara wacana, 2006. wiana, menuju bali jagadhita, tri hita karana sehari-hari. denpasar : bali post, 2004. wikarman, i nyoman singgin. ngaben, upacara dari tingkatan sederhana sampai utama. surabaya: paramita, 2002. journal article abdul halim, barkatullah. 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"filosofi ritual hindu, pergeseran antara konsep dan konteks." dharmasmrti: jurnal ilmu agama dan kebudayaan 19, no. 2 (2019): 28-34. widyantara, i., made minggu, i. wijaya, ketut kasta arya, ni komang arini styawati, and i. nyoman sumardika. "environment dispute resolution through awig-awig (customary law)." jl pol'y & globalization 70 (2018): 75-79. law and regulation of the republic of indonesia the 1945 constitution of the republic of indonesia law of no. 3 of 2006 concerning amendments to law no. 7 of 1989 concerning religious courts law of no. 48 of 2009 concerning judicial power law no. 12 of 2011 concerning the formation of legislation bali provincial regulation no. 4 of 2019 concerning customary villages in bali website content central bureau of statistics of the republic of indonesia, “penduduk provinsi bali menurut agama yang dianut hasil sensus penduduk 2010 population of bali province by religion based on 2010 population census”, retreived at https://bali.bps.go.id/statictable/2018/02/15/33/pendudukprovinsi-bali-menurut-agama-yang-dianut-hasil-sensus-penduduk2010.html https://bali.bps.go.id/statictable/2018/02/15/33/penduduk-provinsi-bali-menurut-agama-yang-dianut-hasil-sensus-penduduk-2010.html https://bali.bps.go.id/statictable/2018/02/15/33/penduduk-provinsi-bali-menurut-agama-yang-dianut-hasil-sensus-penduduk-2010.html https://bali.bps.go.id/statictable/2018/02/15/33/penduduk-provinsi-bali-menurut-agama-yang-dianut-hasil-sensus-penduduk-2010.html vol. 4, no. 2, july 2020, pp. 119-145 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3600 e-issn 2549-0680 119 indigenous collaborative governance: an understanding of decision-making process at desa adat in bali, indonesia md putri wiyantari sutaryantha* department of public policy and management, faculty of social and political sciences, universitas gadjah mada-indonesia bevaola kusumasari** department of public policy and management, faculty of social and political sciences, universitas gadjah mada-indonesia article received: 6th march 2020; accepted: 17th july 2020; published: 30st july 2020 abstract the decision-making process that took place at desa adat (indigenous village) involved many actors and stakeholders from various elements of the community, to achieve a common goal. this research highlights the linkages of indigenous collaborative governance among actors involved in the decision-making process at balinese desa adat, indonesia. this research has, thus, discovered how indigenous collaborative governance was linked to the decision-making process and linked to the implementation of local governance, especially in the implementation of adat in bali province. this study emphasizes the extensive use of public administration literature about collaborative governance and the decision-making process. additionally, in-depth interviews and live experience in desa adat were conducted, as it is aimed to explore and understand more about the case. the result provided aligned with the conceptual framework because all of the actual implementation of the decision-making process at desa adat peliatan met the criteria or indicators of collaborative governance. it showed that there was an involvement of indigenous collaborative governance in the process of decision-making at the desa adat level. the practical implication, in this case, is that collaboration matters in the decision-making process involving various elements of society with diverse interests. keywords: indigenous collaborative governance; local decision-making; desa adat. how to cite (chicago 16th): wiyantari sutaryantha, md putri, bevaola kusumasari. “indigenous collaborative governance: an understanding of decision-making process at desa adat in bali, indonesia.” udayana journal of law and culture 4, no. 2 (2020): 119– 145. https://doi.org/10.24843/ujlc.2020.v04.i02.p01. doi: https://doi.org/10.24843/ujlc.2020.v04.i02.p01 * email: putri.wiyantari.s@mail.ugm.ac.id **email/corresponding author: bevaola@ugm.ac.id https://doi.org/10.24843/ujlc.2020.v04.i02.p01 mailto:putri.wiyantari.s@mail.ugm.ac.id mailto:bevaola@ugm.ac.id indigenous collaborative governance: an understanding of decision-making process at desa adat in bali, indonesia md putri wiyantari sutaryantha and bevaola kusumasari 120 1. introduction 1.1. background the existence of collaboration among actors and stakeholders at the local level, to carry out public purposes through a decision-making process established the background of this article. although, some researchers have paid attention to the discussion of the collaborative governance1 and the decision-making process: 2 however, there is still little that explains they both are correlated to each other.3 the correlation may be in a different context if we were looking from the viewpoint of the local governance, or in this case, in the context of the adat governance. therein, thus, lies the significance of this research, because it provides the linkages of indigenous collaborative governance in an actual implementation of the decisionmaking process at desa adat in bali province, indonesia. the implementation of the collaborative governance, which integrates other non-state stakeholders as the main actors, has developed in the last few decades. as an advanced form of the governance system, the collaborative governance accommodates a wider scope of discussion relating to decision-making, policy formulation process, regulatory, and managerial process4. collaboration at the local level was deemed necessary as a method of the decision-making process that was essential in creating trust. as a part of the public administration theory, collaborative governance was based on joint-venture and structural adjustment, which led to the term publicprivate partnership.5 on the other hand, it also offered the opportunity for the implementation of the bottom-up approach, especially in dealing with 1 jill m purdy,. "a framework for assessing power in collaborative governance processes." public administration review 72, no. 3 (2012): 409-417. see also: erik w johnston, darrin hicks, ning nan, and jennifer c. auer. "managing the inclusion process in collaborative governance." journal of public administration research and theory 21, no. 4 (2011): 699-721; koski, chris, saba siddiki, abdul-akeem sadiq, and julia carboni. "representation in collaborative governance: a case study of a food policy council." the american review of public administration 48, no. 4 (2018): 359-373 2 b. beresford, & sloper, t. understanding the dynamics of decision-making and choice: a scoping study of key psychological theories to inform the design and analysis of the panel study. social policy research unit, university of york, 2008. see also: robinson, jennifer, marta sinclair, jutta tobias, and ellen choi. "more dynamic than you think: hidden aspects of decision-making." administrative sciences 7, no. 3 (2017): 23. coulter, angela & collins, alf. making shared decision-making a reality. the king’s fund: london, 2011. 3 chris ansell, and alison gash. "collaborative governance in theory and practice." journal of public administration research and theory 18, no. 4 (2008): 543-571 4 neil gunningham, "the new collaborative environmental governance: the localization of regulation." journal of law and society 36, no. 1 (2009): 145-166. 5 bruce perlman, "introduction: risks and rewards in state and local collaboration" state and local government review 43, no. 1 (2011): 46-48 udayana journal of law and culture vol. 4 no. 2, july 2020 121 regional issues.6 the engagement between local people and the government somehow creates a certain level of democracy that is beneficial in determining policy innovation and mapping out of actors who were involved in the implementation.7 collaboration in different scopes was also indicated by the existence of the desa adat system, which was strongly bounded with what is known as adat law and adat society. desa adat system is the unity of adat law and society in the bali province, which is hereditary, has traditions and norms relating to hinduism, and characterized by the existence of kahyangan tiga or the three main temples in a village8. desa adat which has a wide area and is densely populated will usually be divided into several banjar adat, in which each of them is led by a kelihan banjar. the regulatory system in desa adat is inseparable from the provisions and regulations which apply in the village and are manifested in the adat laws or called the awig-awig. the adat law serves as a guideline for the life of the adat community, it represents the traditions, customs, norms, and cultures that were already deeply rooted in the adat community themselves. those norms and culture eventually result in a force that binds the unity of the adat community. meanwhile, the adat community is a unity of people bounded by the norms, customs, autonomy, and territorial ties, and they are able to govern the lives of their people in accordance with the prevailing customs. customary law community or masyarakat hukum adat organizes their lives independently because they were born and formed by their own society, not by other forces. as other general governance processes do, desa adat also applies the process of decision-making and policy formulation. the process itself embraces all relevant stakeholders from various interests and institutions to formulate the hukum adat or the customary law. according to ter haar in susylawati, 9 hukum adat was established based on a decision that originated from the village legal officials, village judges, religious officials, and community leaders who were considered capable and trusted by the adat community. a decision-making process is an important point of discussion, as this process will determine the moves of an organization through their chosen choice. for desa adat, the decision-making process is 6 j. edwin benton. "local government collaboration: considerations, issues, and prospects." state and local government review 45, no. 4 (2013): 220-223 7 margaret weir, leslie lenkowsky, romand coles, and patrick j. deneen. "collaborative governance and civic empowerment a discussion of investing in democracy: engaging citizens in collaborative governance." (2010): 595-607 8 dewa bagus sanjaya. "harmonisasi, integrasi desa pakraman dengan desa dinas yang multi etnik dan multiagama menghadapi pergeseran, pelestarian, dan konflik di bali." jurnal ilmu sosial dan humaniora 2, no. 2 (2013). 265-274. 9 eka susylawati. "eksistensi hukum adat dalam sistem hukum di indonesia." alihkam: jurnal hukum dan pranata sosial 4, no. 1 (2013): 124-140 indigenous collaborative governance: an understanding of decision-making process at desa adat in bali, indonesia md putri wiyantari sutaryantha and bevaola kusumasari 122 a vital element because it is strongly related with the traditions and customs applied in the area, which must be adapted to the customary law (awigawig), and the technical guideline of the awig-awig (perarem). given the diversity of parties involved in the decision-making process, it shows that genuine collaboration comes from the actors in the adat community in order to determine that the direction of the customary institutions was in accordance with the local traditions and norms. all of the decisions determined should be based on the agreement of all the collaborating actors in the decision-making process. the real implementation of indigenous collaborative government in the decision-making process at desa adat level can be seen in bali province. bali is one of the provinces in indonesia that has strong cultural values and customs, which are widely known, and are still well-maintained. the culture and customs are not only strong in terms of religious matters, but also matters of governance and community regulatory systems. therefore, the implementation of desa adat undoubtedly brought about a substantial influence in this region. the research was conducted in desa adat peliatan, which is a desa adat located in ubud district, gianyar regency, bali province. 1.2 research problem there have been ample studies that discuss desa adat, such as the transfer of land status in desa adat, 10 telajakan identification in desa adat,11 the role of desa adat’s assemblies in the implementation of tourism investment in desa adat area, the legal standing and performance of the financial and banking institution in desa adat. most of the problems that occurred in desa adat were resolved through decisions made by the stakeholders involved, yet there are still very few studies that explain how the actors collaborate in the decision-making process. this study attempts to fill the research gap by focusing more on the involvement of collaboration among actors by referring to indicators of collaborative governance, especially in the process of decision-making at the desa adat level. therefore, based on the explanation above, the researchers feel that this is a very interesting topic to discuss, moreover, it aligns with a collaborative governance system, which indigenously originated from the people themselves. the problem that will be highlighted here in this study is, how 10 i. nyoman prabu buana rumiartha,. "status of village-owned land transfer into the district government assets in kintamani bangli bali." jurnal ius kajian hukum dan keadilan 2, no. 3 (2014).601-614. 11 i.k.g.m mahardika. a.a.g.d sudarsana, & a.a.g sugianthara. telajakan identification in desa pakraman nyuh kuning, kecamatan ubud kabupaten gianyar. ejournal of landscape architecture, 2 no. 1 (2016), 22-31 udayana journal of law and culture vol. 4 no. 2, july 2020 123 indigenous collaborative governance is linked to the decision-making process at desa adat peliatan? this study is, furthermore, aimed to discover the linkages of indigenous collaborative governance in the decision-making process that related to the task of desa adat as stated in article 22 of regional regulation of bali province no. 4 of 2019 concerning customary villages in bali. hence, this article is divided into several parts, which are the introduction, literature review, research methodology, case study, analysis and discussion, and conclusion. 1.3. method outline this article on indigenous collaborative governance in the decisionmaking process was carried out by using the qualitative method with a case study approach. researchers employ qualitative methodology in order to acquire more detailed and in-depth analysis results, which work well for processes involving norms and values, life experiences, culture and customs of a certain tradition, and sensitive issues by conducting in-depth interviews and focusing on the group discussions directly at the source of study12. in addition, the case study approach is one of the approaches in qualitative research that is intensively conducted, as an empirical investigation of a real-life phenomenon in a specific context, in an explored and elaborated way, which was carried out holistically and comprehensively 13 . this research uses a case study approach by providing specific case example of the implementation of indigenous collaborative governance in the decisionmaking process at the local level in desa adat peliatan, ubud sub-district, gianyar regency, bali province. the qualitative approach was utilized in order to gather more specific information relating to the collaboration process in sabha desa or the process of decision-making at the desa adat level. there are two types of sources used in this study, which are primary and secondary data. the primary data is data or information directly acquired from the people or situation under study 14, in which data was gathered through observations conducted at desa adat, also via interviews with the people or stakeholders involved. in this research, several interviews were carried out with the stakeholders such as bendesa or a leader who responsible about adat and kelihan banjar or the head of the village organization group in desa adat peliatan, namely: 1) i ketut sandi (bendesa 12 j. atkinson. qualitative methods. in journey into social activism: qualitative approaches pp. 65-98. new york: fordham university, 2017 13 robert k yin. case study research: design and methods. thousand oaks, ca: sage, 2009 14 phyllis tharenou & donohue, ross. & cooper, brian. management research methods. cambridge: port melbourne, victoria: cambridge university press, 2007 indigenous collaborative governance: an understanding of decision-making process at desa adat in bali, indonesia md putri wiyantari sutaryantha and bevaola kusumasari 124 desa adat peliatan), 2) i made sandiyasa astawa (kelihan banjar yangloni, desa peliatan), 3) i nyoman suparta (member of sabha desa & kelihan pura puseh kahyangan tiga desa adat peliatan), 4) made suardana (former bendesa desa adat peliatan and paritula in sabha desa), 5) i wayan sumada (kelihan banjar teges kanginan, desa peliatan), 6) luh pande nusarini (community leader of desa peliatan and member of sabha desa), and 7) i made dwi sutaryantha (community leader of desa peliatan). numerous observations were also conducted to see what occurred on the field, in order to facilitate the extraction of information relating to the decision-making process in the indigenous collaborative governance at desa adat peliatan. the researcher’s participation in discussions and meetings of desa adat had also been beneficial in order to obtain more accurate information about the case under examination. furthermore, the secondary data which consist of the data collected by other people for their primary purposes 15 was obtained by conducting literature reviews of various documents, such as journals, books, newspapers, law and regulations, and awig-awig and pararem. this secondary data, as supporting documents, contributed to providing more understanding and explanation in relation to the topic of this research. 1.4. literature review 1.4.1. collaborative governance in building a further concept of indigenous collaborative governance, basic frameworks of collaborative governance were needed to define the theoretical background used in this article. governance in terms of collaborative governance means structures, processes, rules, and traditions related to the process of decision-making, and the actualization of accountability16. meanwhile, collaboration means a process of governance that is used to describe an engagement of various societal actors to act in a joint-venture activity 17 . by considering the definition above, collaborative governance is defined as a process and structures of public policy and decision-making which engage people across the boundaries from all levels of the community, in order to carry out a public purpose. a similar 15 erik w johnston, darrin hicks, ning nan, and jennifer c. auer, op.cit. 16 s zadek. & radovich, s. governing collaborative governance: enhancing development outcomes by improving partnership governance and accountability. john f. kennedy school of government: harvard university, 2006. 17 ricardo s morse and john b. stephens. "teaching collaborative governance: phases, competencies, and case-based learning." journal of public affairs education 18, no. 3 (2012): 565-583 udayana journal of law and culture vol. 4 no. 2, july 2020 125 definition was also offered by warm 18 , regarding collaboration in local government, wherein collaboration involves working across institutional boundaries to engage with external individuals and entities in a highly connected way of decision-making and service delivery. it is also cooperation among stakeholders involving government and non-government sectors in addressing public issues. further mentioned in another literature, collaborative governance is a governing arrangement where public agencies directly engage non-state stakeholders in a decision-making process, which aims to implement the public policy for the people. by involving non-state stakeholders such as ngo, media, local authorities or private sectors in the decision-making process, they have a direct responsibility to the policy outcome and are directly engaged in the process themselves. collaborative governance is also defined as a relationship between government as principal or the regulator and private agents, by engaging people constructively across the boundaries, to carry out public purposes.19 governance needs to establish collaboration in order to gather multiple perspectives and provide opportunities for local actors to contribute in giving new understanding20. in relation to all of the explanation concerning collaborative governance above, it can thus be redefined as a new form of government which was executed by involving stakeholders outside the boundaries in the decision-making process, to take a shared-responsibility in implementing public policy based on the norms and values applied in the circumstances. the existence of a collaborative government was prompted by a sense of relationship reciprocity and mutualism among the stakeholders involved to achieve goals that apply to their common needs and interests. 1.4.1.1. indicators of collaborative governance in achieving collaborative governance, there should be some key elements that are required to be applied in the system. there are several key elements as well as indicators for the managed network that works in collaborative governance, which are: 1) networked structure, 2) commitment to a common purpose or mission, 3) trust, 4) governance, 5) network management, 6) access to authority, 7) leadership, 8) distributive accountability and responsibility, 9) information sharing, and 10) access to 18 david warm. "local government collaboration for a new decade: risk, trust, and effectiveness." state and local government review 43, no. 1 (2011): 60-65 19 kirk emerson, tina nabatchi, and stephen balogh. "an integrative framework for collaborative governance." journal of public administration research and theory 22, no. 1 (2012): 1-29. 20 blake d ratner, benoy barman, philippa cohen, k. mam, k. nagoli, and edward h. allison. "strengthening governance across scales in aquatic agricultural systems”, 2012 indigenous collaborative governance: an understanding of decision-making process at desa adat in bali, indonesia md putri wiyantari sutaryantha and bevaola kusumasari 126 resources.21 these elements make it possible for collaborative governance to be used as a broader analysis in public policy decision making involving individuals across public institutions, levels of administration, private sphere to achieve a public purpose otherwise unable to achieve. further explanation of each key element will be given below: the first key element is networked structure and technology, this means that in implementing collaborative governance, the authority formed by all of the stakeholders involved must be in a balanced position, implying that no particular party should take part as a dominating element in the structure. domination in a collaborative system may trigger gap authority, which in the future may cause more substantial disputes. the second one is commitment to a common purpose or mission, it shows approval from the members to achieve positive results in this joint-venture activity. the third is trust, which means that all of the members in the system or organization trust each other to work together in achieving common goals22, and it is needed as a means to establish a more professional relationship among the people in the structure. the fourth key element is governance, which is the arrangement of stakeholders that are involved in the collaborative system, it contains the rules and regulations to govern the members of the system. it is also related to the determination of whether someone belongs as a member of the organization or not. subsequently, the fifth element is network management, meaning people involved in the collaboration can create strategic coordination among actors and develop the ability to solve problems, to tackle issues that are likely to happen in the organization through the networks23. the sixth element is access to authority means that there should be clear procedures and requirements in running the collaborative governance system, in regards to the responsibilities and authorities performed by the authority holders, which have been accepted by all of the members. the seventh key element is leadership, which is defined as a social process in dynamic collaboration wherein the stakeholders and members of the organization develop interaction in a new form of social meaning. the eight element is distributive accountability and responsibility are important in every organization, especially in the implementation of collaborative governance. in collaborative governance, the distribution of 21 s. goldsmith and donald f. k. unlocking the power of networks: keys to high performance government. brookings institution press: washington, d.c, 2009 22 michael pirson and deepak malhotra. "foundations of organizational trust: what matters to different stakeholders?." organization science 22, no. 4 (2011): 1087-1104 23 anthony m bertelli and craig r. smith. "relational contracting and network management." journal of public administration research and theory 20, no. suppl_1 (2010): 121-140. udayana journal of law and culture vol. 4 no. 2, july 2020 127 accountability and responsibility shows the quality level of good governance, because it means they have carried out good management and arrangement in their collaboration to achieve the desired goals. the ninth element is information sharing means there is a new way of finding solutions, by bringing the data in one place to obtain clear data and information and resolve different issues through different perspectives 24 . collaborative governance involves people from numerous differing backgrounds and parties, and that is why a well-defined information distribution is required, to avoid misunderstanding. the last element is access to resources means that clarity and availability of resources (e.g. financial, technical, human, and other resources) in executing collaborative governance need to be regularly maintained for the stakeholders involved in the collaboration. all of the programs that an organization intends to conduct would definitely require adequate resources to realize. 1.4.1.2. indigenous collaborative governance according to the definition in the cambridge dictionary, indigenous is described as something that operates or is happening in the local area, not in other places25. additionally, indigenous is defined as something that is produced, growing, living, and occurring naturally in a particular area. indigenous in this study is used as a term to explain a collaboration, which originated from a place where such kind of collaboration was conducted, and cannot be found anywhere else. such indigenous collaborative governance was applied because the local community desires its existence, by adjusting to the needs and customs applied in the area. this term also represents the bottom-up approach of collaboration, wherein this kind of activity originated from the people and adat community itself, in order to achieve the desired goals and objectives they have previously determined. in this study, the term indigenous can be defined as adat or norms and customs that apply in a certain area of the community. in the implementation of adat governance and regulation in bali, the stakeholders are involved as actors without boundaries, in order to embrace all of the existing interests, and conduct cultures and traditions that were applied in the region. cooperation is of utmost importance in such indigenous collaborative governance because all matters they have agreed on will be run and conducted by the people themselves. 24 b. jackson, how do we know what information sharing is really worth? exploring methodologies to measure the value of information sharing and fusion efforts. in how do we know what information sharing is really worth? exploring methodologies to measure the value of information sharing and fusion efforts (pp. 1-32). rand corporation, 2014. 25 https://dictionary.cambridge.org/dictionary/english/indigenous https://dictionary.cambridge.org/dictionary/english/indigenous indigenous collaborative governance: an understanding of decision-making process at desa adat in bali, indonesia md putri wiyantari sutaryantha and bevaola kusumasari 128 1.4.2. decision-making process a decision is a result of problem-solving and a choice among choices about what is the best thing to do. the decision-making process is a process of choosing an alternative among many alternatives or choices, in order to achieve goals and objectives that are predetermined. it is also a process of determining possibilities in uncertain situations. other scholars added that decision-making is a process of problem-solving for a complex and unstructured problem, by considering several alternatives to achieve desired goals26. on the other hand, the decision-making process commonly involves a decision problem, which is under the consideration of decision-makers, to find an opportunity through the decision-making process in solving the problems. the decision-making process is also characterized by the existence of pronounced differences, which creates more dynamics and alternative choices in the process27. a similar definition was also offered by li, wherein decision-making is about making the best choice among choices and several options, based on the currently occurring situation.28 it is an important component in deciding something related to a more complex problem, for example, negotiation, public policy, control and command, and others. the decision-making process is substantial in public administration because the quality of the decisions will affect the resulting performances of certain institutions and organizations.29 it is also a process of deliberation involving the thought of an individual towards a social phenomenon. 30 the process of decisionmaking occurs due to existing problems that need to be solved, and the decision-makers should be able to find opportunities and alternatives to handle those problems.31 based on all of the definitions pertaining to the decision-making process, it can be concluded that the decision-making process is a process of choosing the best decision from several choices or alternatives, in order to 26 david h jonassen. "designing for decision making." educational technology research and development 60, no. 2 (2012): 341-359 27 alessandro scopelliti. "the political decision-making process in the council of the european union under the new definition of a qualified majority." il politico (2008): 180210 28 bin li. "the classical model of decision making has been accepted as not providing an accurate account of how people typically make decisions." international journal of business and management 3, no. 6 (2008): 151-154. 29 fred c. lunenburg, "the decision making process." in national forum of educational administration & supervision journal, vol. 27, no. 4. 2010. 30 hussien ahmad altarawneh, "the main factors beyond decision making." journal of management research 4, no. 1 (2012): 1-23. 31 oriana-helena negulescu,. "using a decision-making process model in strategic management." review of general management 19, no. 1 (2014): 111-123. udayana journal of law and culture vol. 4 no. 2, july 2020 129 achieve predetermined goals and objectives. it is a process of deciding something in order to determine the best solution for a problem or case, which is highly crucial particularly in the policymaking process. 1.4.2.1. stages of the decision-making process herbart a. simon32 mentioned there are at least three stages of the decision-making process, which are: 1) investigation, 2) designing, and 3) choosing the best choice or alternative. an investigation is a stage in which stakeholders involved in the decision-making process would identify the problem and case, requiring a decision by collecting data and determining what is going on with the problem. designing means the decision-makers will analyze and arrange steps and alternatives which they may take to make a decision based on the problem previously formulated. lastly, choosing the best choice or alternative is about the act of decision-makers in selecting the best choice or alternative based on what they had previously set for their next action. 1.4.3. institutions and social institutions according to uphoff in ohorella, s., suharjito, d., & ichwandi, an institution is a set or an order of norms and customs which has been implemented based on existing characters and behaviors, to achieve common goals.33 institutions can also be defined as a structure of social interactions that apply existing social rules to govern the people within the structure. 34 whereas social institution here is defined as a collective normative social practice which involves new concepts, practices, and elements to solve existing problems.35 the functions of social institutions are: 1) to provide code of conduct, 2) to maintain unity within the society, 3) to serve as social control for the society, and 4) to fulfill the needs of the society. 36 in indonesia, the institution of adat is related to a social 32 ahmad. "kebijakan dan pengambilan keputusan dalam lembaga pendidikan islam." al-ta lim journal 20, no. 2 (2013): 373-379 33 syarif ohorella. didik suharjito, and iin ichwandi. "efektivitas kelembagaan lokal dalam pengelolaan sumber daya hutan pada masyarakat rumahkay di seram bagian barat, maluku." jurnal manajemen hutan tropika 17, no. 2 (2011): 49-55.. 34 geoffrey m hodgson."what are institutions?." journal of economic issues 40, no. 1 (2006): 1-25 35 raimo tuomela. "collective acceptance, social institutions, and social reality." american journal of economics and sociology 62, no. 1 (2003): 123-165 36 tyas widyastini and arya hadi dharmawan. "the effectiveness of awig-awig in livelihood arrangements of fishing community in kedonganan beach." sodality: jurnal sosiologi pedesaan 1, no. 1 (2015) indigenous collaborative governance: an understanding of decision-making process at desa adat in bali, indonesia md putri wiyantari sutaryantha and bevaola kusumasari 130 organization that has the objective of maintaining norms, customs, traditions, and culture of the adat itself.37 1.4.4. the role of adat in public policy agenda adat exists to represent norms, customs, and traditions that have been prevalent for a long time in the social community ties. since adat is an original product of the local community, all of the adat community’s affairs should be based on the prevailing customs. all of the public policies which will be applied in the adat community shall be based on their norms and customs, and not contrary to the adat’s law or awig-awig. the adjustment of public policy is a means of preserving local wisdom, in order to uphold locality values and maintain indonesian multiculturalism. adat as a form of local wisdom has a certain role in the region’s public policy agenda. adat can be positioned as a controller of the politic climate to the central government from the local level, to produce a healthier political relationship between the central and the local governments38. the adat contributions in determining public policy will most likely provide more open political space for the local communities. such kinds of contribution and cooperation are needed to accommodate all the aspirations of the people, which will further have an impact on enhancing the level of democracy throughout the country. in the following is a diagram describing the decision-making process that involves relevant stakeholders in desa adat peliatan: 37 van ast, jacko a., anindya widaryati, and mansee bal. "the ‘adat’institution and the management of grand forest ‘herman yohannes’ in indonesian timor: the role of design principles for sustainable management of common pool resources." conservation and society 12, no. 3 (2014): 294-305 38 j.s. davidson, henley, d., & moniaga, s. adat dalam politik indonesia. jakarta: yayasan pustaka obor indonesia, 2010 udayana journal of law and culture vol. 4 no. 2, july 2020 131 figure 1. decision-making process in desa adat peliatan 2. result and discussion generally, results of this study show that there was indeed a collaboration conducted through adat in the decision-making process that related to balinese adat and hinduism in its territory, particularly at desa adat peliatan which is the research object in this study. desa adat in bali is stated clearly in the regional regulation of bali province no. 4 of 2019 concerning customary villages in bali. this regulation does not refer to law no. 6 of 2014 concerning villages, but rather refers to article 236 paragraph (4) of law no. 23 of 2014 concerning regional government, which states that regional regulation can contain material locally in accordance with statutory provisions. according to this regulation, desa adat has territories, original rights, traditional rights, original arrangements, and original autonomy to regulate and manage their own households. it is also through this regulation that for the first time the desa adat is officially and explicitly recognized as a legal subject with a clear and firm legal position. therefore, the basic principle of this regional regulation is not deviate from local wisdom. the fundamentals must be perpendicular to local wisdom. what is interesting from the decision-making process carried out in desa adat is the prevailing collaboration among stakeholders, in determining the best measures to take in addressing a problematic issue. as implemented by desa adat peliatan, when they were confronted with a problem they have never encountered before, or something they are yet to make provision for in awig-awig, they would have to determine their stance by undertaking a indigenous collaborative governance: an understanding of decision-making process at desa adat in bali, indonesia md putri wiyantari sutaryantha and bevaola kusumasari 132 decision-making process. it is in this very process that adat (custom) based collaborations are found, wherein numerous community figures from various elements of interest involved are accommodated in an assembly that is called sabha desa. every decision made in desa adat was a result of mutual agreement achieved in the sabha desa based on the principles of deliberation and consensus. this means that every decision made in desa adat constantly involves actors deemed capable of contributing to the decision-making process. the actors’ involvement in the decision-making process was found to be directly evident at desa adat peliatan. the continuity of theoretical analysis in the literature review, and the implementation of the case study in desa adat peliatan can be observed in the following elaboration of collaborative governance indicators: 2.1. networked structure the indigenous collaborative governance in desa adat peliatan vividly illustrates a form of network structure, in which all parties involved in the decision-making process are positioned at an equal level without any hierarchy suggesting a form of dominance. all of the individuals present in the desa adat peliatan system are combinations of varying elements with differing interests, albeit grounded by common goals. it is these common goals that have allowed the collaboration to continue to this day in the implementation of multi-party collaboration in the decisionmaking process in desa adat can be discerned from the structure of sabha desa adat peliatan, which is a representation of the respective element found in desa adat peliatan. according to awig-awig desa adat peliatan, sabha desa consists of the village head of peliatan as the “pengayom” (protector) or person in charge, there are also several “paritula” or advisors who come from circles of influential community figures, such as puri or royal figures and griya or spiritual figures. and then, bendesa desa adat was positioned as the leader of sabha desa or which is called “manggala.” sabha desa also has a secretary or “penyarikan” and a treasurer or “patengen” with the task of assisting bendesa adat. sabha desa adat peliatan comprises of various members coming from various relevant sectors in the desa adat structure. the members are kelihan pura kahyangan tiga desa adat peliatan, the kelihan banjar from each of the banjar in desa adat, kelihan pakaseh of pura gunung sari that relates to farming and agriculture, and the kelihan sekaa teruna of the respective banjar in desa adat peliatan or individuals associated with the youth organization. in addition to the aforementioned people, sabha desa members also include several community figures who are considered to have the capacity to provide significant contributions in the decision-making process, such as udayana journal of law and culture vol. 4 no. 2, july 2020 133 the family welfare movement (pkk) or the women organization of desa adat, “pecalang” or security organization and other community figures in desa adat peliatan. bendesa, who in this case is the head of desa adat, was tasked to oversee the implementation of sabha desa. in the decision-making collaboration process, every actor involved has an equal voice regardless of the official position they have. all of the components are involved fairly and equally without any individual dominance. the decisions in sabha desa adat peliatan are made through “briuk sepanggul” without the use of a voting system. “briuk sepanggul” is a term used to describe a mass behavior or actions that follow the voice of the masses39. “briuk sepanggul” is also a means of making a decision based on a shared mutual voice. aside from “briuk sepanggul,” there are also some guidelines employed in making decisions at desa adat, namely “paras paros sarpanaya salulung sabayantaka” which means deliberation and consensus in both happiness and sorrow. the system of “briuk sepanggul (respect each other)” and “paras paros sarpanaya salulung sabayantaka (many hands make light work)” in the decision-making process in desa adat facilitate decision-makers to determine their resolve by considering the shared voice of the people. briuk sepanggul allows all members agree simultaneously at the time of the decision making process. briuk sepanggul ensures that, essentially, the decision is a mutual agreement. since there is usually intense discussion in the forum in advance of the compilation of opinions. when all thoughts and viewpoints have actually been shared, generally leaders who pose questions like "what does the matter mean whether this is acceptable or not?". there will normally be those who say that they agree or disagree and then all debate participants obey as it was the consensus process before they took one another's views. at the same time, paras paros sarpanaya salulung sabayantaka means people can do things more quickly and easily when they have sense of togetherness. the implementation of these two systems allow stakeholder to make a decision based on a collective approval because it represents the respects and honesty of each stakeholder. therefore, the voting system has never been applied in decision-making at desa adat peliatan in order to avoid the formation of coalition groups, that in the future is feared to devastate the mutual system instead. this also indicates that there is no particular element or voice that dominates or stands in power in the indigenous collaborative governance process, mainly in the decision-making process at desa adat peliatan. the theory of networked structure does work in the system of desa adat peliatan. 39 i.w. damayana. menyama braya: studi perubahan masyarakat bali. salatiga: universitas kristen satya wacana, 2011 indigenous collaborative governance: an understanding of decision-making process at desa adat in bali, indonesia md putri wiyantari sutaryantha and bevaola kusumasari 134 2.2. commitment to a common purpose or mission anyone who has an official position or has contributed in the administration of desa adat, is a committed individual since they conduct these administrative activities on the basis of “ngayah” or a form of sincere and genuine service without expecting any reward in return. given such a statement, it can thus be considered that the involvement of all sabha desa members who have provided various contributions and taken part in the decision-making process in desa adat is a form of commitment to a common purpose or mission. the fact that the members are not forced against their will to participate is also another form of commitment shown by the decision-makers of desa adat. additionally, this commitment is also reinforced by having a vision and mission of desa adat peliatan in place, and they are stipulated in awigawig desa adat peliatan, which are strengthen and maintaining religious teachings, prioritize implementation of religious teachings properly, and maintaining spiritual and physical welfare of the village and its community, of this life and the next. having a common purpose that people want to pursue in the implementation of desa adat is also regarded as a commitment to a common purpose or mission because their objective serves as the rationale as to why they collaborate and are committed in a process of decision-making in desa adat. one example of how the commitment to a common purpose or mission is the formulation of awig -awig regarding the joint management of the tanah setra (grave) in desa adat peliatan. this awig-awig then becomes a strong and binding legal basis as a guideline for indigenous in desa adat. in the awig-awig formulated, it was agreed that if there was a violation of the agreement, the sentence given would not only be physical punishment but also a fine of 35 kg of rice40. 2.3. trust as previously mentioned on networked structure, the decision-making process in desa adat is fundamentally based on deliberation and consensus attained through shared discussions held by the relevant stakeholders. the mutual agreements achieved through these discussions are results that indicate the presence of trust fostered among stakeholders to carry out their mission of accomplishing a common goal. additionally, it is also known that the implementation of desa adat peliatan is supported by numerous factors 40 a.a. gd. bgs.trisna ari dalem, a.a. istri ari atu dewi,; i gusti ngurah dharma laksana. eksistensi pengelolaan bersama tanah kuburan (setra) di desa pakraman peliatan ubud-gianyar. kertha desa, 1 no 1 (2018), 1-16. udayana journal of law and culture vol. 4 no. 2, july 2020 135 both external and internal, such as collaborations with desa dinas and human resources involved in the desa adat structure itself. furthermore, the cooperation desa adat peliatan has with desa dinas peliatan are apparent in desa adat’s channel for activity funding assistance that has to go through the village budget (anggaran pendapatan dan belanja desa – apbdes). whatever activity or recommendation desa adat intends to suggest, it should initially be conveyed via the budget prior to eventually being transferred to desa adat and be independently managed according to their articles of association or bylaws (anggaran dasar/anggaran rumah tangga – ad/art). the implementation of desa adat peliatan activities has been able to run properly to this day is undoubtedly due to the influence that the level of trust among all of the support systems of desa adat peliatan has. elaborations on the link between desa adat peliatan and desa dinas peliatan as well as the deliberation/consensus agreement show that there is a mutual sense of trust among the stakeholders involved to support the success of activities implemented in desa adat peliatan. 2.4. governance the desa adat peliatan system has a clear structure in the collaborative process of decision-making in sabha desa, as provisioned in awig-awig desa pakraman peliatan. the membership of those involved in the decision-making process is described in detail as to who are the members of sabha desa and who are not. additionally, several procedures have also been determined in the implementation of desa adat peliatan, which are awig-awig, perarem, and sima dresta. every awig-awig and decisions made by desa adat are documented based on the awig-awig composition guideline and village decree as stipulated by the law and human rights bureau of the bali province regional secretariat41. awig-awig has been regulating all matters relating to the implementation of desa adat, which also relates to matters considered to be either conforming to the standard norm or otherwise. perarem is a technical guideline in the implementation of awig-awig, which also regulates in more specific details matters relating to the implementation of awig-awig at desa adat peliatan. whereas sima means the stake that marks the boundary of an area, and dresta means manners of social life in a desa adat. sima and dresta are also basic rules that have indeed been applied since a long time ago and they remain to be implemented until today, as they are regarded to be of utmost importance and feasible to carry out. 41 w.p. windia, hukum adat bali: aneka kasus dan penyelesaiannya. department of culture in gianyar regency & udayana university press, 2015 indigenous collaborative governance: an understanding of decision-making process at desa adat in bali, indonesia md putri wiyantari sutaryantha and bevaola kusumasari 136 2.5. network management the partnership fostered between desa dinas and desa adat in peliatan is a form of support to the existing collaboration among the stakeholders involved to resolve the issues mutually. goldsmith and donald42, mention that network management concerns the strategic means developed by collaborative actors in order to launch every collaboration activity to achieve a common goal. reflecting on the peliatan case, network management was observed to take place across several organizational units that consist of people from numerous varying interests; yet, they also collaborate in the decision-making process. both of them have their own problems to address in sabha desa, and that is why they are participating in the joint-venture activity as a strategic means to mutually resolve common problems. this also indicates that the indigenous collaborative governance process in desa peliatan is the accumulative result of the support given by stakeholders, who come from various sectors, being involved in the process. upon observation of desa adat peliatan’s implementation, the linkages and collaboration of the various societal elements were clearly apparent in the “pasobayan” process, which is a process of disseminating information regarding the draft of issues to be discussed in sabha desa. such information was disseminated to various elements in desa adat who were involved in the process of decision-making in sabha desa, such as the youth organization, the advisor from the brahmana, and ksatria classes, and other groups who are deemed influential in the process. having various relevant elements involved in the decision-making process at sabha desa also indicates that management of network exists in this process. all elements assemble and engage in mutual synergy to resolve common problems they share and to fully support collaboration and partnership in the decision-making process. the example of network management can be seen when decisionmaking regarding assistance due to the covid-19 pandemic that entered desa adat peliatan. the collaboration of the village and traditional offices in peliatan went very well, the decision making included all the elements in desa adat to be involved. they divided roles to face the current pandemic together. for instance, desa adat, which will make regulations that are usually unwritten, is related to the prohibition of the community to go out, to limit what time the shops should open, and their service will play a role in receiving logistical and data collection assistance. 42 s., goldsmith and f. k. donald. unlocking the power of networks: keys to high performance government. brookings institution press: washington, d.c, 2009. udayana journal of law and culture vol. 4 no. 2, july 2020 137 2.6. access to authority there are several general matters that have become a standard in resolving problems at desa adat peliatan. this can also be observed from the role of kelihan banjar, as the leader of the sub-unit called banjar which is under desa adat, who has direct access to the community. if a problem was to take place in desa adat, the first response would be carried out at the banjar level with kelihan banjar, as the main actor who will determine the process for resolving the said problem. in desa adat peliatan, the means of resolving problems that occur at desa adat have been provisioned in awig-awig or perarem; hence, decisions will be made immediately by the relevant stakeholder, of which in this case is anyone responsible to assist in resolving that problem. this means that if a problem occurred and its resolution has been regulated in awig-awig, in line with the prevailing stipulations, then that problem could immediately be resolved by the relevant actors, without having to undergo the decisionmaking process held in sabha desa. the relevant actor here is primarily the kelihan banjar as the initial actor who directly interacts with the community in confronting the currently occurring problem. this is also in accordance with the access to authority concept because the actors involved in the process have the authority to resolve their problems, according to the general operating procedures that have been widely determined and agreed upon. the implementation of the access of authority concept in desa adat peliatan is shown by the role of kelihan banjar who has access to determine the subsequent measures they should take in resolving an issue. 2.7. leadership based on the result of interviews conducted with the former bendesa desa adat peliatan, the members of sabha desa involved in the process are representatives of the leading figures, who were entrusted by the community to represent their voice and concerns in the decision-making process. it can thus be stated that the selection of leaders in the various societal elements found in the village was determined through a bottom-up approach, in which the community themselves decide who they want to represent them, and then they afford their trust to this particular person to serve as a leader in desa adat peliatan. leadership in sabha desa peliatan is not only shown through the role of bendesa as chief of assembly but also throughout the entirety of the stakeholders involved, particularly those who possess the experience and are capable of providing solutions to the issues they confront. it can be said that all the representative elements involved in the indigenous collaborative governance in the process of sabha desa peliatan are leaders in their respective community group, they are individuals with indigenous collaborative governance: an understanding of decision-making process at desa adat in bali, indonesia md putri wiyantari sutaryantha and bevaola kusumasari 138 the capacity and potential to influence others and contribute to the decision-making process at desa adat peliatan. 2.8. distributive accountability and responsibility the stakeholders’ involvement in the decision-making process within the concept of indigenous collaborative governance shows the actual implementation of distributive accountability and responsibility. in the implementation of desa adat peliatan, all members of sabha desa involved have an equal load of resolving problems, and no particular party should feel that they have gained more benefit or have been more disadvantaged than the others. they have an equal responsibility to resolve their issues and are committed to achieving a common goal in desa adat. every sabha desa member involved in the decision-making process engaged in a mutual synergy when examining an issue, by referring to the prevailing customary laws or awig-awig and pasuara or technical consensus agreed upon on the field. it can be seen from the implementation of the rurung peliatan festival, which makes decisions to determine themes based on local wisdom. in the process of decision making, every sabbha desa member is involved and agreed that the theme of the festival is about farmer behavior. this topic has put forward the potential in the pelitan indigenous village. the issues desa adat confronts varies, and not all of them were written or regulated in awig-awig. as the problems faced by desa adat peliatan. hence, a decisionmaking process in desa adat was required to accommodate all existing interests and affairs of desa adat that are considered necessary, but have yet to be codified or regulated in awig-awig. there are several procedures available for resolving problems confronted in desa adat, the first step is that the problem will be initially resolved by kelihan banjar; if it is not resolved, then it will be brought to paruman banjar (banjar assembly), if it is not settled in the banjar meeting, then it will be brought to the attention of bendesa adat. it does not stop there if the problem remains unresolved at the bendesa desa adat, then the decision-making process relating to that problem will eventually be discussed in sabha desa. sabha desa is a meeting forum in desa adat that functions as a venue to make decisions as well as to implement the teachings of tri hita karana and the actors of desa adat (awig-awig desa adat peliatan). sabha desa or sangkepan desa is a manifestation of democracy at the desa adat level, particularly in managing their own household through the autonomy system. every stage carried out in the process of problem-solving at desa adat peliatan has differing processes and actors; yet, they have the same objective of resolving an existing problem. the process shows that there is equal distribution of accountability and responsibility, wherein every actor udayana journal of law and culture vol. 4 no. 2, july 2020 139 involved must be capable of bearing responsibility and resolving problems mutually in a forum called sabha desa. 2.9. information sharing collaboration in the decision-making process at desa adat peliatan involves various elements in the community, as a form of equality and openness of information access to the whole community. having numerous elements of the community gathered in collaboration, to make decisions will surely disseminate information in a more rapid, effective, and efficient manner since clear structure and mechanism are already present in that process. the process of information sharing can further be witnessed in the actual implementation of desa adat peliatan. as previously mentioned, desa adat peliatan comprises of several banjar adat in desa peliatan and some banjar adat in desa ubud. having linkages of membership that involve other villages in the desa adat peliatan administration requires desa adat peliatan to communicate with other related parties, particularly in the decision-making process. this very open access to information is one of the key elements of collaboration at desa adat peliatan, particularly in the decision-making process, because this village also involves territorial areas of other regions, which require them to keep maintaining good communications and open access to information between one another. desa adat peliatan does not only interact and share information with its members but also does the same with other desa adat. this is vital in order to hone information and knowledge concerning the experiences undertaken by other desa adat so that they can be utilized as lessons learned for desa adat peliatan and vice versa. communication and open access to information must be constantly developed in order to reduce potential misunderstandings that may have dire consequences in the implementation of desa adat peliatan’s existing system. open access to information is currently supported with technological sophistication, allowing most things to be carried out instantly with ease. thus, it can be stated that the dissemination of information to all elements that are involved and uninvolved in sabha desa must continue to be conducted, and should be regarded as a crucial point in the collaboration process. 2.10. access to resources the implementation of desa adat’s programs undoubtedly requires several varieties of resources in terms of personnel, finance, and technical means, in order to achieve the common goal that they have previously agreed upon. in relation to the program implementation at desa adat peliatan, the indigenous collaborative governance in the process of decisionmaking also requires the availability of these various resources, in order to indigenous collaborative governance: an understanding of decision-making process at desa adat in bali, indonesia md putri wiyantari sutaryantha and bevaola kusumasari 140 support the performance of desa adat itself. according to article 10 of regulation of the minister of home affairs no. 113 of 2014 concerning village financial management, financial assistance for desa adat is derived from several sources, such as for instance village budget (anggaran pendapatan dan belanja daerah apbd from the central government, and special financial assistance (bantuan keuangan khusus – bkk) provided by the regional governments, namely the provincial or regional administrations. in addition to that, technical resources can also be obtained, as mentioned in an interview with kelihan banjar adat yangloni of desa adat peliatan, in which it was stated that there are several considerations in decision-making at desa adat peliatan, namely: 1) awig-awig and perarem (technical guideline on the implementation of awig-awig), 2) sima and dresta, situation or conditions that have been inherited and the community themselves have no knowledge of their referred origin, yet they have been around since a long time ago, and are very rarely violated 3) consensus outside of awig-awig and perarem, 4) strategic policy made or sense displayed by the relevant stakeholder that is indeed considered necessary to carry out although they are not specifically discussed in the regulations. related to access to resources, it can be seen from collaboration in terms of decision making to discuss village budget which is done through village deliberations, and all elements are included. a clear structure of membership in the indigenous collaborative governance of sabha desa stands as proof that there is a well-defined pool of human resources that are able to support the collaboration process, particularly in the context of the decision-making process in desa adat. the entire explanation above proves that resources are a vital element in implementing collaboration at the desa adat level and are influential to the performance shown by the desa adat itself. 3. conclusion the involvement of indigenous collaborative governance in the process of decision-making at desa adat peliatan is established based on several basic indicators found in the collaborative governance. those indicators might be implemented in the process of decision-making in desa adat in order to acquire a decisive result that is representative of the entire elements present in the community for the sake of conducting the adat community’s interests in itself. that decision should also be in accordance with the traditions that they commonly apply, and should not stand in opposition to the prevailing customs. the first indicator to consider is network structure, which discusses the availability of clear and structured arrangements of actors in the decision-making process in peliatan’s sabha desa. the following indicator is the commitment to a common purpose or mission, udayana journal of law and culture vol. 4 no. 2, july 2020 141 which requires the institution to have a common objective and clear mission in implementing the decision-making process in desa adat. trust and governance explain the implementation of programs at desa adat peliatan which requires deliberation and consensus, agreement, and clear procedures such as awig-awig and perarem. this is meant to create a more structured and well-defined collaboration process in decision-making. network management talks about the synergy occurring throughout all the elements of indigenous collaborative governance for the common purpose of resolving problems and accomplishing desired goals. subsequently, access to authority and leadership enables actors and leaders to wield the authority of making decisions, when confronted with a problem, and they are entrusted by the community to provide a positive influence on the impact brought about by their decision. in the decisionmaking process that occurs in sabha desa, distributive accountability and responsibility also have quite a significant influence in determining the capacity an organizational level has in problem-solving. each of the elements has its respective portion in resolving customary issues/cases, and it is impossible for an individual party to resolve them. all of the parties involved in the decision-making process of the desa adat must certainly possess clear information, to avoid misunderstandings in the collaboration process. this is also the case with the availability of funding and human resources, which also play significant roles in the collaboration process, and the implementation of sabha desa in 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"local government collaboration for a new decade: risk, trust, and effectiveness." state and local government review 43, no. 1 (2011): 60-65. https://doi.org/10.1177/0160323x11400436 weir, margaret, leslie lenkowsky, romand coles, and patrick j. deneen. "collaborative governance and civic empowerment a discussion of investing in democracy: engaging citizens in collaborative governance." (2010): 595-607. widyastini, tyas, and arya hadi dharmawan. "the effectiveness of awigawig in livelihood arrangements of fishing community in kedonganan beach." sodality: jurnal sosiologi pedesaan 1, no. 1 (2015). law and regulation of the republic of indonesia law no. 6 of 2014 concerning villages law no. 23 of 2014 concerning regional government regulation of the minister of home affairs no. 113 of 2014 concerning village financial management regional regulation of bali province no. 4 of 2019 concerning customary villages in bali https://doi.org/10.1177%2f0160323x11400436 vol. 4, no. 2, july 2020, pp. 146-170 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3600 e-issn 2549-0680 146 unresolved injustice: an examination of indigenous legal issues in australia rachael asher* asia pacific college of business and law, charles darwin university-australia article received: 26th june 2020; accepted: 21st july 2020; published: 30th july 2020 abstract indigenous legal issues are to some extent a neglected and misunderstood subject in the australian political and legal sphere. where there is unresolved injustice, there is suffering. similarly, where there is misunderstanding, there is ignorance. therefore, the purpose of this paper is to explore indigenous legal issues and potential solutions through an examination and analysis of relevant sources. the subjects of discussion in this paper include the limited extent that aboriginal customary law is recognised under commonwealth law; the impact of australian law on indigenous people; the over-representation of indigenous people in the criminal justice system; the inadequate state of indigenous property rights; and comparative law methodology. keywords: aboriginal customary law; indigenous legal systems; indigenous crime; indigenous property rights; comparative law. how to cite: asher, rachael. “unresolved injustice: an examination of indigenous legal issues in australia”. udayana journal of law and culture 4, no. 2 (2020): 146–170. https://doi.org/10.24843/ujlc.2020.v04.i02.p02 doi: https://doi.org/10.24843/ujlc.2020.v04.i02.p02 1. introduction australian governments need to make further amends for the suffering that is experienced by indigenous australians flowing from the unresolved injustices of the past and present. these injustices include the acquisition of this continent by the british crown without consent; the many harms perpetrated against indigenous australians by government authorities thereafter; and the many harms perpetrated by private actors and tolerated by government authorities. the making of amends is a continuing moral obligation that will not be discharged until the suffering of indigenous people is legally resolved to the fullest extent possible. * email/corresponding author: email: rachaelasher@outlook.com.au https://doi.org/10.24843/ujlc.2020.v04.i02.p02 mailto:rachaelasher@outlook.com.au udayana journal of law and culture vol. 4 no. 2, july 2020 147 thus, indigenous legal issues should be at the forefront of the political agenda at national, state, and territory levels in order to fulfil this duty. accordingly, this paper aims to illuminate some of the principal indigenous legal issues that remain to be resolved, and potential solutions, in order to encourage law reform. furthermore, this paper aims to increase understanding about indigenous legal issues by examining research methods that can break through indigenous conceptual cultural barriers. the findings are gathered by reference to relevant sources including legislation, case law, reports, and journal articles. the main topics of discussion in this paper include the limited extent that aboriginal customary law (‘acl’) is recognised in the commonwealth jurisdiction; how australian law impacts the life of indigenous people; the over-representation of indigenous people in the criminal justice system; the inadequate state of indigenous property rights; and the challenges associated with understanding indigenous legal issues that are surrounded by conceptual cultural barriers. 2. result and analysis 2.1. recognition of aboriginal customary law acl is recognised to a limited extent in the commonwealth jurisdiction.1 the term ‘recognise’ is understood herein as meaning ‘to acknowledge formally as existing …’ unless otherwise stated.2 research suggests that in aboriginal tradition the term ‘law’ can be construed as encompassing features that do not fall within a commonly understood definition of law.3 for this reason, law is conceived of broadly in this paper in order to incorporate the aboriginal conception of law that may, from a non-aboriginal perspective, have similarities with ‘shared norms’, ‘rules’ and ‘values’.4 1 heather mcrae et al. indigenous legal issues: commentary and materials (sydney: thomson reuters, 2009), 111-112 para 2.470, 114 para 2.520. 2 australian law reform commission (i), “recognition of aboriginal customary laws report no 31, june 1986,” https://www.alrc.gov.au/wpcontent/uploads/2019/08/alrc31.pdf, [98]. macquarie dictionary, “recognise,” https://www.macquariedictionary.com.au/features/word/search/?search_word_type=dictiona ry&word=recognise, para 4. 3 mcrae, op.cit., 69 para 2.50, quoting law reform commission of western australia (k trees), “contemporary issues facing customary law and the general legal system: roebourne – a case study (background paper no 6, 2004),” https://researchrepository.murdoch.edu.au/id/eprint/11948/1/contemporary_issues_facing.. ..pdf, 218-219. 4 australian law reform commission (i), op.cit., paras 99-100. unresolved injustice: an examination of indigenous legal issues in australia rachael asher 148 2.1.1. a description of aboriginal customary law acl is composed of traditional rules that have been observed by aboriginal australians for several millennia.5 some of the categories of aboriginal law include marriage, kinship systems, crime, land, and dispute resolution, and the content of the law differs between groups.6 violations of the law can attract various penalties depending on the specific aboriginal group and the offence.7 for example, spearing off the body and punishment by way of sorcery.8 acl is a form of religious law and it is transmitted via unwritten modes such as oral communication and art.9 2.1.2. the extent that aboriginal customary law is recognised 2.1.2.1. terra nullius and native title terra nullius is an expression that refers to ‘... a territory belonging to noone …’.10 originally, it was thought that land should be ‘desert and uncultivated’ in order to be deemed terra nullius.11 over time it became evident that australia was not terra nullius as per its original meaning, and as a result, several court decisions progressively broadened the definition of the concept seemingly to override indigenous rights.12 the doctrine of terra nullius applied in australia from 1788 until it was overturned in the high court case of mabo v queensland (no 2) (1992).13 notably, the high court held in this decision that upon colonisation the crown gained ‘… a radical title to land …’, as opposed to absolute ownership, and the former does not preclude the existence of native 5 northern territory law reform committee, parliament of the northern territory, “committee of inquiry: aboriginal customary law (report, 2003),” https://justice.nt.gov.au/__data/assets/pdf_file/0011/238619/ntlrc_final_report.pdf, 13 para 4.2. 6 ibid; mcrae, op.cit., 75, 82, 92, 96, 117. 7 northern territory law reform committee, loc.cit. ruby langford ginibi, "aboriginal traditional and customary laws," law text culture 1, (1994): 9. 8 ginibi, loc.cit. danial kelly (i), “the law of sorcery in madayin,” alj 94, no. 1 (2020): 2 (forthcoming), citing george pascoe gaymarani, “an introduction to the ngarra law of arnhem land,” ntlj 1, (2011): 296-297. 9 ginibi, op.cit., 8. danial kelly (ii), “foundational sources and purposes of authority in madayin,” victoria university law and justice journal 4, no. 1 (2014): 40. 10 (mabo v. queensland (no 2)), judgment, 175 commonwealth law reports 1, 1992, p. 41 (brennan j). 11 gerry simpson, “mabo, international law, terra nullius, and the stories of settlement: an unresolved jurisprudence,” melbourne university law review 19, no. 1 (1993): 199. 12 ibid, 201-202. 13 (mabo v. queensland (no 2)), judgment, 175 commonwealth law reports 1, 1992, p. 180. ashley m foley, “terra nullius: the aborigines in australia” (thesis submission, salve regina university, 2009) https://digitalcommons.salve.edu/cgi/viewcontent.cgi?article=1033&context=pell_theses, 5. udayana journal of law and culture vol. 4 no. 2, july 2020 149 title.14 furthermore, the high court recognised native title under the common law where the native rights and interests held by the original inhabitants under their traditional laws have subsisted.15 in consequence of this decision, the commonwealth legislature passed the native title act 1993 (cth).16 this legislation enables native title claimants to make an application to the federal court for a decision on whether the claimant has recognisable native title rights.17 native title are rights and interests which derive from indigenous law and may be ‘… communal, group or individual rights and interests of aboriginal peoples or torres strait islanders in relation to land or waters …’ such as the right to hunt, fish or collect food.18 findings have been made about the extent of native title recognition by reference to the act in several commonwealth court cases.19 in the croker island case,20 the high court held that native title in relation to seas, including ‘… rights and interests in respect of the sea-bed and subsoil beyond low-water mark and the waters above that sea-bed …’ are recognisable under the common law.21 however, ‘exclusive’ native title rights and interests in relation to the sea cannot be recognised because recognition would create a conflict with concurrent ‘public and international rights’.22 furthermore, in the case of western australia v ward, the high court held that native title protection under the act does not extend to ‘cultural knowledge’.23 in this case, the high court also explained how native title rights can be impacted or extinguished.24 in the case of narrier v state of western australia,25 the federal court recognised the ‘… right to access and take resources for any purpose, including 14 (mabo v. queensland (no 2)), judgment, 175 commonwealth law reports 1, 1992, p. 180, p. 53, 69 (brennan j). 15 ibid, p. 55, 68-69 (brennan j). (love v. commonwealth of australia; thoms v. commonwealth of australia), judgment, australian law journal reports 198, 2020, p. 210 para 34 (kiefel cj). 16 native title act 1993 (cth), s 3. 17 ibid, ss 3, 4(7). 18 ibid, ss 223(1)–(2). 19 (commonwealth of australia v. yarmirr), judgment, 208 commonwealth law reports 1, 2001. (western australia v. ward), judgment, 213 commonwealth law reports 1, 2002. (narrier v. state of western australia), judgment, federal court of australia 1519, 2016. 20 (commonwealth of australia v. yarmirr), judgment, 208 commonwealth law reports 1, 2001. 21 ibid, p. 37 para 8 (gleeson cj, gaudron, gummow and hayne jj). 22 ibid, p. 68 paras 98-100 (gleeson cj, gaudron, gummow and hayne jj). jackie morris, “sea country – the croker island: commonwealth of australia v yarmirr,” indigenous law bulletin 5, no. 14 (2002): 20. 23 (western australia v. ward), judgment, 213 commonwealth law reports 1, 2002, p. 209 para 468 (gleeson cj, gaudron, gummow and hayne jj). 24 ibid, p. 208-212 para 468 (gleeson cj, gaudron, gummow and hayne jj). 25 (narrier v. state of western australia), judgment, federal court of australia 1519, 2016. unresolved injustice: an examination of indigenous legal issues in australia rachael asher 150 commercial purposes …’ as a native title right.26 in a recent high court decision justice edelman stated: ‘the powerful spiritual and cultural connection that aboriginal people have with the land … is, by definition, a powerful spiritual and cultural connection with the defined territory of australia.’27 however, despite this recognised connection to land, which raises questions about the right to sovereignty, two key points relating to nonrecognition were reinforced in this decision.28 firstly, kiefel cj noted that the common law does not ‘… recognise traditional laws and customs as having force or effect in australia’.29 and secondly, gageler j confirmed that australian case law does not recognise the sovereignty of aboriginal groups.30 2.1.2.2. land several pieces of commonwealth legislation recognise aboriginal land rights.31 the aboriginal land rights (northern territory) act 1976 (cth) (‘alra’) has enabled aboriginal groups to acquire inalienable freehold estates over lands that were owned under aboriginal law.32 these estates are vested in aboriginal land trusts which are administered by aboriginal land councils.33 vacant or unalienated crown land of the northern territory could be claimed from the 1970s until 5 june 1997.34 data from 2016 shows that approximately 44 percent of northern territory land is aboriginal land.35 section 74 of the alra confers on aboriginal groups the right ‘… to enter upon aboriginal land and use or occupy that land …’ in a manner authorised by ‘aboriginal tradition’.36 it is noteworthy to mention that there is a significant difference between the alra and native title.37 under the former, the alra grants land to 26 ibid, p. 18 para 32 (mortimer j). 27 (love v. commonwealth of australia; thoms v. commonwealth of australia), judgment, australian law journal reports 198, 2020, p. 288 para 450 (edelman j). 28 ibid, p. 223 para 102 (gageler j), p. 210 para 37 (kiefel cj). 29 ibid, p. 210 para 37 (kiefel cj). 30 ibid, p. 223 para 102 (gageler j). 31 aboriginal land rights (northern territory) act 1976 (cth). aboriginal land grant (jervis bay territory) act 1986 (cth). aboriginal land (lake condah and framlingham forest) act 1987 (cth). aboriginal and torres strait islander act 2005 (cth). 32 aboriginal and torres strait islander social justice commissioner, “native title report 2005 report, 2005,” https://www.humanrights.gov.au/sites/default/files/content/social_justice/nt_report/ntrepor t05/pdf/nativetitlereport2005.pdf, 51-52. aboriginal land rights (northern territory) act 1976 (cth), ss 4, 5. 33 aboriginal land rights (northern territory) act 1976 (cth), ss 4, 5. 34 melinda schroeder, “northern territory law handbook: aboriginal land, native title and heritage,” http://ntlawhandbook.org/foswiki/ntlawhbk/aboriginallandnativetitleandheritage, para 7. 35 ibid. 36 aboriginal land rights (northern territory) act 1976 (cth), ss 71(1), 3 definition of ‘aboriginal tradition’. 37 ibid, s 12; (mabo v. queensland (no 2)), judgment, 175 commonwealth law reports 1, 1992, p. 59-60. udayana journal of law and culture vol. 4 no. 2, july 2020 151 the traditional owners, whereas under the latter, rights and interests in land stem from aboriginal law, and are safeguarded under commonwealth law.38 under the aboriginal land grant (jervis bay territory) act 1986 (cth), ownership of the majority of the jervis bay territory is vested in the wreck bay aboriginal community council, and notably, the council is empowered to make a range of by-laws including law that reflects aboriginal law.39 furthermore, the land has been granted to aboriginal corporations under the aboriginal land (lake condah and framlingham forest) act 1987 (cth).40 under the aboriginal and torres strait islander act 2005 (cth), it is the role of the indigenous land and sea corporation to help aboriginal corporations attain land and water rights and interests.41 2.1.2.3. cultural heritage various pieces of legislation recognise aboriginal cultural heritage rights in respect of sites and objects.42 under the aboriginal and torres strait islander heritage protection act 1984 (cth) the minister is empowered to make legally binding declarations for the purpose of prohibiting harmful actions on australian land, waters, or objects that are of aboriginal cultural importance in circumstances where the relevant state or territory has not taken sufficient protection measures.43 in addition, the protection of movable cultural heritage act 1986 (cth) is designed to prevent unauthorised exportation of ‘… objects that are of importance to australia …’ including those which derive from aboriginal culture.44 and the environment protection and biodiversity conservation act 1999 (cth) recognises indigenous cultural heritage rights by enabling places of significance under indigenous tradition to be included on the national heritage register.45 the act also permits indigenous australians to practice some kinds of traditional activities on commonwealth reserves.46 38 (love v. commonwealth of australia; thoms v. commonwealth of australia), judgment, australian law journal reports 198, 2020, p. 210 para 34 (kiefel cj). aboriginal land rights (northern territory) act 1976 (cth), s 12. (mabo v. queensland (no 2)), judgment, 175 commonwealth law reports 1, 1992, p. 59. 39 aboriginal land grant (jervis bay territory) act 1986 (cth), ss 6, 8, 52a. mcrae, op.cit., 272 para 5.610. 40 mcrae, op.cit., 270-271 para 5.600. 41 aboriginal and torres strait islander act 2005 (cth), s 191d. 42 aboriginal and torres strait islander heritage protection act 1984 (cth). protection of movable cultural heritage act 1986 (cth). environment protection and biodiversity conservation act 1999 (cth). 43 aboriginal and torres strait islander heritage protection act 1984 (cth), ss 4, 9, 10, 13. mcrae, op.cit., 420 para 8.370. 44 protection of movable cultural heritage act 1986 (cth), ss 7(1), 9. 45 environment protection and biodiversity conservation act 1999 (cth), s 324d. environment protection and biodiversity conservation regulations 2000 (cth), reg 10.01a(2)(i). 46 environment protection and biodiversity conservation act 1999 (cth), s 359a. unresolved injustice: an examination of indigenous legal issues in australia rachael asher 152 2.1.2.4. evidence law under the evidence act 1995 (cth), hearsay and opinions are inadmissible as evidence unless an exception applies on the basis that statements of this kind can be unreliable. in relation to exceptions involving acl, the act provides that the hearsay rule and the opinion rule do not preclude the admission of evidence concerning indigenous ‘traditional laws and customs’.47 the expression ‘traditional laws and customs’ is defined under the act as including the ‘… traditions, customary laws, customs, observances, practices, knowledge, and beliefs of the group’.48 the rationale underlying each of the exceptions is to facilitate the admission of evidence about indigenous ‘traditional laws and customs’.49 this is because the legislature recognises that the hearsay rule and the opinion rule can unfairly clash with the unique nature of acl.50 for example, acquiring knowledge of acl necessarily involves hearsay.51 this is because such knowledge is generally transmitted from generation to generation via unwritten modes such as dance, and oral communication.52 therefore, it is usually not possible to understand the content of acl from the original legal source. 2.1.2.5. family law the family law act 1975 (cth) recognises many aspects of aboriginal tradition including cultural rights, kinship systems, and customs associated with caring for children.53 for example, where a parenting order is sought under part vii in relation to a child of indigenous descent, the court must decide whether the order proposed is in the ‘best interests of the child’ by considering various cultural matters, such as the right to experience indigenous cultural heritage.54 furthermore, the court is required to ‘… have regard to any kinship obligations, and child-rearing practices …’.55 these examples within the act and other commonwealth instruments previously referred to demonstrate that many aspects of acl can function harmoniously alongside australian law. however, fragmented forms of recognition at the will of the dominant governing polity do not resolve the issue of recognition to the fullest extent that is possible. broader recognition is needed through a more meaningful legal avenue such as in a treaty. 47 evidence act 1995 (cth), ss 72, 78a. 48 ibid, dictionary part 1 ‘traditional laws and customs’. 49 (mehmet v. carter), judgment, nswsc 413, 2020, para 249 (ward cj). 50 ibid. 51 ibid. 52 ibid; ginibi, loc.cit. 53 family law act 1975 (cth), ss 60cc(3)(h), (6), 60b(3), 61f. 54 ibid, ss 60cc(3)(h), (6), 60b(3). 55 ibid, s 61f. udayana journal of law and culture vol. 4 no. 2, july 2020 153 2.1.2.6. crime in the high court case of walker v new south wales,56 mason cj stated that aboriginal criminal law ‘… was extinguished by the passage of criminal statutes of general application’.57 this essentially means that aboriginal criminal law does not have legal force in australia.58 in addition, when a northern territory or federal court is in the process of deciding a sentence and various other types of determinations, the crimes act 1914 (cth) limits the way that acl can be taken into account.59 it does this by prohibiting such courts from considering ‘… any form of customary law or cultural practice …’60 as a factor that diminishes or increases the severity of both criminal conduct and alleged criminal conduct.61 in other words, these restrictions preclude acl from being acknowledged for the aforementioned purposes in criminal matters.62 however, case law in the northern territory suggests that it can be permissible for courts to consider custom and culture for other reasons.63 it is noteworthy to mention that the provisions can cause unjust judicial outcomes because an objectively right decision cannot be reached without consideration of all relevant factors.64 2.1.2.7. summary of findings part 2.1.2. demonstrates several facts about the extent that commonwealth law recognises acl. firstly, commonwealth law generally recognises the existence of acl.65 secondly, commonwealth law does not formally recognise that aboriginal legal systems coexist with the australian 56 (walker v. new south wales), judgment, 182 commonwealth law reports 45, 1994. 57 ibid, p. 50 (mason cj). 58 ibid. 59 crimes act 1914 (cth), ss 15ab(1)(b)(i)–(ii), 16a(2a)(a)–(b), 16aa(1)(a)–(b), 19b(1a)(a)– (b). 60 ibid, ss 19b(1a)(a)–(b). 61 ibid, ss 15ab(1)(b)(i)–(ii), 16a(2a)(a)–(b), 16aa(1)(a)–(b), 19b(1a)(a)–(b). (the queen v. wunungmurra), judgment, northern territory supreme court 24, 2009, p. 9 para 22 (southwood j). 62 crimes act 1914 (cth), ss 15ab(1)(b)(i)–(ii), 16a(2a)(a)–(b), 16aa(1)(a)–(b), 19b(1a)(a)– (b). 63 (the queen v. wunungmurra), judgment, northern territory supreme court 24, 2009, p. 12-13 para 29 (southwood j). 64 ibid, 11 para 25. 65 aboriginal land rights (northern territory) act 1976 (cth). aboriginal land grant (jervis bay territory) act 1986 (cth). aboriginal land (lake condah and framlingham forest) act 1987 (cth). aboriginal and torres strait islander act 2005 (cth). family law act 1975 (cth), ss 60cc(3)(h), (6), 60b(3), 61f. aboriginal and torres strait islander heritage protection act 1984 (cth). protection of movable cultural heritage act 1986 (cth). environment protection and biodiversity conservation act 1999 (cth). evidence act 1995 (cth), s 72. native title act 1993 (cth). unresolved injustice: an examination of indigenous legal issues in australia rachael asher 154 legal system or aboriginal sovereignty.66 thirdly, commonwealth law gives force to portions of acl by adopting it within the legislation.67 fourthly, commonwealth law will not give force to acl where the latter clashes with the former.68 and fifthly, the common law does not regard acl as having any ‘… force or effect in australia’.69 thus, it is evident that commonwealth law recognises acl to a limited extent.70 2.2. the impact of australian law and criminal justice issues part 2.2. examines examples of how australian law impacts the lives of indigenous australians, and why indigenous australians are over-represented in the criminal justice system.71 research in this area is important because it can be used to ascertain how the law can be improved to promote wellbeing in the lives of indigenous australians. it is ultimately found that australian law impacts how indigenous australians experience traditional life.72 it is also found that indigenous australians are over-represented in the criminal justice system because the australian legal system has created conditions in indigenous life that lessen the personal ‘cost’ of committing a crime.73 the sections that follow discuss the reasons in support of these findings. 2.2.1. the impact of australian law in indigenous tradition, customary law is a guiding source of authority in relation to significant life matters such as how to maintain societal order, rights and obligations, spirituality, purpose, and individual identity.74 australian law impacts how indigenous australians experience life under 66 mcrae, op.cit., 66 para 2.10. (love v. commonwealth of australia; thoms v. commonwealth of australia), judgment, australian law journal reports 198, 2020, p. 223 para 102 (gageler j). 67 mcrae, op.cit., 114 para 2.520. 68 (walker v. new south wales), judgment, 182 commonwealth law reports 45, 1994, p. 50 (mason cj). 69 (love v. commonwealth of australia; thoms v. commonwealth of australia), judgment, australian law journal reports 198, 2020, p. 210 para 37 (kiefel cj). 70 mcrae, op.cit., 111-112 para 2.470, 114 para 2.520. 71 melanie schwartz, “redressing indigenous over-representation in the criminal justice system with justice reinvestment,” precedent (sydney, n.s.w.), no. 118 (2013): 39. 72 mcrae, op.cit., 66 para 2.10. criminal code act 1983 (nt), ss 134, 188, 127, 131a, 192. marriage act 1961 (cth), ss 94, 95. danial kelly (iii), “marriage law in madayin,” australian law journal 88, no. 8 (2014): 536-539. 73 diego gambetta. codes of the underworld: how criminals communicate (new jersey, princeton university press, 2009), 8-9. (love v. commonwealth of australia; thoms v. commonwealth of australia), judgment, australian law journal reports 198, 2020, p. 226 para 121 (gageler j). (milirrpum v. nabalco pty ltd), judgment, 17 federal law reports 141, 1971, p. 267 (blackburn j); mcrae, loc.cit. 74 northern territory law reform committee, op.cit., 13 para 4.4. mcrae, op.cit., 74 para 2.130. (milirrpum v. nabalco pty ltd), judgment, 17 federal law reports 141, 1971, p. 267 (blackburn j). udayana journal of law and culture vol. 4 no. 2, july 2020 155 customary law in several ways. firstly, australian law overrides and removes the legal force of customary law without the consent of indigenous australians.75 secondly, australian law only recognises limited aspects of customary law.76 and thirdly, australian law expressly refuses to recognise acl in some instances.77 by undermining customary law in these ways, australian law has suppressed the role of customary law within indigenous life, and in doing so, it has caused great loss.78 in addition, australian law impacts the lives of indigenous australians by prohibiting and punishing forms of conduct that are lawful under acl.79 for example, the yolngu people of arnhem land adhere to the madayin system of law.80 australian law forbids many types of conduct that can, in specific circumstances, be authorised under madayin law.81 for example, incestuous sexual intercourse and forced sexual intercourse can be obligatory during the ‘kunapipi ceremony’ which is a ritual that is conducted for the purpose of ensuring the fertility of humankind.82 in addition, mandatory sexual intercourse can be imposed as a punishment for misconduct, polygyny is permissible, and physical discipline can be authorised in response to a violation of marriage law.83 furthermore, in the promised marriage system, a girl can engage in a sexual relationship with her husband from the time that she has completed sexual development.84 the moral considerations do not negate the fact that australian law impacts the practice of madayin law. 2.2.2. over-representation in the criminal justice system data shows that indigenous australians have been over-represented in the criminal justice system for many decades, and this problem remains an issue to be resolved.85 over-representation in this context relates to incarceration and many areas where indigenous australians interact with the 75 (love v. commonwealth of australia; thoms v. commonwealth of australia), judgment, australian law journal reports 198, 2020, para 37 (kiefel cj). mcrae, op.cit., 66 para 2.10. 76 mcrae, op.cit., 114-115, 117. 77 (walker v. new south wales), judgment, 182 commonwealth law reports 45, 1994, p. 50 (mason cj). 78 mcrae, op.cit., 66 para 2.10. 79 criminal code act 1983 (nt), ss 134, 188, 127, 131a, 192. marriage act 1961 (cth), ss 94, 95. 80 kelly (ii), op.cit., 33. 81 criminal code act 1983 (nt), ss 134, 188, 127, 131a, 192. marriage act 1961 (cth), ss 94, 95. kelly (iii), loc.cit. 82 kelly (iii), op.cit., 538. 83 ibid, 536-539. 84 ibid, 537. 85 rebecca wallis and april chrzanowski, “addressing indigenous over-representation in the australian criminal justice system: some thoughts about the role of legal institutions as stewards of a complex system,” pandora’s box (2015): 37-38. unresolved injustice: an examination of indigenous legal issues in australia rachael asher 156 criminal justice system.86 for example, schwartz notes that overrepresentation occurs ‘… in the areas of police discretion in regard to diversion, cautioning, arresting and charging, through to bail decisions …’.87 furthermore, data from numerous australian jurisdictions shows that indigenous australians represent a high proportion of victims of violent offences.88 people avoid crime if the personal ‘cost’ of committing crime is too great.89 the expression ‘personal cost’ is intended to refer to the personal consequences that flow from criminal conduct.90 generally, the commission of an offence is of great personal ‘cost’ if a person is valued, and if a person is carrying out meaningful life purposes.91 an argument can be made that these two elements present obstacles for some indigenous australians, that are unique to indigenous life, because of australian law.92 this will now be illustrated with examples. 2.2.3. value and contrition the over-representation of indigenous australians in the criminal justice system is in part due to the fact that the personal ‘cost’ of committing a crime is less where a person has been made to feel unvalued by a historically oppressive legal system.93 similarly, the personal ‘cost’ is low when a person harbours enmity toward the government authorities due to past and present injustices.94 countless examples can be found in australian history of harmful government action against indigenous people such as mass killings, dispossession of land, and racist and discriminatory laws, all of which would give rise to feelings of enmity in the victims towards the government.95 every harmful government action of the past and present conveys to indigenous australians that they are not of value in australian society.96 if meaningful 86 schwartz, loc.cit. 87 ibid. 88 mcrae, op.cit., 503-504 para 10.130. 89 gambetta, loc.cit. 90 ibid. 91 ibid. 92 (love v. commonwealth of australia; thoms v. commonwealth of australia), judgment, australian law journal reports 198, 2020, p. 226 para 121 (gageler j). (milirrpum v. nabalco pty ltd), judgment, 17 federal law reports 141, 1971, p. 267 (blackburn j). mcrae, op.cit., 66 para 2.10. 93 gambetta, loc.cit. mcrae, op.cit., 16 para 1.110, 21 para 1.220, 27 para 1.320. 94 gambetta, loc.cit. mcrae, loc.cit. 95 (love v. commonwealth of australia; thoms v. commonwealth of australia), judgment, australian law journal reports 198, 2020, p. 226 para 121 (gageler j). mcrae, loc.cit. 96 (love v. commonwealth of australia; thoms v. commonwealth of australia), judgment, australian law journal reports 198, 2020, p. 226 para 121 (gageler j). udayana journal of law and culture vol. 4 no. 2, july 2020 157 action through law reform is taken to demonstrate contrition, and the value of indigenous australians, then indigenous australians will be more likely to form a positive outlook on australian society.97 and if a positive outlook is formed, the personal ‘cost’ of committing a crime will become higher.98 2.2.4. life purposes the over-representation of indigenous australians in the criminal justice system also partially stems from the fact that the personal ‘cost’ of committing a crime is low when a person is unable to live out their life purposes.99 for example, some indigenous australians are living under conditions of extreme disadvantage, and this may prevent them from fulfilling their goals in life.100 these conditions can include ‘[p]overty, unemployment, low levels of education, and lack of access to social services …’.101 indigenous customary law created living conditions that met the needs of indigenous peoples for thousands of years.102 colonial law and the australian legal system intruded on this arrangement and diminished its effectiveness.103 if the aforementioned social problems, and the weakening of customary law, can be more successfully addressed, then indigenous australians will be more empowered to carry out their life purposes.104 and when a person is carrying out their life purposes, the personal ‘cost’ of committing a crime is higher than what it would be in a person that is not doing the same.105 2.2.5. summary of findings australian law impacts the way that indigenous australians experience traditional life.106 it does this by significantly replacing and opposing acl, and by prohibiting and penalising forms of conduct that are lawful under acl.107 97 ibid. 98 gambetta, loc.cit. 99 schwartz, loc.cit. gambetta, loc.cit. 100 productivity commission for the steering committee for the review of government service provision, “overcoming indigenous disadvantage report, 2016,” https://www.pc.gov.au/research/ongoing/overcoming-indigenous-disadvantage/2016/reportdocuments/oid-2016-overcoming-indigenous-disadvantage-key-indicators-2016-report.pdf, chapter 1, 4. 101 ibid, chapter 4, 3. 102 (milirrpum v. nabalco pty ltd), judgment, 17 federal law reports 141, 1971, p. 267 (blackburn j). northern territory law reform committee, op.cit., 13 para 4.3. 103 mcrae, op.cit., 66 para 2.10. 104 ibid. 105 gambetta, loc.cit. 106 mcrae, loc.cit. criminal code act 1983 (nt), ss 134, 188, 127, 131a, 192. marriage act 1961 (cth), ss 94, 95. kelly (iii), op.cit., 536-539. 107 (love v. commonwealth of australia; thoms v. commonwealth of australia), judgment, australian law journal reports 198, 2020, p. 223 para 102 (gageler j). mcrae, loc.cit. criminal code act 1983 (nt), ss 134, 188, 127, 131a, 192. marriage act 1961 (cth), ss 94, 95. kelly (iii), loc.cit. unresolved injustice: an examination of indigenous legal issues in australia rachael asher 158 the over-representation of indigenous australians in the criminal justice system is at least in part due to the australian legal system.108 customary law provided living conditions that served indigenous peoples for millennia, and this state of affairs was undermined by the imposition of colonial law and the australian legal system.109 furthermore, it was undermined by a long history of harmful government action.110 these past actions have created conditions within indigenous life today that can have the effect of lessening the personal ‘cost’ of committing a crime.111 2.3. improving indigenous property rights the present state of indigenous legal rights in australia is inadequate on account of numerous reasons.112 it is necessary to further develop indigenous legal rights in order to reduce injustice and to enhance the wellbeing of indigenous australians. to assist in achieving these objectives, part 2.3. argues that indigenous property rights have not progressed to an adequate extent partially due to the limitations of the native title act 1993 (cth) (‘the act’), and communally owned indigenous land rights.113 these arguments will be demonstrated by discussing how the native title system has the capacity to disqualify valid native title claims, and how the communal indigenous land system generally does not economically benefit individuals.114 2.3.1. native title in the process of making a native title claim the applicant must prove that they hold native title within the meaning that it is given under section 223(1) of the act.115 aboriginal and torres strait islander peoples can face 108 gambetta, loc.cit. (love v. commonwealth of australia; thoms v. commonwealth of australia), judgment, australian law journal reports 198, 2020, p. 226 para 121 (gageler j). (milirrpum v. nabalco pty ltd), judgment, 17 federal law reports 141, 1971, p. 267 (blackburn j). mcrae, loc.cit. 109 (milirrpum v. nabalco pty ltd), judgment, 17 federal law reports 141, 1971, p. 267 (blackburn j). northern territory law reform committee, loc.cit. mcrae, loc.cit. 110 mcrae, op.cit., 16 para 1.110, 21 para 1.220, 27 para 1.320. 111 gambetta, loc.cit. 112 garth nettheim, “developing aboriginal rights,” victoria university of wellington law review 19, no. 4 (1989): 407. 113 australian law reform commission (ii), “connection to country: review of the native title act 1993 (cth) report no 126, april 2015,” https://www.alrc.gov.au/wpcontent/uploads/2019/08/alrc_126_final_report.pdf, 17-19. helen hughes, mark hughes, and sara hudson, “private housing on indigenous lands report, 2010,” https://www.cis.org.au/app/uploads/2015/07/pm113.pdf, 1-2. 114 australian law reform commission (ii), loc.cit. helen hughes, mark hughes, and sara hudson, loc.cit. 115 native title act 1993 (cth), s 223(1). udayana journal of law and culture vol. 4 no. 2, july 2020 159 many impediments when attempting to fulfil the definitional criteria.116 for example, under section 223(1) of the act, claimants are required to demonstrate that the laws and customs giving rise to the native title rights are ‘traditional’ in nature.117 under the present law, several requirements are incorporated into the term ‘traditional’.118 these include: (1) each generation has transmitted the laws and customs to the following generation; (2) the laws and customs predate the arrival of the british to this continent; and (3) the laws and customs have operated in a ‘continuous’ manner from the moment in time that this continent became a dominion of the british crown.119 these strict requirements can create injustice by disqualifying legitimate native title claims.120 for example, wootten states in relation to this: ‘ironically, the more injustice a community has suffered in the way of dispossession, forced movement and institutionalisation, and suppression of its traditional culture, the less chance it will have of establishing title.’121 in essence, the requirements that must be satisfied in order to fulfil the definition of ‘tradition’ are unjust given that loss of tradition has predominantly occurred due to the actions of australian governments.122 furthermore, the criteria preclude the protection of native title where the laws and customs have changed since the arrival of the british.123 this is also problematic given that law inevitably transforms in accordance with changing societal norms, values and conditions.124 the australian law reform commission (‘alrc’) has suggested that several native title reforms be implemented in order to improve the native title system, and to facilitate accomplishing the objectives of the act which concern giving life to native title rights.125 for example, it has suggested that a statement be inserted into the act which recognises ‘… that traditional laws and customs under which native title rights and interests are possessed may adapt, evolve or otherwise develop’.126 furthermore, the alrc has suggested that a statement be inserted into the act which recognises that there is no need to establish that the laws and customs have operated ‘… substantially uninterrupted since sovereignty …’.127 and the alrc has suggested that a statement be included in the act which recognises that there is no need to 116 australian law reform commission (ii), loc.cit. 117 ibid, 18-19. 118 ibid. 119 ibid. 120 hal wootten, “occasional address,” unsw law review 18, no. 2 (1995): 234. 121 ibid. 122 ibid. 123 australian law reform commission (ii), op.cit., 18-19. 124 e donald elliott, “the evolutionary tradition in jurisprudence,” columbia law review 85, no. 38 (1985): 38. 125 australian law reform commission (ii), loc.cit. native title act 1993 (cth), s 3. 126 australian law reform commission (ii), op.cit., 19. 127 ibid. unresolved injustice: an examination of indigenous legal issues in australia rachael asher 160 prove that an indigenous group has subsisted and practiced the laws of their legal system in a unified manner from a time which predates this continent becoming a dominion of the british crown.128 such reforms would have the effect of furthering the purposes of the act by enabling the success of a wider range of legitimate native title claims.129 accordingly, these reforms need to be implemented in order to further develop native title rights.130 2.3.2. private indigenous land rights prior to the colonial period, land was owned communally under traditional indigenous laws.131 in recent decades, australian governments have recreated communal ownership systems by granting vast amounts of land in australia to the traditional indigenous owners in the form of inalienable freehold communal title.132 attempting to recreate the indigenous communal system of ownership in its past form has arguably disadvantaged indigenous people living on communal indigenous lands significantly.133 to illustrate, indigenous australians living on communal indigenous lands are experiencing some of the most terrible living conditions in australia.134 government solutions such as the provision of social housing and control over how welfare is spent do not address the heart of the issue.135 namely, good living conditions partially derive from private ownership rights such as the right to privately own land, and the right to privately own a business.136 indigenous landowners cannot own government-granted indigenous land in a private capacity.137 as a result, they are precluded from enjoying the economic benefits that can be attained through private rights such as homeownership and prospering financially through businesses.138 thus, when law reformers sought to give back land to the traditional indigenous owners arguably the objective should not have been to recreate indigenous ownership systems as close to the old form as possible.139 instead, it should have been to create a system that gives life to the fundamental aspects of the old system while still enabling indigenous peoples to progress in 128 ibid. 129 ibid. native title act 1993 (cth), s 3. 130 australian law reform commission (ii), op.cit., 18-19. 131 leon terrill, “the days of the failed collective: communal ownership, individual ownership and township leasing in aboriginal communities in the northern territory,” unsw law journal 32, no. 3 (2009): 817. 132 helen hughes, mark hughes, and sara hudson, op.cit., 1-2, 4. 133 ibid, 1-2. 134 ibid, 1. 135 ibid. 136 ibid, 2. 137 ibid, 1-2. 138 ibid. 139 ibid. udayana journal of law and culture vol. 4 no. 2, july 2020 161 the modern world.140 it is unjust that indigenous australians living on such lands must relocate from their traditional lands in order to purchase a home.141 and in any case, in most instances, relocating is impossible due to numerous barriers.142 this means that the people living on those lands are generally trapped in a cycle of disadvantage.143 in a report titled ‘private housing on indigenous lands’, the authors propose that indigenous owners of traditional land should be able to attain private land ownership rights, as well as how this idea could be achieved whilst still preserving communal property rights.144 the recommendations made by the authors may face opposition due to the fact that preventing the land from being alienated ensures that the lands remain in the possession of the traditional owners, and it precludes predatory buyers from purchasing the land below the market value. however, while these protections are important, the prohibition is unjust on its own and requires exceptions.145 enabling access to private land rights is not a radical idea because the system proposed is similar to how land rights function in the rest of australian society.146 for example, certain areas of land are designated for private ownership such as residential areas, while other areas of land are designated for communal use, such as libraries and parks.147 furthermore, the creation of private land rights on indigenous lands would not amount to imposing western economic values on indigenous peoples.148 research suggests that a large proportion of indigenous traditional landowners support the idea of attaining private land rights.149 and this may be evidence of a new norm where increased value is being placed on individual economic progression within remote indigenous communities.150 accordingly, the present land rights of the traditional indigenous landowners across australia cannot be regarded as properly developed in the absence of private land rights.151 2.3.3. summary of findings the native title system unfairly disqualifies legitimate native title claims through its rigid requirements.152 native title claims should not be rejected on 140 ibid. 141 ibid, 6-7. 142 ibid. 143 ibid. 144 ibid, executive summary vii-viii. 145 ibid, 1-2. 146 ibid, 2. 147 ibid. 148 ibid, 7. 149 ibid. 150 ibid. 151 ibid, 1-2. 152 australian law reform commission (ii), op.cit., 17-19. unresolved injustice: an examination of indigenous legal issues in australia rachael asher 162 the ground that the indigenous law or custom has altered since the time that this continent became the dominion of the british crown.153 this is because law ordinarily transforms in order to adjust to changing social norms, values, and conditions.154 furthermore, the concept of ‘tradition’ under the native title system must be understood more broadly in order to ensure that the injustices of the past do not prevent justice in the future.155 private land rights may promote quality of life in that through such rights people can obtain the benefits that flow from homeownership, and people can prosper from the land by using it for business purposes.156 for these reasons, traditional indigenous landowners must be able to attain private property rights on indigenous lands so that they may have a greater opportunity to progress at an individual level.157 accordingly, indigenous property rights need to be developed in order to lessen injustice and to enhance the wellbeing of indigenous australians. 2.4. the value of a comparative law perspective indigenous legal issues (‘ilis’) must be extensively understood in order to conscientiously assess the quality of proposed solutions.158 in the quest to obtain an extensive understanding of ilis, comparative law may be required for two reasons. firstly, ilis can be challenging to understand exclusively through an australian legal perspective because some issues are embedded in a uniquely aboriginal cultural context that is surrounded by many conceptual barriers.159 and secondly, comparative lawyers can break through such barriers for the purpose of providing specialist insights about ilis through the use of the ‘law-in-context method’.160 to support these propositions, the sections that follow discuss: (1) comparative law theory; (2) how comparative law research could have broken cultural barriers thereby enabling increased insight about ilis during the colonial period and beyond; and (3) how comparative law research can facilitate understanding of ilis in contemporary australian society. the examples provided in part 2.4. are about issues which require a comparative law perspective due to their nature. it is not argued that all ilis require understanding through comparative law. 153 ibid, 19. 154 elliott, loc.cit. 155 australian law reform commission (ii), op.cit., 19. wootten, loc.cit. 156 helen hughes, mark hughes, and hudson, loc.cit. 157 ibid. 158 christopher a whytock, “legal origins, functionalism, and the future of comparative law,” brigham young university law review, no. 6 (2009): 1879. 159 edward j eberle, “the methodology of comparative law,” roger williams university school of law 16, no. 1 (2011): 52. ronald sackville, “legal protection of indigenous culture in australia,” cardozo journal of international and comparative law 11, no. 2 (2003): 714-15. 160 mark van hoecke, “methodology of comparative legal research,” law and method, no. 12 (2015): 16. udayana journal of law and culture vol. 4 no. 2, july 2020 163 2.4.1.comparative law theory comparative law is a form of legal research that can be undertaken using a range of methodology, however, it generally entails: (1) comparing the ‘similarities’ and ‘differences’ between legal systems; (2) objectively analysing those findings; and (3) drawing conclusions.161 comparing legal systems can serve many purposes including to gain a deeper understanding of ilis.162 research can be undertaken using an individual method or multiple methods, and comparative lawyers ascertain which methods should be used, and which legal systems should be compared, by considering the nature of the research subject matter, and the objective of the research.163 the application of a basic comparative method, which essentially involves comparing, and a variant of the ‘law-in-context’ method, can be used in conjunction to make significant findings about ilis.164 the ‘law-in-context’ method referred to involves examining the ‘legal culture’ of a foreign society, or in other words, the contextual features that impact how the laws develop, in order to facilitate identifying, comprehending, and comparing, the laws under examination.165 eberle states that these features may include: ‘… religion, history, geography, morals, custom, philosophy or ideology, among other driving forces’.166 2.4.2. understanding indigenous issues through comparative methods comparative law research about indigenous ‘legal culture’ on this continent and in other nations could have facilitated a greater understanding of ilis during colonial times and beyond.167 this proposition can be illustrated by comparing common elements across australian indigenous legal systems and south american indigenous legal systems. firstly, under the aforementioned systems, the concepts of law, religion, and culture operate in a very amalgamated form.168 secondly, social interactions are governed by a spiritual source in the legal systems of both indigenous populations.169 thirdly, south american indigenous legal systems contain rules related to ‘… communal and collective aspects of ownership …’, and australian indigenous legal systems similarly embrace such concepts.170 fourthly, land or land 161 hoecke, op.cit., 8. eberle, op.cit., 52, 55, 57-8, 62. 162 hoecke, op.cit., 2, 8. 163 ibid, paras 2, 1, 4. 164 ibid, paras 4, 4.4. 165 ibid, para 4.4. eberle, op.cit., 52, 65. 166 eberle, op.cit., 52. 167 ibid, 52, 65. 168 rodrigo míguez núñez, “indigenous customary law in a civil law context: latin america and the chilean case,” rechtsgeschichte legal history, no. 24 (2016): 302-3. sackville, loc.cit. 169 núñez, op.cit., 302. sackville, loc.cit. 170 núñez, op.cit., 302-303. terrill, loc.cit. unresolved injustice: an examination of indigenous legal issues in australia rachael asher 164 features may be ‘sacred’ in both systems due to the mystical nature of the terrain.171 and fifthly, these systems provided social order, notwithstanding that the systems are different to common law legal systems in the following ways: (1) the philosophies of each indigenous ‘legal culture’ are spiritual in nature, unlike western legal philosophy such as legal positivism which is profane in nature; (2) indigenous law is given its force by spiritual powers; (3) communal property rights are an important aspect of indigenous property law; and (4) the rights to land or land features derive at least in part from a mystical relationship with the terrain.172 thus, comparative law research could have shown that similar cultures can produce similar legal systems.173 furthermore, it could have demonstrated that australian indigenous legal systems share a wide range of similarities with other indigenous legal systems that have similar contextual features, and all systems achieve social order as well as other fundamental purposes.174 and since legal systems are designed to fulfil fundamental purposes particularly in relation to social order, these findings could have been used to conclude that such systems should be preserved notwithstanding that the dominant legal systems of the world differ significantly.175 in addition, if these findings had of been better understood during the colonial period and beyond through a comparative law perspective, then the following positive outcomes may have ensued: (1) this knowledge may have led to the adoption of formal legal pluralism when colonisation began; (2) every legal system on this continent may have been preserved, while gradually evolving in a way that aligned with human rights principles; (3) treaties may have been agreed to, and land may have been exchanged through negotiation and payment, rather than by force; (4) there may have been less discriminatory and racist law that applied to indigenous people; and (5) there may have been less arbitrary killings of indigenous people.176 accordingly, these findings and conclusions demonstrate that a comparative law perspective can be required when in the process of seeking to understand and resolve ilis. 171 núñez, loc.cit. sackville, loc.cit. 172 núñez, loc.cit. sackville, loc.cit. terrill, loc.cit. kenny yang, “the rise of legal positivism in germany: a prelude to nazi arbitrariness?” western australian jurist 3, no. 9 (2012): 245-6. 173 sackville, loc.cit. núñez, loc.cit. eberle, loc.cit. 174 sackville, loc.cit. núñez, loc.cit. eberle, loc.cit. legal monitor worldwide, “i want the true law that brings peace and harmony: five questions for dianne biritjalawuy gondarra,” https://cdu-eduprimo.hosted.exlibrisgroup.com/permalink/f/7r169d/tn_gale_ofg388105271, para 9. 175 marshall cohen, “law, morality and purpose,” villanova law review 10, no. 4 (1965): 647. legal monitor worldwide, loc.cit. 176 mcrae, op.cit., chapter 1. udayana journal of law and culture vol. 4 no. 2, july 2020 165 comparative law research can also be required when seeking to understand ilis in contemporary society. for example, comparative law can be used to: (1) compare the ‘legal culture’ of australian indigenous legal systems with the australian legal system such as by exploring philosophies and the meaning of key terms; (2) ascertain and compare the legal rules of australian indigenous legal systems and the australian legal system; and (3) identify where australian indigenous law either conflicts with, or operates in harmony with, australian law or international legal principles.177 furthermore, an analysis of such findings can then be used for two key purposes related to ilis. the first is to obtain an extensive understanding of culturally complex ilis.178 and the second is to draw conclusions on ways of resolving ilis.179 insight about australian ilis can also be gained through comparative law research about the legal problems experienced by indigenous peoples in other nations.180 to illustrate, research suggests that compelling indigenous peoples to assimilate inevitably leads to significant social problems.181 for example, in both australia and canada, removing aboriginal children from their communities and placing them in appallingly managed residential schools, in order to assimilate them, has profoundly impacted those children and their descendants across many generations.182 some of these impacts include engaging in criminal conduct, mental health issues, loss of family relationships and tribal networks, disconnection with cultural heritage, and decreased use of indigenous languages.183 the similarity between the impacts experienced by indigenous australians and indigenous canadians is a factor that strongly demonstrates that compelled assimilation contributes to social problems.184 thus, this comparative law research provides insight about how past assimilation laws and policies in each nation were immeasurably harmful.185 this finding can be used to draw conclusions about how future law and policy related to assimilation and indigenous peoples should be shaped.186 in addition, comparative law research can be used to compare how each nation has attempted to alleviate the impacts of compelled assimilation in order to 177 eberle, op.cit., 55-6, 64. h c gutteridge, “comparative law and the conflict of laws,” transactions of the grotius society (cambridge university press 29, (1943): 119-20. 178 eberle, op.cit., 55. 179 ibid. 180 antonio buti, “the removal of aboriginal children: canada and australia compared,” university of western sydney law review 6, (2002): 25. 181 ibid, 25, 29-30. 182 ibid. 183 ibid, 29-30. 184 ibid 25, 29-30. 185 ibid. 186 ibid. eberle, op.cit., 58. unresolved injustice: an examination of indigenous legal issues in australia rachael asher 166 determine whether current solutions should be improved, or whether additional solutions are necessary.187 2.4.3. summary of findings a comparative law perspective can be required in order to obtain an extensive understanding of ilis in the australian setting.188 this is because ilis are embedded in a culturally unique context that is replete with concepts that are difficult to comprehend solely through an australian legal perspective.189 the ‘law-in-context’ method can be used to overcome this obstacle because it enables legal researchers to break through the cultural barriers that prevent ilis from being adequately understood.190 and once such barriers are broken, comparative lawyers can convey specialist insights about ilis using a range of methodology.191 3. conclusion acl is not yet recognised to an adequate extent under commonwealth law. recognition of acl to the fullest extent that is possible, where it does not conflict with australian law and human rights, has the potential to deliver numerous positive outcomes. for example, the reinvigoration of oppressed indigenous legal systems would help to fill a void in the lives of indigenous people, and intercultural relations would improve exponentially. the over-representation of indigenous people in the criminal justice system stems at least in part from two issues: the personal ‘cost’ of committing a crime is lessened where a person feels unvalued; and the personal ‘cost’ of committing a crime is lessened where a person is unable to live out their life purposes.192 australian law does not adequately express the value of indigenous people. and the injustices of the past and present remind indigenous people of this hurtful reality. furthermore, poor social conditions are preventing many indigenous people from fulfilling their life purposes.193 when the true issues giving rise to over-representation are addressed and resolved, contact with the criminal justice system will inevitably reduce. this is because solving these problems will in turn increase the personal ‘cost’ of committing a crime. 187 buti, op.cit., 30-7. 188 hoecke, op.cit., 16. eberle, op.cit., 52. 189 sackville, loc.cit. 190 ibid. hoecke, loc.cit. eberle, loc.cit. 191 hoecke op.cit., 8. 192 gambetta, loc.cit. 193 productivity commission for the steering committee for the review of government service provision, op.cit., chapter 4, 3. udayana journal of law and culture vol. 4 no. 2, july 2020 167 indigenous property rights are not yet developed to the fullest extent possible. the concept of ‘tradition’ under the native title act 1993 (cth) is rigid and unfairly precludes legitimate claims.194 furthermore, traditional indigenous landowners of government-granted lands cannot economically progress due to the absence of private land ownership rights.195 lastly, comparative lawyers are able to convey specialist insights about indigenous legal issues that are surrounded by conceptual cultural barriers.196 for this reason, a comparative law perspective can be of value when attempting to understand indigenous legal issues. bibliography books mcrae, heather, et al. indigenous legal issues: commentary and materials. sydney: thomson rueters, 2009. gambetta, diego. codes of the underworld: how criminals communicate. new jersey: princeton university press, 2009. journal articles buti, antonio. “the removal of aboriginal children: canada and australia compared.” university of western sydney law review 6 (2002): 25-37. cohen, marshall. “law, morality and purpose.” villanova law review 10, no. 4 (1965): 640-654. eberle, edward j. “the methodology of comparative law.” roger williams university school of law 16, no. 1 (2011): 51-72. elliot, e donald. “the evolutionary tradition in jurisprudence,” columbia law review 85, no. 38 (1985): 38-94. https://doi.org/10.2307/1122404 gaymarani, george pascoe. “an introduction to the ngarra law of arnhem land,” ntlj 1 (2011): 283-304. ginibi, ruby langford. "aboriginal traditional and customary laws" law text culture 1 (1994): 8-12. gutteridge, h c. “comparative law and the conflict of laws,” transactions of the grotius society (cambridge university press 29. (1943): 119-141. hoecke, mark van. “methodology of comparative legal research,” law and method, no. 12 (2015): 1-35. kelly, danial. “foundational sources and purposes of authority in madayin,” victoria university law and justice journal 4, no. 1 (2014): 33-45. https://doi.org/10.15209/vulj.v4i1.40 kelly, danial. “marriage law in madayin,” australian law journal 88, no. 8 (2014): 536-539. 194 australian law reform commission (ii), op.cit., 17-19. 195 helen hughes, mark hughes, and hudson, loc.cit. 196 hoecke op.cit., 16. eberle, loc.cit. https://doi.org/10.2307/1122404 https://doi.org/10.15209/vulj.v4i1.40 unresolved injustice: an examination of indigenous legal issues in australia rachael asher 168 kelly, danial. “the law of sorcery in madayin,” alj 94, no. 1 (2020): 1-6 (forthcoming). morris, jackie. “sea country – the croker island: commonwealth of australia v yarmirr,” indigenous law bulletin 5, no. 14 (2002): 18-20. nettheim, garth. “developing aboriginal rights,” victoria university of wellington law review 19, no. 4 (1989): 403-420. núñez, rodrigo míguez. “indigenous customary law in a civil law context: latin america and the chilean case,” rechtsgeschichte legal history, no. 24 (2016): 302-313. sackville, ronald. “legal protection of indigenous culture in australia,” cardozo journal of international and comparative law 11, no. 2 (2003): 711-745. schwartz, melanie. “redressing indigenous over-representation in the criminal justice system with justice reinvestment,” precedent (sydney, n.s.w.), no. 118 (2013): 38-41. simpson, gerry. “mabo, international law, terra nullius, and the stories of settlement: an unresolved jurisprudence,” melbourne university law review 19, no. 1 (1993): 195-210. terrill, leon. “the days of the failed collective: communal ownership, individual ownership and township leasing in aboriginal communities in the northern territory,” unsw law journal 32, no. 3 (2009): 814-851. wallis, rebecca and april chrzanowski. “addressing indigenous overrepresentation in the australian criminal justice system: some thoughts about the role of legal institutions as stewards of a complex system,” pandora’s box (2015): 37-47. whytock, christopher a. “legal origins, functionalism, and the future of comparative law,” brigham young university law review, no. 6 (2009): 1879-1905. wootten, hal. “occasional address,” unsw law review 18, no. 2 (1995): 232236. yang, kenny. “the rise of legal positivism in germany: a prelude to nazi arbitrariness?” western australian jurist 3, no. 9 (2012): 245-257. theses or dissertations foley, ashley m, “terra nullius: the aborigines in australia.” thesis., salve regina university, 2009 legal documents australia. aboriginal and torres strait islander act 2005 (cth). australia. aboriginal and torres strait islander heritage protection act 1984 (cth). australia. aboriginal land grant (jervis bay territory) act 1986 (cth). australia. aboriginal land (lake condah and framlingham forest) act 1987 (cth). australia. aboriginal land rights (northern territory) act 1976 (cth). udayana journal of law and culture vol. 4 no. 2, july 2020 169 australia. crimes act 1914 (cth). australia. criminal code act 1983 (nt). australia. environment protection and biodiversity conservation act 1999 (cth). australia. environment protection and biodiversity conservation regulations 2000 (cth). australia. evidence act 1995 (cth). australia. family law act 1975 (cth). australia. marriage act 1961 (cth). australia. native title act 1993 (cth). australia. protection of movable cultural heritage act 1986 (cth). other documents aboriginal and torres strait islander social justice commissioner, “native title report 2005 report, 2005,” https://www.humanrights.gov.au/sites/default/files/content/social_jus tice/nt_report/ntreport05/pdf/nativetitlereport2005.pdf. australian law reform commission, “connection to country: review of the native title act 1993 (cth) report no 126, april 2015,” https://www.alrc.gov.au/wpcontent/uploads/2019/08/alrc_126_final_report.pdf. australian law reform commission, “recognition of aboriginal customary laws report no 31, june 1986,” https://www.alrc.gov.au/wpcontent/uploads/2019/08/alrc31.pdf. helen hughes, mark hughes, and sara hudson, “private housing on indigenous lands report, 2010,” https://www.cis.org.au/app/uploads/2015/07/pm113.pdf. law reform commission of western australia (k trees), “contemporary issues facing customary law and the general legal system: roebourne – a case study (background paper no 6, 2004),” https://researchrepository.murdoch.edu.au/id/eprint/11948/1/contem porary_issues_facing....pdf. northern territory law reform committee, parliament of the northern territory, “committee of inquiry: aboriginal customary law (report, 2003),” https://justice.nt.gov.au/__data/assets/pdf_file/0011/238619/ntlrc_fin al_report.pdf. productivity commission for the steering committee for the review of government service provision, “overcoming indigenous disadvantage report, 2016,” https://www.pc.gov.au/research/ongoing/overcomingindigenous-disadvantage/2016/report-documents/oid-2016-overcomingindigenous-disadvantage-key-indicators-2016-report.pdf. unresolved injustice: an examination of indigenous legal issues in australia rachael asher 170 case law (commonwealth of australia v. yarmirr), judgment, 208 commonwealth law reports 1, 2001. (love v. commonwealth of australia; thoms v. commonwealth of australia), judgment, australian law journal reports 198, 2020. (mabo v. queensland (no 2)), judgment, 175 commonwealth law reports 1, 1992. (mehmet v. carter), judgment, nswsc 413, 2020. (milirrpum v. nabalco pty ltd), judgment, 17 federal law reports 141, 1971. (narrier v. state of western australia), judgment, federal court of australia 1519, 2016. (the queen v. wunungmurra), judgment, northern territory supreme court 24, 2009. (walker v. new south wales), judgment, 182 commonwealth law reports 45, 1994. (western australia v. ward), judgment, 213 commonwealth law reports 1, 2002. website content legal monitor worldwide, “i want the true law that brings peace and harmony: five questions for dianne biritjalawuy gondarra,” https://cdu-eduprimo.hosted.exlibrisgroup.com/permalink/f/7r169d/tn_gale_ofg38810 5271. macquarie dictionary, “definition of recognise,” https://www.macquariedictionary.com.au/features/word/search/?searc h_word_type=dictionary&word=recognise. melinda schroeder, “northern territory law handbook: aboriginal land, native title and heritage,” http://ntlawhandbook.org/foswiki/ntlawhbk/aboriginallandnativetitl eandheritage. e-issn 2549-0680 vol. 6, no. 1, january 2022, pp. 83-107 doi: https://doi.org/10.24843/ujlc.2022.v06.i01.p05 this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licenses/by/4.0/), 83 strategic development of indonesia’s outermost islands as an enhancement of national maritime defense and sovereignty muhammad dzaki fadhiil * faculty of law, university of indonesia, jakarta, indonesia arie afriansyah ** faculty of law, university of indonesia, jakarta, indonesia abstract the republic of indonesia as an archipelagic country has strategic territorial waters and a wealth of maritime resources. indonesia's strategic position creates an area that has the outermost islands in the national border area. the outer islands of indonesia are national natural resources to be utilized for their potential through the development of maritime resources. the huge potential of indonesia's territory demands the development of the outer islands through economic improvement, investment, and tourism. the responsibility of the state in maximizing the potential of indonesia's outermost region from a legal perspective is to maximize the determination of maritime boundaries in protecting the nation's sovereignty based on international law and national law. the article aims to analyze the projections of the indonesian government on the development of the outermost islands in strengthening maritime sovereignty as a form of anticipating violations of sovereignty. this paper argues that national defense maximizes and complements the implementation of the economy, investment, and tourism. thus, the problem that arises is how the indonesian government's policy towards the development of the outermost islands is based on the aspect of national defense in increasing the economic, investment and tourism potential in the outer islands of indonesia. the development of the outer islands is a holistic focus of the indonesian government in increasing economic potential, investment and tourism and ensuring national sovereignty through increasing national defense. keywords: economic development; law of the sea; small outermost islands; sovereignty. 1. introduction the archipelago country of indonesia, which has been recognized by the world as a maritime country surrounded by two oceans, is recognized for its natural marine wealth, especially the potential of islands which have maritime wealth. indonesian waters have archipelagic and inland waters covering 3,110,000 km2, an additional zone area of 270,000 km2, territorial sea area of 290,000 km2, continental shelf area of 2,800,000 km2, an area of the exclusive economic zone (eez) covering an area of 3,000,000 km2, and * email: muhammad.dzaki01@ui.ac.id * email/corresponding author: arie.afriansyah@ui.ac.id and arieafriansyah@gmail.com mailto:muhammad.dzaki01@ui.ac.id mailto:arie.afriansyah@ui.ac.id mailto:arieafriansyah@gmail.com strategic development of indonesia’s o utermost islands as an enhancement of national maritime defense and sovereignty muhammad dzaki fadhiil and arie afriansyah 84 the area of national waters as a whole is 6,400,000 km2.1 according to the vastness of the national maritime area, indonesia's outer small islands (pulau-pulau kecil terluar, abbreviated as ppkt) have a total area of 2,000 km2 including 42 populated ppkt and 69 uninhabited ppkt but not limited to ecosystem conditions and biological wealth.2 the condition of indonesian ppkt includes two aspects which are security and geographic ecology (bioregion).3 the security aspect shows that ppkt is experiencing damage due to sand mining (reclamation) which has a major impact on geographic points, especially on the coastline, smuggling of fuel, and illegal fishing. therefore, the conditions of ppkt in general include the limited activities of potential utilization of the area, the lack of development of biological ecosystems, limited accessibility, and low security and defense activities.4 ppkt is an island with an area of less than or equal to 2,000 km2 which has basic points of geographical coordinates connecting archipelagic sea baselines in accordance with international and national law.5 the national land agency asserts that ppkt of indonesia are small islands that have basic points of geographical coordinates that connect straight archipelagic baselines in accordance with international and national law.6 the straight archipelagic baselines based on the above regulations include a straight line connecting the outermost points on the low water line at the outermost point of the outermost island, one outermost dry coral point with the outermost point on the low water line at the outermost point of the outermost island, and the other adjacent dry corals.7 the utilization of ppkt as an enhancement of maritime defense makes it a strategic area of the global trade system.8 indonesia can take advantage from ppkt while still maintaining its national sovereignty by maximizing defense and security, without requiring reclamation activities as conducted by the chinese government which overrides international law and sparked 1 kementerian koordinator bidang kemaritiman dan investasi republik indonesia, “menko maritim luncurkan data rujukan wilayah kelautan indonesia,” https://maritim.go.id/menko-maritim-luncurkan-data-rujukan-wilayah-kelautanindonesia/. 2 deddy theohery, “pengelolaan pulau-pulau kecil terluar indonesia dalam perspektif hukum laut internasional,” jurnal ilmu hukum alethea 2, no. 1 (2018): 3. 3 metrini geopani simatupang, “analisis kebijakan pengelolaan 12 pulau kecil terluar indonesia (ditinjau dari proses sekuritisasi dan lingkungan hidup) = policy analysis for management of the 12th strategic outer – most islands of indonesia” (master’s thesis, department of enviromental science studies university of indonesia, 2009), 4. 4 suharyanto, “pulau-pulau kecil sebagai pusat pertumbuhan ekonomi di wilayah perbatasan indonesia: review aspek teknis, sosial dan ekonomi,” buletin jurnal ilmiah marina sosial ekonomi kelautan dan perikanan 6, no.1 (2020): 75. 5 minister of defense regulation no. 10 of 2010 concerning security operations allowance for tni and pns servants who serve in security operations on the outerest small islands and border areas, art. 1 (7). 6 minister of agrarian and spatial planning/head of the national land agency regulation no. 17 of 2016 concerning land management in coastal areas and small islands, art. 1 (4). 7 government regulation no. 38 of 2002 concerning list of geographic coordinates of the basic line points of the indonesian islands, art. 3. 8 bernhard limbong. poros maritim (jakarta: pustaka marharetha, 2015), 47. https://maritim.go.id/menko-maritim-luncurkan-data-rujukan-wilayah-kelautan-indonesia/ https://maritim.go.id/menko-maritim-luncurkan-data-rujukan-wilayah-kelautan-indonesia/ udayana journal of law and culture vol. 6 no. 1, january 2022 85 territorial disputes with member countries of the association of southeast asian nations (asean).9 this is in line with the global maritime fulcrum (poros maritim dunia, abbreviated as pmd) concept of the president of the republic of indonesia, mr. joko widodo. through the idea of pmd, indonesia can actually take advantage of its greatest power and become a world power in the maritime sector.10 indonesia's dreams and aspirations as a world power in the maritime sector require an adequate investment in infrastructure through stable and good economic growth that the pmd idea does not focus on maritime wealth, but includes maximizing national defense in national waters.11 several writings have discussed about the concept of indonesia's ppkt development. first, the discussion focuses on the structure of economic improvement has become the main focus of ppkt development which is oriented towards expanding employment, alleviating poverty, and increasing the growth of business.12 second, ppkt development which is viewed from the selection of an island as a ppkt development area through the use of a technology system through spatial and/or geographic aspec ts.13 third, investment aspects as priority for ppkt development through accelerating investment, especially through maritime potential.14 fourth, the tourism sector is a focus of the government through the development tourism which is included in the national medium term development plan agenda.15 some have noted that the potential of tourism, culture, and customs in the ppkt community is a priority for the development of ppkt. 16 among these publications, it appears that none has focused in observing the interrelations potential between the ppkt and sectors that may bring mutual benefits. this paper argues that the various focus of the government in the economic, investment, tourism and even technology sectors will be 9 tomohisa takei, “the new time and space, dimensions of a maritime defense strategy,” naval war college review 70, no. 4 (2017): 48. 10 mohammad rosyidin. indonesia: menuju kekuatan global abad 21 (jakarta: pt. elex media komputindo, 2019), 3. 11 natalie sambhi, “jokowi’s global maritime axis: smooth sailing or rocky seas ahead,” security challenges 11, no. 2 (2015): 43. 12 ibid, 76. 13 andi parlindungan, “pemilihan pulau-pulau kecil terluar (ppkt) untuk pembangunan wilayah pertahanan menggunakan spatial decision support system (sdss) studi kasus: ppkt di kepulauan tanimbar, provinsi maluku,” jurnal keamanan maritim 15, no. 1 (2019): 17. 14 badan pengembangan infrastruktur wilayah kementerian pekerjaan umum dan perumahan rakyat, “kementerian pupr integrasikan program-program prioritas untuk mendukung kawasan perdesaan, kawasan perbatasan dan ppkt,” https://bpiw.pu.go.id/article/detail/kementerian-pupr-integrasikan-program-programprioritas-untuk-mendukung-kawasan-perdesaan-kawasan-perbatasan-dan-ppkt. 15 kementerian kelautan dan perikanan republik indonesia, “bahas pengembangan ppkt, kkp sampaikan progress penyusunan rz ksnt dan hasil sertifikasi ppkt ,” https://kkp.go.id/djprl/prl/artikel/16641-bahas-pengembangan-ppkt-kkp-sampaikanprogress-penyusunan-rz-ksnt-dan-hasil-sertfikitasi-ppkt. 16 prima farid budianto, “implementasi pengembangan pari wisata di pulau-pulau kecil terhadap masyarakat pesisir desa lihunu, kecamatan likupang, kabupaten minahasa utara, provinsi sulawesi utara,” jurnal ecsofim 1, no.1 (2013): 6. https://bpiw.pu.go.id/article/detail/kementerian-pupr-integrasikan-program-program-prioritas-untuk-mendukung-kawasan-perdesaan-kawasan-perbatasan-dan-ppkt https://bpiw.pu.go.id/article/detail/kementerian-pupr-integrasikan-program-program-prioritas-untuk-mendukung-kawasan-perdesaan-kawasan-perbatasan-dan-ppkt https://kkp.go.id/djprl/prl/artikel/16641-bahas-pengembangan-ppkt-kkp-sampaikan-progress-penyusunan-rz-ksnt-dan-hasil-sertfikitasi-ppkt https://kkp.go.id/djprl/prl/artikel/16641-bahas-pengembangan-ppkt-kkp-sampaikan-progress-penyusunan-rz-ksnt-dan-hasil-sertfikitasi-ppkt strategic development of indonesia’s o utermost islands as an enhancement of national maritime defense and sovereignty muhammad dzaki fadhiil and arie afriansyah 86 maximally implemented by the government and other stakeholders through the development of defense and security, including the development of ppkt by referring to the minimum essential force (mef). this article systematically examines indonesia’s national defense and security policies through the development of ppkt in supporting economic, investment and tourism potential to increase national sovereignty. the first part will examine the issue of indonesia's maritime sovereignty based on national territorial data. the second part will examine indonesia's maritime defense strategy and examine the aspects of the utilization of ppkt through defense and security in supporting economic, investment and tourism potential. the third part will discuss about the development of ppkt as a strategy to increase national sovereignty through case studies of ppkt development, threats that arise against sovereignty in the ppkt area, and maritime border agreements in the national border area as a measure of international legality. the last section will be completed with conclusions to conclude the discussion of this article. 2. result and analysis 2.1. territorial w aters and state sovereignty of indonesia the territory of indonesia is an element of the country which covers archipelagic waters, inland waters, territorial seas, and land.17 the territory of the country has an aspect of a close relationship to sovereignty. sovereignty has the same milestone as the history of the birth of sovereignty in modern international law. indonesian waters become a major force in the maritime sector that can be combined with state sovereignty and articulated as maritime territory. the asean countries, which are directly adjacent to national waters, safeguards the maritime region of southeast asia is dominated by fishing boat piracy, illegal fishing, and terrorism, which are a concern for asean as an organization of the southeast asian nations ’ union.18 as a sovereign country, indonesia has sovereign rights in its jurisdiction, as well as international law and applicable laws and regulations. as the law on state territory has stipulated in detail the national territorial waters which include indonesian national jurisdiction including the eez, the continental shelf, and additional zones. reaffirmed through the united nations convention on the law of the sea 1982 (unclos 1982), the continental shelf extends along the land area to the edge of the outer boundary and reaches 200 nautical miles measured from the baseline of the territorial sea and the outer edge does not extend.19 sovereignty over archipelagic states is established through unclos 1982 that archipelagic states are countries that as a whole consist of one to more 17 law no. 43 of 2008 concerning the territory of the state, art. 1. 18 carolin liss, “new actors and the state: addressing maritime security threats in southeast asia,” contemporary southeast asia 35, no. 2 (2013): 141-142. 19 bjarni mar magnusson, “outer continental shelf boundary agreements,” the international and comparative law quarterly 62, no. 2 (2013): 346. udayana journal of law and culture vol. 6 no. 1, january 2022 87 islands which include other islands, and that archipelagic state through its sovereignty covers up to the ppkt.20 as unclos 1982 sti pulates, the maritime zone covering the territorial sea, eez, archipelagic waters, and the continental shelf is under the jurisdiction of the state.21 the provisions on the continental shelf are strengthened through the law on the continental shelf which confirms that the national continental shelf has an area depth of up to 200 meters.22 sovereignty is closely related to the territory, through the population and capacity that is subject to state power becomes an obstacle if state sovereignty is not maintained.23 as in unclos 1982, sovereignty includes air space and the seabed and the layers beneath it.24 as unclos 1982 stipulates in detail the width of the territorial sea, the width of the sea cannot exceed 12 nautical miles based on measurements through baselines.25 an additional zone has been set up for 24 miles calculated from the baseline over the width of the territorial sea.26 in addition to the additional zone, the eez is set to be no more than 200 nautical miles calculated from baselines over the width of the territorial sea.27 the continental shelf is also stipulated not to exceed 350 nautical miles from the baseline, without exceeding 100 nautical miles based on the depth boundary line of 2.500, the coastal state is obliged to establish a limit to the outer line of the continental shelf beyond 200 nautical miles above the base line.28 unclos 1982 regulates in detail the settlement of disputes for member states in section 15 of the convention.29 a strong vision is needed for indonesia to build an ideal border area in the future.30 2.2. utilization of ppkt as a national defense and security strategy in maximizing economic, investment, and tourism the development of the international world in the defense industry sector has become a particular concern. indonesian diplomacy carries out various concepts of maritime defense diplomacy which aim to strengthen security stability and achieve the objectives of defense diplomacy through 20 united nations convention on the law of the sea, art. 46. 21 dina sunyowati. integrated coastal management: kajian hukum pengelolaan wilayah pesisir berkelanjutan di indonesia (surabaya: airlangga university press, 2020), 52. 22 law no. 1 of 1973 concerning the continental shelf, art. 1. 23 paul williams, “what makes a state? territory,” american society of international law 106, no. 2 (2012): 449. 24 united nations convention on the law of the sea, art. 2. 25 ibid, art. 3. 26 ibid, art. 33. 27 ibid, art. 57. 28 ibid, art. 76. 29 natalie klein, “the effectiveness of the unclos dispute settlement regime: reaching for the stars?,” cambridge university press on behalf of the american society of international law 108, (2014): 359. 30 humphrey wangke. kerjasama indonesia-malaysia dalam pengelolaan perbatasan di kalimantan (jakarta: yayasan pustaka obor indonesia, 2017), 61. strategic development of indonesia’s o utermost islands as an enhancement of national maritime defense and sovereignty muhammad dzaki fadhiil and arie afriansyah 88 the optimization of the three instruments, namely; law, diplomacy, and military.31 the concept of strategy through diplomacy is considered to have good effectiveness, considering that the problem of disputes over sovereign territory is a "crime" for maritime security due to different interpretations of the unclos 1982. 32 given the idea of pmd which was instructed by president joko widodo, it is a vision for the country to build indonesia's maritime wealth through national maritime defense to achieve prosperity, dignity, and unity.33 indonesia's strategy in maximizing ppkt development can be reviewed based on several supporting strategies, including the following:34 2.2.1. strengthening international maritime cooperation strengthening diplomatic relations in the field of defense and security through maritime policies is the key for a country in maximizing national defense and security. an example is the collaboration between indonesia and india through the regional comprehensive economic partnership in 2019 which is a strategic partner in the region and globally through the joint task force to maximize two main components, namely the development of connectivity and cooperation between the aceh and andaman-nicobar regions.35 maritime cooperation has been carried out by indonesia in maximizing the international geopolitical vision related to the idea of the world maritime axis through the indian ocean rim association (iora), the asean maritime forum (amf), and the expanded asean maritime forum (eamf). through comprehensive international maritime cooperation, it is hoped that it can deepen the integration and stimulation of the national economy towards economic growth in supporting the utilization and development of national ppkt. 36 2.2.2. maximizing national defense and security 31 kementerian luar negeri republik indonesia, “diplomasi pertahanan maritim: strategi, tantangan, dan prospek,” https://kemlu.go.id/download/l3npdgvzl3b1c2f0l0rvy3vtzw50cy9lywppyw4lmjbcu fbll1azsyuyme9jlu1vtfrjtefurvjbtc8xnv9eaxbsb21hc2lfugvydgfoyw5hbl9nyx jpdgltlnbkzg==. 32 sheldon simon, “conflict and diplomacy in the south china sea ,” asian survey, 52, no. 6 (2012): 997. 33 dickry rizanny nurdiansyah. strategi dan pertahanan maritim nusantara (makassar: cv. nas media pustaka, 2020), 11. 34 darmawan. menyibak gelombang menuju negara maritim: kajian strategis mewujdukan poros maritim dunia (jakarta: yayasan pustaka obor indonesia, 2018), 5. 35 kementerian luar negeri republik indonesia, “indonesia – india dorong kerja sama ekonomi dan maritim,” https://kemlu.go.id/portal/id/read/579/berita/indonesiaindia-dorong-kerja-sama-ekonomi-dan-maritim. 36 annamaria artner, “role of indonesia in the evolution of asean,” the journal of east asian affairs 31, no. 1 (2017): 11. https://kemlu.go.id/download/l3npdgvzl3b1c2f0l0rvy3vtzw50cy9lywppyw4lmjbcufbll1azsyuyme9jlu1vtfrjtefurvjbtc8xnv9eaxbsb21hc2lfugvydgfoyw5hbl9nyxjpdgltlnbkzg== https://kemlu.go.id/download/l3npdgvzl3b1c2f0l0rvy3vtzw50cy9lywppyw4lmjbcufbll1azsyuyme9jlu1vtfrjtefurvjbtc8xnv9eaxbsb21hc2lfugvydgfoyw5hbl9nyxjpdgltlnbkzg== https://kemlu.go.id/download/l3npdgvzl3b1c2f0l0rvy3vtzw50cy9lywppyw4lmjbcufbll1azsyuyme9jlu1vtfrjtefurvjbtc8xnv9eaxbsb21hc2lfugvydgfoyw5hbl9nyxjpdgltlnbkzg== https://kemlu.go.id/portal/id/read/579/berita/indonesia-india-dorong-kerja-sama-ekonomi-dan-maritim https://kemlu.go.id/portal/id/read/579/berita/indonesia-india-dorong-kerja-sama-ekonomi-dan-maritim udayana journal of law and culture vol. 6 no. 1, january 2022 89 indonesia as a maritime country has a high chance of experiencing violations against its territorial waters or sovereignty given indonesia's strategic position. transnational crime will be a big challenge for the indonesian government to be overcame through the military enhancement of the indonesian national army (tentara nasional indonesia, abbreviated as tni), the national marine security agency, and the ministry of maritime affairs and fisheries, as well as the national agency for border management (bnpp). utilization of state defense in national marine security is maximally integrated through supervision of international sea lanes that have the potential to cause violations of national waters. therefore, the integration of human resources through the placement of apparatus to maintain the existence of state defense in the ppkt area is a form of implementation of the ppkt management. 2.2.3. economic and investment acceleration through the economic aspect, a country maximizes strategic plans in the maritime sector such as the development of adequate marine transportation as an economic pathway to accelerate the rate of economic growth in indonesia's coastal areas; the utilization of maritime potential to become the economic center of world trade ; and the succession of the “sea highway” plan to maximize shipping connectivity for the nation's economic growth. ppkt management cannot be managed by the government alone, it takes an effective aspect through cooperation, either through state -owned enterprises or private business entities in the form of investment.37 through the establishment of the ministry of investment as an agency that plays a role in maximizing economic and investment acceleration, it will be a new challenge for the government to maximize local and foreign investment. the development of ppkt is of great benefit in terms of increasing the economic and investment to maximize tourism potential in ppkt which is an advantage for residents.38 the international community recognizes that international territorial boundary tensions and adjustments are needed between coastal and non coastal states under the unclos 1982.39 this is because marine resources in each country have borders between other countries, sovereignty claims will be made regardless of the eez restrictions and the boundaries of a country's continental shelf. national defense capability is carried out by strengthening the naval fleet that can be classified such as warships, 37 sekretariat kabinet republik indonesia, “optimalisasi pengelolaan pulau-pulau kecil terluar (ppkt),” https://setkab.go.id/optimalisasi-pengelolaan-pulau-pulau-kecilterluar-ppkt/. 38 diah yustinaningrum, “pengembangan wisata bahari di taman wisata perairan pulau pieh dan laut sekitarnya,” jurnal agrika 11, no. 1 (2017): 100. 39 lee whiejin, “the law of the sea regime in northeast asia: issues and the way forward,” the journal of east asian affairs 32, no. 1 (2018): 47. https://setkab.go.id/optimalisasi-pengelolaan-pulau-pulau-kecil-terluar-ppkt/ https://setkab.go.id/optimalisasi-pengelolaan-pulau-pulau-kecil-terluar-ppkt/ strategic development of indonesia’s o utermost islands as an enhancement of national maritime defense and sovereignty muhammad dzaki fadhiil and arie afriansyah 90 submarines, maritime area guarding activities through routine regional patrols.40 the structure of indonesia's maritime defense strategy covers various complementary aspects including defense and security, international relations through diplomacy, economy through trade, investment, tourism, and the effectiveness of pmd ideas. through the effectiveness of pmd, the marine sector will play a centric role in the entire national archipelago and open up large investment opportunities for foreign and domestic investors to invest in the maritime sector and provide benefits in maximizing ppkt.41 2.3. defense and security development of ppkt as a strategy to increase the sovereignty of indonesia indonesia has a strategic area and is directly adjacent to various neighboring countries. indonesia has a national distribution of ppkt totaling 111 islands.42 amongst those islands, there are at least 12 islands that have special attention related to security and defense in terms of the coordinates of the two islands.43 there are several islands that have concerns over their border areas, including dana island, batek island, brass island, fanildo island, fani island, marampit island, marore island, miangas island, sekatung island, nipa island, beerhala island, and rondo island. in this case, the ppkt development strategy requires the front line to safeguard and defend the sovereignty and integrity of the country.44 the legal airspace issue included the management of flight information region (fir) on natuna island, riau archipelago province by singapore. geographically, the riau archipelago has a position that is close and adjacent to neighboring countries. fir is an airspace of defined dimensions within which flight information service and alerting service are provided.45 the islands of natuna regency are the outermost islands of the national strategic, especially the boundaries adjacent to the south china sea (scs) and several neighboring countries, namely vietnam and cambodia. the security of natuna island is integrated by law enforcement units, namely the tni and the indonesian national police (kepolisian negara republik indonesia, abbreviated as polri) in maximizing national defense based on securing the maritime and coastal areas of the archipelago. 40 christian le miere. maritime diplomacy in the 21st century: drivers and challenges (new york: routledge, 2014), 3-5. 41 kementerian koordinator bidang kemaritiman dan investasi republik indonesia, “indonesia membuka peluang investasi bagi para investor dunia,” https://maritim.go.id/indonesia-membuka-peluang-investasi-bagi-para-investor-dunia/. 42 kementerian kelautan dan perikanan republik indonesia, “111 pulau-pulau kecil terluar (ppkt) di indonesia,” https://kkp.go.id/djprl/p4k/infografis-detail/5794-111pulau-pulau-kecil-terluar-ppkt-di-indonesia. 43 rambu asana, “kebijakan pertahanan indonesia terhadap pulau-pulau kecil terluar pada masa pemerintahan jokowi,” jurnal cakrawala 6, no. 1 (2017): 37. 44 tedjo edhy purdijatno. mengawal perbatasan negara maritim (jakarta: grasindo, 2010), 167. 45 annex 2 to the convention on international civil aviation. https://maritim.go.id/indonesia-membuka-peluang-investasi-bagi-para-investor-dunia/ https://kkp.go.id/djprl/p4k/infografis-detail/5794-111-pulau-pulau-kecil-terluar-ppkt-di-indonesia https://kkp.go.id/djprl/p4k/infografis-detail/5794-111-pulau-pulau-kecil-terluar-ppkt-di-indonesia udayana journal of law and culture vol. 6 no. 1, january 2022 91 natuna island, which is part of the riau archipelago, has fir as an air traffic information service which is controlled by singapore. this is contrary to the concept of sovereignty as a state’s highest power, where applicable space s are limited by the boundaries of the country's territory.46 as singapore controls fir over indonesian airspace, the indonesian government is concerned about the intervention of indonesia's exclusive rights to regulate and control its airspace. sovereignty is an exclusive right for every country over its airspace and territorial territory.47 the management of indonesia's fir given to singapore not only has a positive impact on the fulfillment of international flight safety, but also in indonesian airspace.48 beside natuna island, there is another legal issue related to management of strategic project for the development of the outer islands, namely the nipa tank storage terminal, which is a defense -based economic area on nipa island, riau archipelago.49 the government's focus on the utilization of the nipa island area as a conservation area is in line with the purpose of using ppkt, namely environmental preservation based on statutory regulations regarding the utilization of ppkt. 50 nipa island is an example of defense development on the outer islands of indonesia and worries will disappear because of the reclamation project by singapore .51 apart from singapore, a growing maritime issue is a border issue of the outmost island in eastern indonesia, which is adjacent to australia. as australia's territory is located 200 nautical miles from the indonesian border, particularly between christmas island and java island, ashmore island and roti island and across the torres strait which is adjoining indonesian territory.52 the maritime boundary between australia and indonesia is the longest maritime boundary area in the world and indonesia is a major strategic partner in the indo-pacific region, thus a maritime strategy is needed to avoid maritime border territorial disputes.53 seeing these consequences, australia is believed to have a strategic interest through a maritime approach based on the history of australia's 46 mochtar kusumaatmadja. pengantar hukum internasional (bandung: pt. alumni, 2015), 17. 47 convention on international civil aviation, art. 1. 48 suhartono, “singapore region realignment flight information in the making of state sovereign enforcement in national air area,” jurnal strategi pertahanan udara 5, no. 1 (2019): 125. 49 kementerian pertahanan republik indonesia, “pulau nipa jadi model percontohan pembangunan ekonomi pulau terluar berbasis pertahanan,” https://www.kemhan.go.id/2019/08/20/pulau-nipa-jadi-model-percontohanpembangunan-ekonomi-pulau-terluar-berbasis-pertahanan.html. 50 government regulation no. 62 of 2010 concerning utilization of outermost small islands, art. 8. 51 endang adiyanto, “tinjauan hukum dan kebijakan pengelolaan pulau-pulau kecil terluar indonesia (studi kasus pulau nipa),” buletin ekonomi perikanan 7, no. 2 (2007): 52. 52 sam bateman and quentin hanich, “maritime security issues in an arc of instability and opportunity,” institute for regional security 9, no. 4 (2013): 88. 53 ibid. https://www.kemhan.go.id/2019/08/20/pulau-nipa-jadi-model-percontohan-pembangunan-ekonomi-pulau-terluar-berbasis-pertahanan.html https://www.kemhan.go.id/2019/08/20/pulau-nipa-jadi-model-percontohan-pembangunan-ekonomi-pulau-terluar-berbasis-pertahanan.html strategic development of indonesia’s o utermost islands as an enhancement of national maritime defense and sovereignty muhammad dzaki fadhiil and arie afriansyah 92 interests, including the establishment of military bases in the pacific islands.54 the position of the malacca strait, which is indonesia's geographic location between two oceans, namely the indian ocean and the pacific, is the key for singapore and india to fight china's developing maritime interests in the indian ocean to control the malacca strait.55 the problem of regional waters has become a crucial issue of national importance, as in 2001 data there have been 61 cases in the field of transnational crime and theft of natural resources in the pacific region, particularly southeast asia, which are directly adjacent to indonesia.56 the defense and security of infrastructure in the coastal areas of the archipelago are of particular concern to the government, because violations of sovereignty of the national territory.57 territorial disputes in the scs when china does not respect international norms and overrides international law through unclos 1982. 58 threats that arise against violations of sovereignty that threaten economic development, investment and tourism in the ppkt area are not only against inter-state forces through military fleets, but nontraditional forces can also threaten maritime power and state sovereignty, including piracy, maritime terrorism, and smuggling.59 in the international environment, an archipelago country like indonesia has become a strategic discourse related to the international development because of its strategic position.60 the security environment in the asia pacific region is prone to territorial violations, because it requires an appropriate implementation of unclos 1982 to minimize maritime claims and international maritime crimes.61 threats or attacks that arise against violations of sovereignty that threaten economic development, investment, and tourism in the ppkt area are not only against inter -state forces through military fleets, but non-traditional forces can threaten maritime power and state sovereignty.62 54 institute for regional security, “how does the ‘pacific’ fit into the ‘indo-pacific’? the changing geopolitics of the pacific islands,” security challenges 16, no. 1 (2020): 4. 55 david brewster, “the relationship between india and indonesia: an evolving security partnership?,” asian survey 51, no. 2 (2011): 228. 56 wahyu saronto. intelijen: teori intelijen dan pembangunan jaringan (yogyakarta: andi yogyakarta, 2020), 170. 57 a.b. susanto. manajemen bela negara: pendekatan modern menjadi bangsa yang besar (jakarta: pt. kompas media nusantara, 2020), 10. 58 tomohisa takei, op.cit., 48. 59 kyunghan lim, “non traditional maritime security threats in northeast asia: implication for regional cooperation,” journal of international and area studies 22, no. 2 (2015): 135. 60 jenny grote, “the changing tides of small island states discourse – a historical overview of the apperance of small island states in the international arena,” verfassung und recht in ubersee / law and politics in africa, asia and latin america 43, no. 2 (2010): 164. 61 sam bateman, “solving the “wicked problems” of maritime security: are regional forums up to the task?,” contemporary southeast asia 33, no. 10 (2011): 3. 62 kyunghan lim, loc.cit. udayana journal of law and culture vol. 6 no. 1, january 2022 93 for the sake of safeguarding the national maritime area from threats, violations and competition in international waters, there are several border agreements related to the national ppkt area that are oriented towards the indonesian eez, including:63 a. first, maritime border agreement between indonesia and australia, including the continental shelf agreement in 1971 which was ratified by presidential decree no. 42 of 1971. this agreement focuses on the arafuru sea boundary that connects the southern coast of papua and the northern coast of papua. in the southern region of the arafuru sea, to be precise in the tanimbar islands and south of timor and roti islands, an additional border agreement was implemented in 1972 and was ratified by presidential decree no. 66 of 1972. meanwhile, java island especially borders christmas island and ashmore island, a border agreement has been agreed in 1997 regarding the continental shelf and eez between two countries. b. second, maritime boundary agreement between indonesia and philippine in 2011, through which the two countries agreed on the eez boundary between them, namely the waters of sulawesi and the waters of the philippines. however, there are still some parts of the line that have not reached an agreement on these maritime borders. c. third, maritime agreement between indonesia and india. two agreements between the two countries are the continental shelf boundary agreement which was agreed in 1974 and ratified by presidential decree no. 51 of 1974 and the continental shelf agreement in 1977 which was ratified by presidential decree no. 26 of 1977. however, indonesia and india have not reached an agreement regarding the eez boundaries of each country. d. fourth, maritime boundary agreement between indonesia and malaysia. this agreement has resulted in an agreement in the malacca strait, scs to sulawesi waters in east kalimantan. the agreement reached on the maritime area that includes the continental shelf which was agreed upon in 1969, and the maritime boundary for the strait of malacca which was agreed in 1970. however, the eez territorial boundary agreement of each country is still in the negotiation stage due to some differences in the interpretation between the eez and the respective continental shelf. e. fifth, maritime agreements between indonesia and palau. until now, the two countries have not reached an agreement. various bilateral and trilateral meetings have been held by the two countries to discuss indonesia's eez claims which are considered to have an overlap with palau's eez. therefore, the two countries 63 kementerian pertahanan republik indonesia, “perbatasan maritim,” https://www.kemhan.go.id/itjen/2015/04/13/perbatasan-maritim.html. https://www.kemhan.go.id/itjen/2015/04/13/perbatasan-maritim.html strategic development of indonesia’s o utermost islands as an enhancement of national maritime defense and sovereignty muhammad dzaki fadhiil and arie afriansyah 94 need to try to minimize different views on the determination of the eez boundary line to reach a balanced and fair agreement. f. sixth, maritime border agreement between indonesia and papua new guinea. this agreement has been reached between parties regarding the determination of certain boundary lines between the two countries, which include the water boundary that focuses on the continental shelf and the delineation of the cise dam which focuses on shipping lanes. this agreement was agreed in 1973 and ratified into law no. 6 of 1973. g. seventh, maritime boundary agreement between indonesia and singapore. this agreement was agreed by each country through the division of a regional agreement, namely the western region that was agreed in 2009 and ratified by law no. 4 of 2010, and the central region which was agreed and signed in 1973. however, the eastern region has not reached an agreement until now. the eastern region, which is still in the negotiation process of the two countries, includes the batam and changi territories as well as the territorial waters of singapore which adjoin the singapore strait. h. eight, maritime boundary agreement between indonesia and vietnam. this agreement focuses on the determination of the continental shelf of each country and has reached an agreement in 2003 and was ratified into law no.18 of 2007. however, the arrangements for the eez of the two countries are still in the negotiation process due to different views regarding the eez boundary lines. besides the arrangement or agreement through the indonesian maritime border agreement, the national ppkt development plan as the basis for national defense has several national laws that regulate the rules of indonesia's sovereign territory as a foundation and juridical basis in supporting the strategy of utilizing indonesian ppkt, including: a. the 1945 constitution of the republic of indonesia indonesia as an archipelagic country has separate territories based on national territorial boundaries, as article 25 a of the 1945 constitution has detailed the boundaries of indonesia's national sovereignty, which are characteristic of the archipelago.64 the constitution is an affirmation of positive national law regarding state sovereignty and regulates national geographical boundaries and the right for indonesia to utilize the territory of the national state through law no. 43 of 2008 concerning the territory of the state. the establishment of law no. 43 of 2008 marks the constitutionality of the state in determining national jurisdiction with other countries. in line with article 25a of the 1945 constitution, in article 1 of the law. no. 43 of 2008 concerning state territory stipulates the territory of the state as an element of the state which is a unitary area of land, 64 the 1945 constitution of the republic of indonesia, art. 25 a. udayana journal of law and culture vol. 6 no. 1, january 2022 95 waters, archipelagic waters, and the territorial sea along with the seabed and subsoil.65 the regulation of national sovereignty will provide legal certainty over the scope of the state territory which includes the regulation of the national territory including the authority to manage state territory and sovereign rights based on the approach to welfare, security, and environmental sustainability. in terms of maximizing national sovereignty, article 18a (1) and (2) of the 1945 constitution stipulates the authority for the central and regional governments to regulate and utilize the potential of ppkt's natural wealth with due observance of the principles of justice and the benefit of natural resources utilization.66 b. law of the republic of indonesia no. 43 of 2008 concerning state territory this regulation is indonesia's constitutional implementation in regulating territorial boundaries, sovereign boundaries, and national sovereign rights. national boundaries include eezs, continental shelf, and additional zones over which states have sovereign rights and national and international powers. indonesia's sovereign rights cover the land surface and the land below it to the interior which is not limited to the air space above the land surface.67 thus, the state territory law constitutionally stipulates that indonesia has sovereignty in archipelagic waters, inland waters, and territorial seas and has juridical rights in additional zones with a width not exceeding 24 nautical miles from the baseline, as well as sovereign rights which include continental shelf especially the seabed and subsoil. the authority to manage state territory based on sovereign rights includes determining policies and utilization of state territory, establishing state boundaries in ppkt, and carrying out supervision in sovereign territory and national jurisdiction. therefore, this regulation optimizes the state's authority in managing and controlling the sea area and accelerating the boundaries of indonesia's outermost regions including the outer islands. c. law of the republic of indonesia no. 3 of 2002 concerning national defense this regulation is the philosophy of the integrity and security of the indonesian nation that regulates national defense as state sovereignty, the territory of the indonesian state, and the safety of the nation from all forms of threats and disturbances. this regulation covers national defense, state defense system, defense administration, and state defense management.68 national defense aims to safeguard and protect the country, including the ppkt area, which is indonesia's sovereign territory. national defense in the ppkt area is maximized 65 law no. 43 of 2008 concerning state territory, art. 1. 66 the 1945 constitution of the republic of indonesia, art. 18 (1) & (2). 67 ibid, art. 5. 68 law no. 2 of 2002 concerning state defense, art. 1. strategic development of indonesia’s o utermost islands as an enhancement of national maritime defense and sovereignty muhammad dzaki fadhiil and arie afriansyah 96 through the fulfillment of the main components and supporting components in the national defense and security. meanwhile, the implementation of state defense in the ppkt is carried out through the development of border areas through a state defense and security approach including the determination of priority areas for defense in the ppkt area, increased supervision, guarding, and law enforcement in the ppkt, construction of military infrastructure, strengthening of the functions and authorities of the bnpp, and increasing the acceleration of border negotiations in ppkt areas.69 thus, the development of military-based border areas aims to protect and maintain state sovereignty in defending the territory of the state which is a strong defense unit in the face of the threat of territorial violations. d. law of the republic of indonesia no.17 of 1985 concerning ratification of the united nations convention on the law of the sea 1982 this regulation is the endorsement of the unclos 1982, which regulates the legal regimes of the archipelagic state in detail and has legally become indonesia's national law.70 this regulation regulates the designation of territorial seas, additional zones, eez, international shipping through the straits, the continental shelf, high seas, sea and island regimes, and other provisions of the law of the sea. the eez part of a country requires regular supervision and patrols to maintain its sovereignty and prevent illegal activities. this regulation is very important in determining the basic point of the indonesian archipelagic baseline. besides, it is relevant for the national outer islands and coastal areas in measuring and determining the boundaries of national waters. e. law of the republic of indonesia no. 6 of 1996 concerning indonesian waters this regulation affirms national sovereignty in the territorial waters covering archipelagic waters, inland waters, and territorial seas including land, inland waters, and the seabed beneath them including maritime wealth and territorial sea airspace. this regulation regulates in detail the national territorial waters and islands or parts of land and islands in indonesia. this regulation is quite important for the indonesian government in regulating and supervising the passage of foreign ships which are endangering the national sovereignty, order and security of indonesia, especially for carrying out prohibited activities in the territorial sea and indonesian archipelagic waters. thus, the enforcement of sovereignty and law in indonesian waters is 69 minister of defense regulation no. 19 of 2015 concerning operating policy state defense in 2015-2019, annex. 70 law no. 17 of 1985 concerning ratification of the united nations convention on the law of the sea 1982, art. 1. udayana journal of law and culture vol. 6 no. 1, january 2022 97 guaranteed, especially the jurisdiction of law enforcement in the territorial sea and the indonesian archipelago. f. government regulation of the republic of indonesia no. 38 of 2002 concerning list of geographical coordinates of the points of the base line of the indonesian archipelago the regulations regulate in detail the national geographic conditions, especially the straight baselines of the national archipelago which will connect the outermost points of the national outer islands and regulate in detail the baselines’ length of the islands and waters that are positioned on archipelagic baselines and cannot be separated from the configuration of the archipelago.71 this regulation regulates national waters connecting the sides of national waters to archipelagic baselines and straight lines connecting national archipelago lines and determining the width of the territorial sea. the function of this regulation is to accelerate the realization of sovereignty through the settlement of national boundaries, the realization of environmental sustainability through the application of the outermost island boundaries as protected areas, and the realization of community welfare through increased maritime services. g. government regulation of the republic of indonesia no. 62 of 2010 concerning utilization of small outermost islands this regulation directly affirms that the utilization of ppkt is an activity of exploiting the potential resources of the ppkt and the surrounding waters with the condition that the utilization is no more than 12 nautical miles from the coastline with one main objective of protecting and maintaining national sovereignty.72 based on this regulation, allowing the utilization of indonesian ppkt can be utilized on three bases, namely community welfare, environmental preservation, and defense and security.73 this regulation maximizes the role and function of the utilization of the outermost islands as the basis for developing sovereignty through optimal and integrated management of coastal areas. h. presidential regulation of the republic of indonesia no. 78 of 2005 concerning management of small outermost islands this regulation confirms that the management of ppkt is an integrated activity in developing and utilizing ppkt with one main objective, namely maintaining national sovereignty.74 it was reiterated that the management of ppkt covers security and defense.75 the management of indonesia’s ppkt will be coordinated through the 71 government regulation no. 38 of 2002 concerning list geographical coordinates of the points of the base line of the indonesian archipelago, art. 2. 72 government regulation no. 62 of 2010 concerning utilization of outermost small islands, art. 1. 73 ibid, art. 5. 74 presidential regulation no. 78 of 2005 concerning management of small outermost islands, art. 1. 75 ibid, art. 4. strategic development of indonesia’s o utermost islands as an enhancement of national maritime defense and sovereignty muhammad dzaki fadhiil and arie afriansyah 98 ppkt management team which will coordinate and be accountable to the president chaired by the coordinating minister for political, legal and security affairs and the ranks of the relevant ministr ies and the tni, polri and state intelligence agency.76 the 2015-2019 bnpp strategic plan establishes various bnpp strategies and policies including the management of western borders, maritime and air borders, cross-border management and utilization, land border area development, and maritime border area development.77 the strategic plan will be complemented by establishing policies, programs, regulations, control, monitoring, evaluation, reporting, and law enforcement related to the bnpp strategic plan.78 the importance of the above regulations is to maximize compliance with the legal basis for the determination and management of the outer islands of indonesia. the legal aspect is the main basis for how state boundaries are formed. the management of the oute rmost islands is maximized through the integration of the functions and roles of regulations to policy makers in carrying out the management of the outermost islands. through a total of 111 ppkts in indonesia which can be utilized for national interests in the fields of economy, national defense and security, it is necessary to study several supporting aspects including law, economy, and national defense and security. the following is an assessment that is needed by indonesia on the utilization and development of national ppkt to increase national sovereignty: 2.3.1. legal aspect legal issues in ppkt are the main focus of the government in liberating the condition of the people who are trapped in the inhibition of the use of ppkt. therefore, legal issues in ppkt have an influence on the effectiveness of ppkt management in developing coastal areas, increasing security and the ability to guard border areas. the following are the legal problems in the ppkt area:79 1. conflicts over coastal area management permits and ppkt related to management permits and concession permits as referred to in law no. 1 of 2014 concerning amendments to law no. 27 of 2007; where it is difficult for the ppkt community and entrepreneurs to obtain business permits because the permit processing is carried out by two different institutions which allows disruption of the bureaucracy and corruption. thus, law 76 ibid, art. 6. 77 regulation of the head of the national agency for border management no. 2 of 2015 concerning strategic plan of the national border management agency year 2015 2019, art. 1-6. 78 ibid. 79 ibid, 30. udayana journal of law and culture vol. 6 no. 1, january 2022 99 enforcement is needed in maximizing regional management permits, eliminating corrupt practices, and facilitating licensing bureaucracy. 2. coastal areas and small islands (wilayah pesisir dan pulau-pulau kecil, abbreviated as wp3k) management conflicts regarding spatial planning and zoning plans for ppkt areas as stipulated in the law no. 26 of 2007 concerning spatial planning by law no. 1 of 2014 concerning amendments to law no. 27 of 2007, where the conflict happens over the different management of sea and land areas, so that two different regional regulations overlap. thus, there is a need for synchronization and harmonization of legal arrangements in the division of authority for effective ppkt management; 3. conflicts over the legal vacuum of ppkt management, where there are two regulations granting authority, namely the law no. 23 of 2014 and law no. 1 of 2014 which has a focus on granting authority to the provincial government, causing the public to be restless about the management of ppkt which results in legal uncertainty without the role of local government. therefore, the provincial government needs to give authority to the ppkt community based on the management of the zoning plan for the use of coastal areas; and 4. conflicts involving indigenous peoples whose existence is disturbed due to the absence of regulations for the empowerment of indigenous peoples in the ppkt area. conflicts in legal services and business licenses, such as obstruction of location permits and management of ppkt areas. 2.3.2 defense and security aspect this aspect focuses on several special studies that must be considered by the government of indonesia in terms of the utilization of national ppkt. it includes the development and improvement of security facilities and infrastructure, defense and border law enforcement, the placement of security apparatus in border areas supported by adequate personnel needs, the increasement of security and defense personnel’s ability, as well as the implementation of routine patrols in areas or points that are prone to territorial violations, to maximally handle transnational crime .80 indonesia's policy in overcoming various violations of sovereignty is not sufficient in increasing security and guarding the territory, but other supporting aspects of defense are needed, namely the development of the mef increasing the budget for defense and security, including the local military industry.81 this statement correlates with the fact that the mef has 80 regulation of the head of the national agency for border management no. 2 of 2015 concerning strategic plan of the national border management agency year 20152019, annex. 81 ervita zahara, et. al., “analisis ringkas cepat, pusat kajian anggaran badan keahlian sekretariat jenderal dpr ri 2020,” https://puskajianggaran.dpr.go.id/produk/detail-analisis-ringkas-cepat/id/38, 3. https://puskajianggaran.dpr.go.id/produk/detail-analisis-ringkas-cepat/id/38 strategic development of indonesia’s o utermost islands as an enhancement of national maritime defense and sovereignty muhammad dzaki fadhiil and arie afriansyah 100 a focus on developing defense through the modernization of the defense and security industry with the aim of increasing the potential of the national military. indonesia is still a country that has a low national defense budget as a maritime country compared to other countries in the asean. through the focus on the security of the ppkt area, indonesia can increase its local and international investment in the defense sector by maximizing the potential of domestic defense equipment as a producer, consumer and regulator. thus, indonesia can complement the potential investment in ppkt development in the defense and security sector to complement other ppkt potentials , by which national defense can become a “lead integrator” in the field of global maritime. 2.3.3. economic and investment aspects the economic condition of the ppkt community is different from that of the people in the main city. first, the condition of ppkt in several islands close to kalimantan which are directly adjacent to neighboring countries such as malaysia, has indicated changes in economic fluctuations, especially the difference in the exchange rate between the rupiah and the ringgit, causing the opportunity to buy and sell illegal goods between borders due to the lack of supply of basic commodities to the community.82 second, in addition to the limited supply of basic community needs, the lack of accessibility for people to enter and leave the ppkt area in eastern indonesia is a major factor hampering the community's economy. 83 third, it is difficult for the ppkt community to get their needs in the national border area, thus forcing people to cross to neighboring countries to get their needs because the production of their needs is better than local production. 84 the economic conditions of the ppkt community have resulted in the welfare of the people in ppkt being affected. first, the level of welfare of the ppkt community depends on the general habits of the local community especially their traditional rights, especially the utilization of fishery potential in complementing basic needs.85 second, the employment of the ppkt community is very limited which causes problems of equity and 82 meyzi heriyanto, “formulasi kebijakan pembangunan pulau terluar,” jurnal kebijakan publik 3, no. 1 (2012): 2. 83 femsy kour, “kajian ekonomi dan kebijakan pengelolaan pulau lirang, maluku barat daya, indonesia,” jurnal akuakultur 2, no.1 (2018): 24. 84 chairil n. siregar, “analisis potensi daerah pulau-pulau terpencil dalam rangka meningkatkan ketahanan, keamanan nasional, dan keutuhan wilayah nkri di nunukankalimantan timur,” jurnal sosioteknologi 13, (2008): 346. 85 kementerian kelautan dan perikanan, “pesisir, pulau-pulau kecil/terluar”, https://kkp.go.id/djprl/bpsplpadang/page/272-pesisir-pulau-pulau-kecil-terluar. https://kkp.go.id/djprl/bpsplpadang/page/272-pesisir-pulau-pulau-kecil-terluar udayana journal of law and culture vol. 6 no. 1, january 2022 101 inequality including the low quality of welfare in the fields of health, education, and the environment.86 the effectiveness of ppkt development is integrated through the principle of proportionality of government responsibility in carrying out regional development authority. the concept of the division of government responsibilities towards ppkt areas will be implemented based on proportionality as follows: 1. the division of responsibility for managing ppkt is carried out through the integration of regional management by the central and regional governments in maximizing synergies between institutions based on integration activities through wp3k.87 the local government will use the funds for the utilization of the ppkt area including conservation, education, marine resources, tourism, and defense and security.88 2. the local government will finance the provision of services, development, and functions through the specified source of funds. the use of local government authority in implementing management and development must pay attention to public aspects, especially on sustainable development and community empowerment; 3. reporting on the progress of ppkt development and management carried out by local governments is carried out through a fair and harmonious distribution of government financial expenditures based on an integrated regional management system; and 4. local government tax levies are adjusted to the conditions and expenditures of funds for the community in the development of ppkt by considering the principles of justice and harmony in the life of the ppkt community. referring to the concept of division of responsi bilities above, the relationship between the central and regional governments and the community will be integrated through the distribution of utilization and management of areas. therefore, the role of the central government is centrically focused on granting ppkt area permits and authority to local governments in the utilization of areas based on the zoning system and plan by considering cross-ministerial/institutional synergies. the three aspects that will complement ppkt development can be utilized by the government through evaluation and cooperation between institutions in supporting the utilization of ppkt. through planning for the policy of utilizing ppkt in national border areas, it will provide integrity and resilience to indonesian sovereignty. of course, border disputes must be 86 kementerian kelautan dan perikanan, “konservasi untuk kesejahteraan”, https://kkji.kp3k.kkp.go.id/index.php/beritabaru/267-14th-konservasi -untukkesejahteraan. 87 law no. 27 of 2007 concerning management of coastal areas and small i slands, art. 6. 88 law no. 1 of 2014 concerning amendment to law no. 27 of 2007 concerning management of coastal areas dan small islands, art. 23. https://kkji.kp3k.kkp.go.id/index.php/beritabaru/267-14th-konservasi-untuk-kesejahteraan https://kkji.kp3k.kkp.go.id/index.php/beritabaru/267-14th-konservasi-untuk-kesejahteraan strategic development of indonesia’s o utermost islands as an enhancement of national maritime defense and sovereignty muhammad dzaki fadhiil and arie afriansyah 102 resolved quickly and effectively to prevent continuation of national border disputes. 3. conclusion indonesia's strategic position creates an area that has the outermost islands in the national border area. the responsibility of the state in maximizing the potential of indonesia's outermost region from a legal perspective is to maximize the determination of maritime boundaries in maintaining state sovereignty based on international law and national law. the development of the outermost islands is a holistic focus of the indonesian government in increasing the economic potential, investment and tourism as well as ensuring the sovereignty of the country by increasing national defense. in general, ppkt conditions include limited activities for utilizing area potential, lack of development of biological ecosystems, limited accessibility, and low security activities, namely defense and security. the development of indonesian ppkt requires various aspects in various sectors to maximize development, including legal and defense and security aspects that complement the economic sector including investment and tourism potential. state defense and security as a ppkt development strategy has four main focuses, including law enforcement, development of defense forces, increasement of defense and security budgets, and maximization of defense and security industry. law enforcement focuses on accelerating the settlement of indonesia's maritime boundaries with various countries, placing military facilities and infrastructure, as well as law enforcement against violations of state sovereignty. as a sovereign country, the conce pt of strategy through diplomacy is considered to have good effectiveness, considering that the issue of sovereignty territorial disputes is a “crime” for maritime security due to different interpretations of unclos 1982. indonesia's strategy in maximizing the development of ppkt can be reviewed based on several supporting strategies, including strengthening maritime cooperation that provides a strategic role in facing global competition through diplomacy between countries, strengthening diplomatic relations in the field of defense and security through maritime policy, maximizing national defense and security through the strengthening of outer islands, as well as controlling sea boundaries by strengthening and securing national jurisdiction. thus, the effectiveness of various sectors as the focus of state defense and security to maximize the development 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https://maritim.go.id/menko-maritimluncurkan-data-rujukan-wilayah-kelautan-indonesia/ kementerian luar negeri republik indonesia (ministry of foreign affairs of the republic of indonesia). “indonesia – india dorong kerja sama ekonomi dan maritim.” https://kemlu.go.id/portal/id/read/579/berita/indonesia-indiadorong-kerja-sama-ekonomi-dan-maritim kementerian pertahanan republik indonesia (ministry of defense of the republic of indonesia). “pulau nipa jadi model percontohan pembangunan ekonomi pulau terluar berbasis pertahanan.” https://www.kemhan.go.id/2019/08/20/pulau-nipa-jadi-modelpercontohan-pembangunan-ekonomi-pulau-terluar-berbasispertahanan.html kementerian kelautan dan perikanan republik indonesia (ministry of marine affairs and fisheries of the republic of indonesia). “111 pulaupulau kecil terluar (ppkt) di indonesia.” https://kkp.go.id/dj prl/p4k/infografis-detail/5794-111-pulau-pulaukecil-terluar-ppkt-di-indonesia kementerian kelautan dan perikanan republik indonesia (ministry of marine affairs and fisheries of the republic of indonesia). “konservasi untuk kesejahteraan.” https://kemlu.go.id/download/l3npdgvzl3b1c2f0l0rvy3vtzw50cy9lywppyw4lmjbcufbll1azsyuyme9jlu1vtfrjtefurvjbtc8xnv9eaxbsb21hc2lfugvydgfoyw5hbl9nyxjpdgltlnbkzg== https://kemlu.go.id/download/l3npdgvzl3b1c2f0l0rvy3vtzw50cy9lywppyw4lmjbcufbll1azsyuyme9jlu1vtfrjtefurvjbtc8xnv9eaxbsb21hc2lfugvydgfoyw5hbl9nyxjpdgltlnbkzg== https://kemlu.go.id/download/l3npdgvzl3b1c2f0l0rvy3vtzw50cy9lywppyw4lmjbcufbll1azsyuyme9jlu1vtfrjtefurvjbtc8xnv9eaxbsb21hc2lfugvydgfoyw5hbl9nyxjpdgltlnbkzg== https://puskajianggaran.dpr.go.id/produk/detail-analisis-ringkas-cepat/id/38 https://puskajianggaran.dpr.go.id/produk/detail-analisis-ringkas-cepat/id/38 https://maritim.go.id/menko-maritim-luncurkan-data-rujukan-wilayah-kelautan-indonesia/ https://maritim.go.id/menko-maritim-luncurkan-data-rujukan-wilayah-kelautan-indonesia/ https://kemlu.go.id/portal/id/read/579/berita/indonesia-india-dorong-kerja-sama-ekonomi-dan-maritim https://kemlu.go.id/portal/id/read/579/berita/indonesia-india-dorong-kerja-sama-ekonomi-dan-maritim https://www.kemhan.go.id/2019/08/20/pulau-nipa-jadi-model-percontohan-pembangunan-ekonomi-pulau-terluar-berbasis-pertahanan.html https://www.kemhan.go.id/2019/08/20/pulau-nipa-jadi-model-percontohan-pembangunan-ekonomi-pulau-terluar-berbasis-pertahanan.html https://www.kemhan.go.id/2019/08/20/pulau-nipa-jadi-model-percontohan-pembangunan-ekonomi-pulau-terluar-berbasis-pertahanan.html https://kkp.go.id/djprl/p4k/infografis-detail/5794-111-pulau-pulau-kecil-terluar-ppkt-di-indonesia https://kkp.go.id/djprl/p4k/infografis-detail/5794-111-pulau-pulau-kecil-terluar-ppkt-di-indonesia udayana journal of law and culture vol. 6 no. 1, january 2022 107 http://kkji.kp3k.kkp.go.id/index.php/beritabaru/267-14thkonservasi-untuk-kesejahteraan kementerian koordinator bidang kemaritiman dan investasi republik indonesia (coordinating ministry for maritime & investment affairs of the republic of indonesia). “indonesia membuka peluang investasi bagi para investor dunia.” https://maritim.go.id/indonesiamembuka-peluang-investasi-bagi-para-investor-dunia/ kementerian pertahanan republik indonesia (ministry of defense of the republic of indonesia). “perbatasan maritim.” https://www.kemhan.go.id/itjen/wpcontent/uploads/migrasi/peraturan/perbatasan.pdf badan pengembangan infrastruktur wilayah kementerian pekerjaan umum dan perumahan rakyat (regional infrastructure development agency of the ministry of public works). “kementerian pupr integrasikan program-program prioritas untuk mendukung kawasan perdesaan, kawasan perbatasan dan ppkt.” https://bpiw.pu.go.id/article/detail/kementerian-pupr-integrasikanprogram-program-prioritas-untuk-mendukung-kawasan-perdesaankawasan-perbatasan-dan-ppkt sekretariat kabinet republik indonesia (cabinet secretariat of the republic of indonesia). “optimalisasi pengelolaan pulau-pulau kecil terluar (ppkt).” https://setkab.go.id/optimalisasi-pengelolaan-pulau-pulaukecil-terluar-ppkt/ http://kkji.kp3k.kkp.go.id/index.php/beritabaru/267-14th-konservasi-untuk-kesejahteraan http://kkji.kp3k.kkp.go.id/index.php/beritabaru/267-14th-konservasi-untuk-kesejahteraan https://maritim.go.id/indonesia-membuka-peluang-investasi-bagi-para-investor-dunia/ https://maritim.go.id/indonesia-membuka-peluang-investasi-bagi-para-investor-dunia/ https://www.kemhan.go.id/itjen/wp-content/uploads/migrasi/peraturan/perbatasan.pdf https://www.kemhan.go.id/itjen/wp-content/uploads/migrasi/peraturan/perbatasan.pdf https://bpiw.pu.go.id/article/detail/kementerian-pupr-integrasikan-program-program-prioritas-untuk-mendukung-kawasan-perdesaan-kawasan-perbatasan-dan-ppkt https://bpiw.pu.go.id/article/detail/kementerian-pupr-integrasikan-program-program-prioritas-untuk-mendukung-kawasan-perdesaan-kawasan-perbatasan-dan-ppkt https://bpiw.pu.go.id/article/detail/kementerian-pupr-integrasikan-program-program-prioritas-untuk-mendukung-kawasan-perdesaan-kawasan-perbatasan-dan-ppkt https://setkab.go.id/optimalisasi-pengelolaan-pulau-pulau-kecil-terluar-ppkt/ https://setkab.go.id/optimalisasi-pengelolaan-pulau-pulau-kecil-terluar-ppkt/ e-issn 2549-0680 vol. 5 no. 1, january 2021, pp. 72-95 doi: https://doi.org/10.24843/ujlc.2021.v05.i01.p05 this is an open access article, distributed under the terms of the creative commons attribution licence (http://creativecommons.org/licenses/by/4.0/), 72 countermeasures under the agreement on subsidies and countervailing measures: between the aircraft manufacturing industry and society ida bagus mahawira nawagani * department of transnational business law of faculty of law, universitas padjadjaran, bandung, west java, indonesia prita amalia ** department of transnational business law of faculty of law, universitas padjadjaran, bandung, west java, indonesia helitha novianty muchtar *** department of transnational business law of faculty of law, universitas padjadjaran, bandung, west java, indonesia. abstract countermeasures under world trade organization (wto) law are separated into two categories, remedies and a method to induce compliance after another defaulting state fails to adhere to wto's panel recommendation. this article will focus on the second category. the term ‘countermeasures’ specifically refers to an act of suspension of concessions or other obligations. one case of granted countermeasures is ds316, a case between the united states of america (us) and the european union (eu). the issue of this case is the subsidies granted by the eu for airbus, an aircraft manufacturer based in europe which consists of four european nations, which resulted in boeing's market loss. the us then requested countermeasures authorisation by the wto. countermeasures are related to the principle of proportionality both under public international law and wto law. additionally, countermeasures can lead to a more complex situation since it affects the human rights of the private actors of international trade as a part of society. this article explains the implementation of both the countermeasures and the proportionality principle, and analyses the precedents of cases and the countermeasures granted by the wto as well as the effects of the granted countermeasures to society as it creates barriers for all the international trade actors. keywords: agreement on subsidies and countervailing measures (scm agreement) countermeasures; international trade law; society. 1. introduction subsidising national entities1 to promote their domestic industry is a common practice to keep up with the competitiveness of international trade * email/corresponding author: ida16003@mail.unpad.ac.id and mahawiranib@gmail.com ** email: prita.amalia@unpad.ac.id *** email: helitha.novianty@unpad.ac.id 1 huala adolf and an-an chandrawulan, masalah-masalah hukum dalam perdagangan internasional, (bandung: rajagrafindo persada, 1995), 70. mailto:ida16003@mail.unpad.ac.id mailto:mahawiranib@gmail.com mailto:prita.amalia@unpad.ac.id mailto:helitha.novianty@unpad.ac.id countermeasures under the agreement on subsidies and countervailing measures: between the aircraft manufacturing industry and society ida bagus mahawira nawagani, prita amalia, and helitha novianty muchtar 73 and to develop the state’s education, health, security, and other sectors.2 the world trade organization (wto) does not entirely prohibit states to subsidise their national entities insofar as the subsidies do not negatively affect other states’ position in international trade or distort the stability of international trade. it is common for a state to subsidise an aircraft manufacturer since it is a high-risk industry with technological and market uncertainties and a high stake of financial risk.3 the dispute between the united states of america (us) and the european union (eu) is no exception. european communities (ec, the predecessor of the eu) subsidised airbus industrie gie (the predecessor of airbus s.a.s, hereinafter “airbus”), a consortium of aircraft manufacturers between the deutsche airbus unit of germany's daimler-benz ag, the british aerospace plc of britain, the aerospatiale of france and the construcciones aeronáuticas sa of spain.4 airbus started to produce large civil aircraft (lca) in the early 1970s.5 this subsidy increased the rivalry between airbus and boeing,6 a us aircraft manufacturer that has previously dominated the world's aerospace manufacturing industry with boeing 707 as their pioneer fleet for civil aircraft7 and boeing 737 as the best-selling civil aircraft.8 the agreement on trade in civil aircraft (atca)9 governs the trade of civil aircraft with the purpose to eliminate adverse effects as the result of government funding for the development, production and marketing of civil aircraft.10 both the us and the ec as parties of the atca found difficulties in implementing atca.11 thus, they renegotiated the implementation of the atca resulting in the establishment agreement on trade in large civil aircraft12 (atlca) which limits subsidies, inter alia, the prohibition of direct 2 mitsuo matsushita, et al., the world trade organization: law, practice, and policy third edition, (oxford: oxford university press, 2015), 300. 3 u.s. congress, office of technology assessment, “competing economies: america, europe, and the pacific rim”, ota-ite-498, washington, dc: u.s. government printing office, 1991, 343. 4 jennifer a. manner, “how to avoid airbus ii: a primer for domestic industry”, california western international law journal 23, no. 1 (1992): 141. 5 douglas a. irwina and nina pavcnik, "airbus versus boeing revisited: international competition in the aircraft market", journal of international economics 64 (2004): 223-224. 6 jeffrey d. kienstra, “cleared for landing: airbus, boeing, and the wto dispute over subsidies to large civil aircraft”, northwestern journal of international law and business 32, no.3, (2012): 571. 7 marc c. mathis, “uncivil aviation: how the ongoing trade dispute stalemate between boeing and airbus has undermined gatt and may continue to usher in an era of international agreement obsolescence under the world trade organization”, tulsa journal of comparative and international law 13, no. 1, (2005): 181 8 jeffrey d. kienstra, op.cit., 573. 9 a plurilateral agreement between aircraft manufacturer countries which is a part of gatt tokyo round 1979. 10 ibid., see also, preamble of agreement on trade in civil aircraft. 11 jennifer a. manner, op.cit., 144. 12 agreement between the european economic community and the government of the united states of america concerning the application of the gatt agreement on trade in civil aircraft on trade in large civil aircraft. udayana journal of law and culture vol. 5 no. 1, january 2021 74 government support.13 in 2003, the us failed to propose a renegotiation with the ec to modify the atlca.14 eventually, on 6 october 2004, the us unilaterally terminated the atlca and initiated to settle the dispute in the wto. the us requested consultations with the ec and proposed that the ec were contrary to article 3, 5, and 6 of the agreement on subsidies and countervailing measures (hereinafter, “scm agreement”) and article iii: 4 and xvi: 1 of the gatt 1994. the case brought by the us was titled ds316 ec and certain member states — large civil aircraft (hereinafter, “ds316”).15 they started the negotiation on 4 november 2004. on 11 january 2005, they agreed to a framework for additional negotiations.16 the framework was aimed to secure a comprehensive agreement to end subsidies to lca producers by agreeing that subsidies and litigation would be suspended and add three months more for negotiations.17 however, amid the period of the agreed framework, the ec continued to grant subsidies for the development of a350.18 after years of proceeding, on 30 june 2010, some of the ec’s measures constituted illegal subsidies19 and had adverse consequences, as they displaced imports of the us aircraft into the european market. the subsidies also terminated the export of similar products of the us in the markets of australia, brazil, china, chinese taipei, korea, mexico, and singapore. lastly, in the same market, the subsidies caused substantial revenue losses. the panel recommended that the eu shall remove the adverse effects or withdraw the subsidy immediately.20 however, both parties appealed the rulings of the panel to the appellate body (ab). to sum up, the ab reversed the panel’s recommendation regarding the german, spanish and uk a380 launching aid.21 the ab affirmed the panel's conclusion as to the launch aid and r&td subsidies granted as specific subsidies under any of the ec framework programmes. in addition, the ab demanded that the eu put its actions in line with its responsibilities under the scm agreement.22 13 agreement on trade in civil aircraft (atlca), art.3. see also, özgür çalişkan, “an analysis of the airbus-boeing dispute from the perspective of the wto process”, ege academic review 10, no: 4 (2010): 1132. 14 robert j. carbaugh & john olienyk, “boeing-airbus subsidy dispute: a sequel”, global economy journal 2, no. 6, (2004): 3. 15 european communities and certain member states—measures affecting trade in large civil aircraft, wt/ds316/1, wto, request for consultations by the us, 1. 16 jeffrey d. kienstra, op.cit., 589. 17 ibid. 18 ibid. 19 european communities and certain member states—measures affecting trade in large civil aircraft, wt/ds316/r, wto, panel report, (hereinafter, “ds316: panel report”) 2010, para. 8.1(a)(i). 20 ds316: panel report, op.cit., para. 8.6, 8.7 21 ibid., para. 8.1(j). 22 ibid. countermeasures under the agreement on subsidies and countervailing measures: between the aircraft manufacturing industry and society ida bagus mahawira nawagani, prita amalia, and helitha novianty muchtar 75 the eu informed the wto on 19 december 2011 that it has adopted necessary measures to comply with the recommendations of the dsb and its obligations as a member of the wto as regulated under article 7.8 of the scm agreement and article 19.1 of the dispute settlement understanding ("dsu"). previously, on 9 december 2011, the us already requested for the authorisation of countermeasures to the wto and initiated consultations with article 21.5 of dsu as the basis.23 the us submitted this request since the eu had not fully complied with the wto obligations and dsb’s rulings. the eu objected to the countermeasures requested by the us and insisted to arbitrate the matters pursuant to article 22.6 of the dsu.24 after years, both parties continued the arbitration on 13 january 2018 following the circulation of the compliance panel report.25 the arbitrator distributed the decision to parties on 2 october 2019. on 14 october 2019, the dsb authorised the us to take countermeasures in the amount of usd 7,496.623 million annually.26 the countermeasures level is the highest amount ever authorised by the dsb and in the form of annual suspension which gives rise to the importance of determining whether this amount is necessary for the balance of international trade or merely putting a burden for the eu to enter the us’ market. even though the disputing objects of the case were aircraft, this study is focused on the international trade aspect and does not analyse the topic through the international aviation law aspect. the main objective of this research is to analyse the issues that arise from the conditions that occurred in the ds316 case where the dsb granted the highest level of countermeasures in history. first, this article assesses the definition and implementation of countermeasures from the wto law and case precedents that force the defaulting state to immediately comply with the wto obligations. second, to assess the principle of proportionality in the wto dispute under the scm agreement. lastly, this article addresses the impacts of countermeasures in society. this article applies the normative juridical approach with a conceptual approach, statute, case study, and comparative method that is conducted through library research. the article focuses on international trade law, especially how the regulations (international agreements and proceeding rules of the wto) are implemented in practice. the results of the research are elaborated through the qualitative method. 23 ds316: european communities, available online on 10.02.21 at: https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds316_e.htm, op.cit. 24 ibid. 25 ibid. 26 european communities and certain member states – measures affecting trade in large civil aircraft, wt/ds316/arb, wto, recourse to article 22.6 of the dispute settlement understanding (dsu) by the european union decision by the arbitrator, 2 october 2019, (hereinafter, “ds316, article 22.6 decisions”) para. 9. udayana journal of law and culture vol. 5 no. 1, january 2021 76 2. result and discussion 2.1. authorised countermeasures under the wto law and cases precedents before discussing the main issue, it is necessary to explain ‘countermeasures’ under the public international law and the wto rules.27 the wto rules acting as the lex specialis of the international trade-related issues.28 2.1.1. countermeasures under international law countermeasures in international law refer to acts of retaliation which are known as ‘reprisals’ with no involvement in the use of force.29 in practising countermeasures, states hold the obligation to withhold from threats or use of force as pursuant to the charter of the united nations.30 the notion of ‘use of force’ is limited to the armed force as indirectly elaborated under united nations general assembly resolution 2625 (xxv).31 in short, reprisals without the use of force can be defined as a retaliation where the state shall refrain itself from using armed or military force when the state implements it. in implementing it, states have to respect human rights, obligations of a humanitarian character prohibiting reprisals and other jus cogens obligations.32 international law recognises countermeasures as circumstances that preclude wrongfulness.33 gabčíkovo-nagymaros project case34 sets the requirements for permissible countermeasures. the conditions are: (a) parties must attempt to resolve the dispute in good faith by calling upon the injuring state to discontinue its wrongful conduct or to make the reparation caused by the wrongful act;35 (b) the countermeasures are only taken against the injuring 27 see joost pauwelyn. “the role of public international law in the wto: how far can we go?”, american journal of international law 95 (2001): 538. 28 ibid., 539. 29 peter malanczuk. akehurst’s modern introduction to international law, 7th ed., (new york: routledge, 1997), 271, see also, malcolm shaw. international law, 6th ed., (cambridge: cambridge university press, 2008), 794. 30 art. 2(4) of the charter of the united nations. 31 unga, declaration on principles of international law concerning friendly relations and co-operation among states in accordance with the charter of the united nations, a/res/2625 (xxv), 24 october 1970, https://unispal.un.org/dpa/dpr/unispal.nsf/0/25a1c8e35b23161c852570c4006e50a b, see also, dörr, oliver, and albrecht randelzhofer. "purposes and principles, article 2 (4)," in the charter of the united nations: a commentary, volume i (3rd edition), ed. bruno simma, daniel-erasmus khan and et.al (oxford: oxford university press, 2012), para. 1628. 32 malcolm shaw, op.cit., 795, see also, ilc articles on responsibility of states for internationally wrongful acts (arsiwa), art. 50. 33 arsiwa, art. 49 and chapter v 34 gabčíkovo-nagymaros project (hungary v. slovakia), icj, judgement, 1997, 7. 35 arsiwa, art. 52(1). see also, ibid., para. 84, see also, eliza fitzgerald, “helping states help themselves: rethinking the doctrine of countermeasures: are countermeasures under the agreement on subsidies and countervailing measures: between the aircraft manufacturing industry and society ida bagus mahawira nawagani, prita amalia, and helitha novianty muchtar 77 state;36 (c) the action is proportional;37 (d) the countermeasures are meant to persuade the wrong-doing state to comply with international obligations 38 and (e) the conduct is reversible.39 in this case, slovakia failed to satisfy the proportionality requirements. its action of diverting the danube river was disproportionate since the action of unilaterally diverting international watercourse or shared resources resulted in the deprivation of hungary's right to an equal and fair share of the river's natural resources.40 countermeasures also took place in the air services agreement cases. as an example, a case regarding the change of gauge in third countries, specifically in the pan american world airways (pan am) flight from san francisco to paris with a fleet change stop in london. pan am flew the boeing 747 from san francisco and landed the aircraft in london to change the fleet to boeing 727 and later continued the flight to france in order to make the trajectory more efficient.41 according to france’s view, the 'change of gauge' in third countries was not stated in the us-france air transport services agreement and only applied to the 'change of gauge' in the territories of the parties.42 later, france disallowed passengers to disembark and to embark into the fleet which caused pan am to stop the service. at the same time, air france was operating direct air service from paris to los angeles. for this reason, the us civil aeronautics board found that france was inconsistent with the bilateral agreement and later announced that it would enact the retaliatory suspension for all of the french flights with paris to los angeles route. the arbitrators recalled that countermeasures and the alleged breach must have some degree of equivalence,43 and determining the ‘proportionality’ of the countermeasures can only be at an approximation.44 the arbitrator ruled that the countermeasures taken by the us were proportionate when compared to france’s measure.45 in sum, the principle of proportionality has to be proportional in qualitative and quantitative terms.46 further, the injured state likely satisfies the cumulative requirements of necessity and proportionality of countermeasures if the actions taken are countermeasures an effective means of resolving disputes between states?”, macquarie law journal 16, (2016): 69-70. 36 gabčíkovo-nagymaros project, op.cit., para. 83. 37 ibid., para. 85, 87. 38 arsiwa, art. 49 (1).see also, ibid. 39 art. 49 (3) of arsiwa, art. 49 (3) see also, gabčíkovo-nagymaros project, op.cit. 40 ibid., para. 87. 41 lori fisler damrosch. ‘the 1978 us-france aviation dispute’, american journal of international law 74, no. 4, (1980): 785. 42 ibid. 43 air services agreement of 27 march 1946, (us v. france), 1978, 83. 44 ibid. 45 ibid. 46 james crawford. the international law commission’s articles on state responsibility: introduction, text, and commentaries, (cambridge: cambridge university press, 2002), 296. udayana journal of law and culture vol. 5 no. 1, january 2021 78 the same or related, but it does not limit a state to take countermeasures in a different or unrelated obligation.47 2.1.2. countermeasures in the wto law countermeasures under the wto law are the means available to wto members in order to deal with exceptional circumstances and alleged breaches of the rules.48 countermeasures in the wto regime come in two categories. the first category consists of trade remedies or trade defence mechanisms and contingent protection. the forms of these countermeasures are anti-dumping, countervailing duties and safeguards.49 in terms of remedies, the wto sets the hierarchy of remedies, which includes (a) bilateral agreement; (b) withdrawal by the defendant of the wto inconsistent measures; (c) compensation and; (d) retaliation.50 the reason countermeasures or retaliation fall into the last option of the hierarchy is that many have criticised the imposition of countermeasures since it negates the purpose of the wto and it may benefit the member states which imposed it can compound their economic importance.51 the second group of countermeasures is the one that requires dsb’s authorisation.52 there are several terms used to describe this group, which include ‘retaliation’, ‘sanctions’ ‘enforcement’ ‘rebalancing’, and ‘countermeasures’. however, the commonly used term in the wto rules is ‘suspension of concessions or other obligations’.53 this type of countermeasures acts as the last resort to encourage the defaulting state to bring the unlawful measures back to conformity with their obligations under the wto rules or dsb’s recommendations promptly.54 hence, it is regulated under the objective and rational procedure and process.55 this article will assess the second group of countermeasures as the research object. 47 ibid., 283. 48 walter goode. dictionary of trade policy terms, 6th ed., (cambridge: cambridge university press, 2020), 132. 49 ibid. 50 r. rajesh babu. remedies under the wto legal system, (leiden: koninklijke brill nv, 2012), 131. 51 junianto j. losari and michael ewing-chow, “a clash of treaties: the lawfulness of countermeasures in international trade law and international investment law”, journal of world investment and trade 16 (2015): 304, see also, marco dani. “remedying european legal pluralism: the fiamm and fedon litigation and the judicial protection of international trade bystanders”, european journal of internatinal law 21, no. 2, (2010): 320. 52 walter goode, op.cit. 53 ibid., 224, see also, michelle limenta. wto retaliation: effectiveness and purposes, (portland: hart publishing, 2017) 90. 54 dsu, art. 19.1. 55 ida bagus wyasa putra and ni ketut supasti dharmawan, hukum perdagangan internasional, (bandung: refika aditama, 2017), 150. countermeasures under the agreement on subsidies and countervailing measures: between the aircraft manufacturing industry and society ida bagus mahawira nawagani, prita amalia, and helitha novianty muchtar 79 countermeasures in the wto law are expected to induce compliance and to justify a countermeasure that is punitive in nature.56 as regulated under the dsu, countermeasures or the suspension of concessions or other obligations is not permanent and can only be executed in the time where the non-compliant members fail to implement the recommendations and rulings.57 there is no limit on the types of objects of the countermeasures.58 countermeasures frequently take the form of the suspension of concessions or other obligations.59 the complaining state shall follow the principles and procedures in considering the concessions or other obligations to be suspended. the first principle states that the suspension of concessions or other commitments in the same sector(s) should be given priority.60 second, if the first principle is impracticable or ineffective, the complaining state may seek to suspend concessions or obligations of different sectors under the same agreement.61 third, if the second principle is impracticable or ineffective and the circumstances in particular cases are severe enough, the complaining state may attempt to suspend concessions or obligations of another covered agreement.62 a suspension may take place as long as the covered agreement allows it and the application is authorised by the dsb to the degree that it corresponds to the level of nullification or impairment.63 the dsb shall authorise within 30 days of the expiry of the reasonable period of time unless the dsb decides to reject the request. if there is an objection to the level of the suspension requested or if the request is contrary to the second and third principles or procedure, the party shall refer the disputed matter to the arbitration.64 the arbitration has a purpose to determine the equivalency of the suspension requested with the level of the nullification or impairment, the legality of the requested suspension under covered agreement and not the nature of the concessions or obligations unless the matter of the arbitration 56 european communities — regime for the importation, sale and distribution of bananas, recourse to arbitration by the european communities under article 22.6 of the dsu, wt/ds27/arb, 9 april 1999, para 6.3, see also, us – gambling and betting, recourse to arbitration by the us under article 22.6 of the dsu, wt/ds285/arb, 21 december 2007, para 3.71, see also, arie reich, “the effectiveness of the wto dispute settlement system: a statistical analysis”, eui working paper law 2017/11, (2017): 15. 57 dsu, art. 22.1 see also, dyan f. d. sitanggang, “posisi, tantangan, dan prospek bagi indonesia dalam sistem penyelesaian sengketa wto”, veritas et justitia 3, no. 1: 96. 58 canada — export credits and loan guarantees for regional aircraft — recourse to arbitration by canada under article 22.6 of the dsu and article 4.11 of the agreement on subsidies and countervailing measures (scm agreement), decision by the arbitrator, 17 february 2003, wt/ds222/arb, footnote 82. 59 michelle limenta, op.cit., 90. 60 dsu, art. 22.3 (a). 61 dsu, art. 22.3 (b). 62 dsu, art. 22.3 (c). 63 dsu, arts. 22.4 and 22.5. 64 dsu, art. 22.6. udayana journal of law and culture vol. 5 no. 1, january 2021 80 invokes the principles and procedures as set under article 22.3 of the dsu.65 as countermeasure is temporary, it shall be terminated at the moment that the inconsistent member has removed the inconsistent measure, or a solution is given by the member for the secession or impairment of benefits, or if the member states find mutually agreed solutions.66 to conclude, countermeasures under the wto law require the authorisation from the dsb and the countermeasures are taken under the surveillance of the dsb. 2.1.3. countermeasures under the scm agreement the scm agreement uses the expression 'countermeasures' rather than 'suspension of concessions or other responsibilities' as opposed to the dsu. not to be confused with the ‘countervailing measure’, countermeasure induces compliance with the recommendations and rulings of the panel of non-complying states. while countervailing duty is an act of a state where they levy a special duty to offset any subsidy bestowed of any merchandise. nevertheless, the scm agreement follows the provisions under the dsu when a party of a dispute requested for an arbitration proceeding as established under article 22.6 of the dsu.67 forms of countermeasures under the scm agreement vary and follow the types of subsidies under the scm agreement, which are the prohibited subsidies and actionable subsidies. however, the provisions of non-actionable subsidies under the scm agreement have expired as stipulated under article 31 of the scm agreement, including the provisions regarding countermeasures.68 article 4.10 of the scm agreement regulates countermeasures for prohibited subsidies, where the dsb shall authorise to the prevailing members to take appropriate countermeasures if the recommendation of the dsb is not followed by the non-compliance member state within the time period specified by the panel unless the dsb decides by consensus to reject such request from requesting member.69 furthermore, article 4.10 and 4.11 of the scm agreement complement each other,70 wherein article 4.11 of the scm agreement, the arbitrator shall decide if the countermeasures are appropriate pursuant to article 4.10 before the dsb authorises the countermeasures requests. article 4.11 of the scm agreement also refers to article 22.6 of the dsu in terms of the request for arbitration.71 65 dsu, art. 22.7. 66 dsu, art. 22.8. see also, us – continued suspension, appellate body report, wt/ds320/ab/r, 16 october 2008, section iv.e. 67 scm agreement, arts. 4.11 and 7.10 68 article 31 of the scm agreement, see also, mark wu, re-examining ‘green light’ subsidies in the wake of new green industrial policies, (geneva: international centre for trade and sustainable development, 2015), 3. 69 scm agreement, art. 4.10. 70 wolfgang müller. wto agreement on subsidies and countervailing measures: a commentary, (cambridge: cambridge university press, 2017), 243. 71 scm agreement, art. 4.11. countermeasures under the agreement on subsidies and countervailing measures: between the aircraft manufacturing industry and society ida bagus mahawira nawagani, prita amalia, and helitha novianty muchtar 81 the countermeasures for actionable subsidies are regulated under article 7.9 of the scm agreement. if a member state has not taken sufficient steps to eliminate the adverse effects of the subsidy or to revoke the subsidy within six months of the date on which the panel report or the ab report is adopted by the dsb and no agreement on compensation has been reached, the dsb shall grant the complaining member the authorisation to take countermeasures.72 under the scm agreement, article 7.10 fulfils a similar function with article 4.11 since it complements article 7.9 and gives a mandate for the arbitrator to determine the commensurateness of the countermeasures requested with the adverse effects caused by subsidies.73 2.1.4. precedents of authorised countermeasures the us upland cotton (ds267) is a landmark decision before wto dsb. the background of this case was the us granted subsidies in the form of the us domestic agricultural support measures or known as 'domestic support', export credit guarantees and measures believed to be export subsidies and domestic content subsidies.74 after sets of proceedings, the dsb decided that some supports by the us’ government were prohibited and actionable subsidies.75 after the decision was circulated, brazil requested to establish the compliance panel. on 18 december 2007, the panel ruled that the us had not removed the inconsistent measures. however, the us appealed the compliance panel decision. the ab report was delivered to the member states on 2 june 2008 and ruled that the us was still inconsistent and had to urgently put their measures into conformity. as the us had refused to adhere, well after the conclusion of the compliance proceedings, brazil demanded the resumption of the arbitration proceedings.76 previously, brazil requested the authorisation of ‘crossretaliation’. on 31 august 2009, the reports of the arbitration were circulated, the arbitrator authorised brazil’s request to impose the countermeasures towards the us at a level of usd 147.4 million for the prohibited subsidies and usd 147.3 million annually for the actionable subsidies. brazil was also granted to take ‘cross-retaliation’ for sectors regulated in the trips agreement and/or the gats. on 30 april 2010, brazil told the dsb that it was postponing the imposition of countermeasures and because brazil and the us had engaged in a negotiation to find agreed solutions to the conflict. 72 scm agreement, art. 7.9. 73 wolfgang müller, op.cit., 360. 74 summary of the us – upland cotton, ds267, available online on 10.02.21 at: https://www.wto.org/english/tratop_e/dispu_e/cases_e/1pagesum_e/ds267sum_e.pdf. 75 united states subsidies on upland cotton, wt/ds267/r, report of the panel, and united states subsidies on upland cotton wt/ds267/ab/r. report of the appellate body. 76 brazil already requested to take countermeasures in 2005. however, both brazil and the us requested to suspend the arbitration proceeding. udayana journal of law and culture vol. 5 no. 1, january 2021 82 the second case that is related to subsidies, countermeasures, and specifically aircraft subsidies is canada – export credits and loan guarantees for regional aircraft (ds222). it was regarding the disagreement between canada and brazil between 1996 and 2001 which involved regional aircraft export financing schemes resulting in three wto cases,77 including ds222. the matters of the case were the measures of canada for the export credits, including financing, loan guarantees, or interest rate to facilitate the export of civil aircraft, and export credits and guarantees.78 the arbitrator ruled that the edc canada account financing to several airlines constituted illegal subsidies.79 thus, canada had to withdraw the illegal subsidies. however, canada failed to conform its measures to the panel’s rulings and recommendations. hence, brazil requested usd 3.36 billion countermeasures authorisation in accordance with article 4.10 of the scm agreement, brazil submitted this value of countermeasures by measuring the competitive damage caused by the subsidy from canada.80 firstly, the arbitrator determined what countermeasures constituted as ‘appropriate’. briefly, the amount proposed by brazil was disproportionate under two main reasons; firstly, the amount calculated by brazil was based on assumption and not sustainable, and secondly, the amount resulted from the calculation methodology proposed by brazil was clearly disproportionate.81 the arbitrator then calculated the appropriate level of the countermeasures through the methodology to calculate the subsidy per-undelivered-aircraft as canada submitted, not the competitive harm per-aircraft caused by canada’s subsidies.82 the reason why the arbitrator ruled that the amount proposed was disproportionate was that the level of the countermeasures exceeded the value in the case of brazil – aircraft (ds46),83 a case involving the same parties and identical breaches of the scm agreement.84 the countermeasures submitted in the ds222 by brazil case had a 43 times greater level than the level granted in ds46, bearing in mind that the amount of subsidies per aircraft had not so different.85 the arbitrator also calculated the appropriateness of the proposed countermeasures by comparing the level of countermeasures with the overall amount of goods 77 stefan gössling, frank fichert and peter forsyth, “subsidies in aviation”, sustainability 9 (2017): 5. 78 canada – export credits and loan guarantees for regional aircraft, wt/ds222/r, wto, report of the panel, para. 2.2. 79 ibid., para 8.1(a)-(j). 80 canada – export credits and loan guarantees for regional, wt/ds222/arb, wto, recourse to arbitration by canada under article 22.6 of the dsu and article 4.11 of the scm agreement, (hereinafter, “ds222: article 22.6 decisions”) para. 3.1. 81 ibid., para. 3.50. 82 ibid., para. 3.26, 3.89. 83 decision by the arbitrators, brazil – export financing programme for aircraft – recourse to arbitration by brazil under article 22.6 of the dsu and article 4.11 of the scm agreement, wt/ds46/arb, 28 august 2000. 84 ds222: art. 22.6 decisions, op.cit., para. 3.39. 85 ibid. countermeasures under the agreement on subsidies and countervailing measures: between the aircraft manufacturing industry and society ida bagus mahawira nawagani, prita amalia, and helitha novianty muchtar 83 imported from canada.86 the arbitrator found that the level proposed exceeded the overall imported goods from canada. in 2001, canada submitted that the goods imported were around usd 591 million, while brazil submitted that the sum including the transhipped goods from the us was usd 927 million, the countermeasures proposed certainly exceeded the overall imported goods from canada to brazil.87 the arbitrator also established that article 4.10 of the scm agreement allows the requesting party to determine the level of the countermeasures based on either the level of the subsidy or the effect of the subsidy.88 later, the arbitrator set the level of the countermeasures to usd 247,797,000.89 the third case to analyse is ds316. the us requested the authorisation for countermeasures since the eu failed to remove the adverse effects caused by the subsidies granted or to withdraw the subsidies within six months pursuant to articles 7.8 and 7.9 of the scm agreement.90 the us requested the dsb’s authorisation to take countermeasures in the amount of usd 7-10 billion per year.91 burdened by the level of the requested countermeasures, the eu referred to arbitration under article 22.6 of the dsu. the proceeding has been suspended for six years and then it was resumed after the us requested to continue the arbitration on 13 july 2018, specifically six weeks after the compliance panel report and the ab report were adopted. in the arbitration proceedings, the eu requested preliminary rulings with three arguments. first, the eu argued that under article 22.8 of the dsu, countermeasures could only be authorised after the outcome of the multilateral review of substantive compliance claim and the eu asserted that in this case, the compliance panel’s report had not been issued, prohibiting the dsb to authorise such claim proposed by the us. the arbitrator rejected the eu’s arguments since the implementation of article 22.8 of the dsu related to the ‘post-authorisation’,92 the arbitrator referred to the us – tuna ii (mexico) where mexico requested for the authorisation to retaliate against the us. however, at around the same time, both parties requested for the establishment of the compliance panel in a separate request, the us’ revised measure entered into force and the us claimed it was already consistent. finally, the arbitration finished the proceedings and the dsb granted the request of mexico to retaliate against the us before the compliance panel issued their report. this is similar to this case where the us requested the authorisation before the second compliance panel finished their work. citing from the us – tuna ii, article 22.6 of the dsu requires the arbitrator to determine the level of nullification or impairment on the basis of the original measure 86 ibid., para 3.42. 87 ibid. 88 ibid., para. 3.57-3.60. 89 ibid., para 4.1. 90 ds316: art. 22.6 decisions, op.cit. 91 ibid., para. 1.5. 92 ibid., para. 2.22 udayana journal of law and culture vol. 5 no. 1, january 2021 84 inconsistency with the wto or a subsequent wto-inconsistent compliance measure. the arbitrator further set that the basis to determine the level of nullification or impairment may or may not be the most recent measures.93 in the ds316, the arbitrator did not determine the level of nullification or impairment based on the most recent version measures since the arbitrator did not wait for the unfinished second compliance panel. the second argument of the eu was that the wto’s remedies were non-retroactive and prospective in nature and by authorising the us request, the arbitrator would give the us a retroactive remedy, since the request sought remedies for past breaches of the scm agreement, rather than the recent inconsistency with the scm agreement.94 against the eu’s argument, the arbitrator established that under article 22.8 of the scm agreement, the dsb will prospectively approve countermeasures from the date of the authorisation before a new multilateral decision is reached by the dsb that there is no longer a violation.95 the unilateral declaration made by the eu which declared itself as having already achieved full compliance was not considered as multilateral determination until it is proven by the compliance panel.96 lastly, the arbitrator rejected the eu’s argument on the invoking decisions from certain cases, namely, the ec – bananas iii (us), the us – upland cotton, brazil – aircraft, and the us – tuna ii (mexico), since the circumstances in those cases were different. for instance, the arbitrator in brazil – aircraft decided to wait for the compliance panel’s result before starting the proceedings, since the result of this panel is influential to determine if brazil’s complying measure can be considered as conformity to the wto obligations and the panel at that point had not determined the non-compliance measure from the compliance proceedings.97 this is different from this case since the first compliance panel already circulated its report and there was no need to delay the proceeding further for the second compliance panel. after determining the preliminary issues, the arbitrator assessed the countermeasures level requested by the us. as submitted by the us, the measure will be taken in a form of annual suspension, in which, annual suspension refers to a single, maximum level of countermeasures that will be imposed by the us after the authorisation by the dsb.98 the us submitted the 2011-2013 reference period as the basis to calculate the element of ‘adverse effects determined to exist’. that reference showed the five sales losses and impedance in six separate geographical markets within that period which were caused by the eu subsidies.99 93 ibid., para. 2.32 94 ibid., para. 2.25 95 ibid., para. 2.27 96 ibid. 97 ibid., para. 2.31 98 ibid., para. 6.3. 99 ibid., para. 1.4. countermeasures under the agreement on subsidies and countervailing measures: between the aircraft manufacturing industry and society ida bagus mahawira nawagani, prita amalia, and helitha novianty muchtar 85 the eu submitted that the 2011-2013 reference period cannot be used to grant annual suspension since it can only be granted if the measure in a past reference period is ‘recurring’. the eu also added that the reference period did not provide the adverse effects of today or future estimations.100 in response to the arguments submitted by both parties, the arbitrator addressed the level of the countermeasures which may be granted and recalled that it was their task to determine the level of the countermeasures which was mandated by article 7.10 of the scm agreement. concerning this issue, the arbitrator found that the 2011-2013 reference period was appropriate to determine the countermeasures’ maximum level since it represented the adverse effects caused by the eu’s subsidies specifically the la/msf of a380 and a350xwb, in which the effects were the sales losses and impedance in six separate geographical markets. the reference also satisfied points (a) and (b) of article 6.3 of the scm agreement. this period took place shortly after the conclusion of the period of implementation in the present dispute.101 regarding the ‘recurring’ measures condition proposed by the eu, the arbitrator emphasised that ‘recurrence’ is not a prerequisite for an annual suspension, adding that countermeasures serve to induce conformity, whether the measure is 'recurring' or 'non-recurring', with regard to all manners considered to be wto-inconsistent.102 lastly, as argued by the eu, the 2011-2013 reference period did not provide the adverse effects of today or future estimations which resulted in the inappropriateness of the reference period to be used to calculate the maximum level of the countermeasures. the arbitrator disagreed with this argument and stated that the lack of actual data entails that any such assumptions about the future or potential occurrence of adverse effects will be hypothetical. an additional concern as reported by the ab was that the predictability of the business environment in the lca industry is by definition impossible.103 2.2. the proportionality of countermeasures in the scm agreement the scm agreement requires the taking of countermeasures in a proportionate way. the dsb shall approve the request of the complaining party for an 'appropriate countermeasure’ as enshrined under article 4.10 of the scm agreement. this article does not define the precise formula or standard or the total amount of countermeasures that could be specifically approved in every instance.104 however, if it effectively induces compliance or induces the withdrawal of a prohibited subsidy, then a countermeasure is 100 ibid., para. 6.34. 101 ibid., para. 6.57 102 ibid., para. 6.52 103 ibid., para. 6.64, and ec and certain member states – large civil aircraft (article 21.5 – us), wt/ds316, wto, appellate body report, 18 may 2011, at fn 1625. 104 us – fsc, recourse to arbitration by the united states under article 22.6 of the dsu and article 4.11 of the scm agreement, wt/ds108/arb, (hereinafter, “ds108: article 22.6 decisions”), 30 august 2002, para. 5.11. udayana journal of law and culture vol. 5 no. 1, january 2021 86 deemed as appropriate.105 even though the expression of ‘appropriate countermeasures’ provides the flexibility to determine which measure is ‘appropriate’,106 the level or amount of the authorised countermeasures has some boundaries where countermeasure cannot be disproportionate or excessive considering that these provisions dealt prohibited subsidies.107 in contrast, article 7.9 of the scm agreement states that the countermeasures taken shall be ‘commensurate with the degree and nature of the adverse effects determined to exist’.108 this expression implies that the arbitrator has more discretion than in the dsu, where the dsu stated that suspension of concessions level shall be equivalent to the level of impairments and nullifications.109 the word ‘commensurate’ connotes to the correspondence between the countermeasures and the ‘degree and nature of the adverse’. while in defining the ‘degree and nature’, the term ‘degree’ related to the quantitative elements of the adverse effects and ‘nature’ corresponds with the qualitative elements of the adverse effects. lastly, the element of ‘the adverse effects determined to exist’ refers to the injury to the domestic industry of a member, nullification or impairment, or serious prejudice to the interests of another member.110 2.2.1. analysing the proportionality principle in the ds316 accordingly, although the expression "commensurate with" may not entail accurate numerical correspondence, this does not suggest that countermeasures commensurate with the actual adverse effects could or should involve any punitive aspect.111 the arbitrator noted that article 7.10 of the scm agreement is silent on the method when determining the commensurateness of the countermeasures, which means that article 7.10 leaves the arbitrator a degree of discretion in choosing the appropriate methodology.112 after assessing the parties’ submissions, the arbitrator held that the us has the right to impose countermeasures towards the eu in the amount of usd 7,496.623 million by suspending the tariff concessions and related obligations to the eu under the gatt 1994 and/or horizontal or sectoral commitments included in the services sectoral classification list, with financial services as the exception of the suspension and determined 105 brazil – aircraft, recourse to arbitration by the united states under article 22.6 of the dsu and article 4.11 of the scm agreement wt/ds46/arb, paras. 3.42-3.6 106 ds108: article 22.6 decisions, op.cit., para. 5.19. 107 footnote 9 of the scm agreement, see also, wolfgang müller, op.cit., 360. 108 ibid. 109 andrew d. mitchell, “proportionality and remedies in wto disputes”, european journal of international law 17, no. 5 (2006): 1001. 110 wto, wto analytical index: scm agreement – article 7 (jurisprudence), available online on 10.02.21 at: https://www.wto.org/english/res_e/publications_e/ai17_e/subsidies_art7_jur.pdf, 18. 111 ds316: art.22.6 decisions, para. 5.4. 112 ibid., para. 6.371. countermeasures under the agreement on subsidies and countervailing measures: between the aircraft manufacturing industry and society ida bagus mahawira nawagani, prita amalia, and helitha novianty muchtar 87 that the value was ‘commensurate with’, lower than what the us proposed with usd 10,560 million.113 in determining the level of the countermeasures the arbitrator excluded the present day inflation to the ‘adverse effect determined to exist’ as the us requested since in all referred arbitration proceedings ruled that the annual suspension maximum level or amount excluded the adjustment of inflation up until the day of the countermeasures authorisation from the past period level of nullification or impairment or the value of adverse effects sustained.114 lastly, the us requested for the authorisation to adjust the maximum level of annual suspension with yearly inflation with reference to the inflation data from the previous year (for instance, the data from 2019 will be the basis for the us to adjust the 2020 maximum level of suspension).115 the arbitrator declined the us’ request since there were no cases found that adjusting the level of annual suspension based on inflation as an appropriate method. additionally, once the maximum level of annual suspension set, the level will be arranged in the future at a fixed monetary level.116 the arbitrator also noted that the arbitrator in us – washing machines case117 held that the annual suspension could be adjusted each year since both parties agreed to the notion.118 the arbitrator underlined that the arbitrator in the us – washing machines did not explain the reasons why they warranted such a different approach in comparison with other decisions, hence the arbitrator decided differently with this case.119 the reason to set a fixed value for an annual suspension is to maintain the real value from being eroded by future inflation. to determine the effectiveness of the countermeasures taken here, we can refer to the purpose of countermeasures itself which is to induce compliance and not a justification for countermeasures of a punitive nature.120 by february 2020, the us imposed the tariff by raising the aircraft charges from 10% to 15%, leaving the 25% duty on other items unchanged and holds off on a threatened tariff increase on usd 7.5 billion of european exports.121 the eu complied their inconsistent measure with the wto 113 ibid., para. 6.506. 114 ibid., para. 6.512. 115 ibid., para. 6.515. 116 ibid., para. 6.518. 117 us – washing machines, recourse to arbitration by the united states under article 22.6 of the dsu and article 4.11 of the scm agreement, wt/ds464/arb, decision by the arbitrator, 8 february 2019 118 ds316: art. 22.6 decisions, para. 6.518. 119 ibid., para. 6.520. 120 european communities — regime for the importation, sale and distribution of bananas, recourse to arbitration by the european communities under article 22.6 of the dsu, wt/ds27/arb, 9 april 1999, para 6.3, see also, united states – gambling and betting, recourse to arbitration by the united states under article 22.6 of the dsu, wt/ds285/arb, 21 december 2007, para. 3.71. 121 us holds off on threatened tariff hike in eu airbus fight, available online on 10.02.21 at: https://www.bbc.com/news/business-53756201 udayana journal of law and culture vol. 5 no. 1, january 2021 88 obligations as announced in the press release dated 24 july 2020 where the governments of france and spain along with airbus se agreed to modify the repayable launch investment for the development of the a350 aircraft as granted by france and spain.122 2.3. the effects of ‘countermeasures’ to the society despite accelerating the process to induce compliance for nonconforming states, countermeasures come with ‘side-effects’. although it might seem that this authorised countermeasures only affect the member states in the position as sovereignty since it harms both importing and exporting states by limiting economic freedom.123 not only affecting the situation of the state’s economy but countermeasures can also be more complex since they can affect the society either directly or indirectly. private economic actors (such as persons, companies, even foreign investors) that act as either producers, consumers, exporters or importers are actually the ones that have to suffer from the countermeasures.124 the situation worsens as the wto law remains silent on providing direct mechanisms and only implicitly grants rights or obligations to them resulted in a high-risk situation for these actors.125 states can impose countermeasures on other sectors if the same sector cannot satisfy the adverse effects caused by the breach. this principle can endanger private actors in other sectors, these injured actors are called as ‘innocent bystanders’.126 one example of this issue was in the ec – banana iii (us) where the us imposed countermeasures towards the ec.127 briefly, the us submitted this case since the ec imposed a tariff quota of 2 million tonnes for the imported bananas from latin american countries and non-traditional african, caribbean and pacific countries.128 the ec also gave preferential treatment for the ‘former colonies’ under the same scheme known as the common market organization.129 this scheme was inconsistent with the wto rules. since the us won the case and the ec failed to remove this scheme, the us filed for the suspension authorisation from the dsb. the dsb granted this request and gave the right for suspension for the us in the amount of usd 191.4 million in a form of 122 european commission, press release, eu and airbus member states take action to ensure full compliance in the wto aircraft dispute, available online on 10.02.21 at: https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1405. 123 junianto james losari and michael ewing-chow, op.cit, 304. 124 intan innayatun soeparna, ‘the impact of the wto retaliation from the perspective of human rights law’, mimbar hukum 20, no. 3, (2008): 579, see also, junianto james losari and michael ewing-chow, op.cit., 278. 125 intan, ibid. 126 marco bronckers and sophie goelen, 'financial liability of the eu for violations of wto law: a legislative proposal benefiting 'innocent bystanders'', legal issues of economic integration 39, no. 4 (2012): 399. 127 european communities — regime for the importation, sale and distribution of bananas, wt/ds27. 128 kawal gill and panya baldia, “going bananas: a glimpse into wto’s dispute settlement mechanism”, journal of international business 5, no.1 (2018): 111. 129 ibid. countermeasures under the agreement on subsidies and countervailing measures: between the aircraft manufacturing industry and society ida bagus mahawira nawagani, prita amalia, and helitha novianty muchtar 89 annual suspension, the tariff was imposed on the imported goods from the ec, ranging from french cheese to scottish cashmere.130 this suspension also affected companies that were just innocent bystanders, for instance, fiamm, a batteries producer, and fedon, a spectacle cases company. both companies were not related to the banana regulation; however, they were still unconvinced by the us’ suspension. these two companies, along with four others131 sought compensation to the court of first instance of the european communities after the ec did not follow the wto recommendations. unfortunately, the ec first instance court rejected the request for compensation made by these companies.132 in 2008, fiamm and fedon appealed to the european court of justice, but they failed to get the compensation caused by the ec’s failure to conform its measures to wto obligations.133 this case indicates that individuals, or more specifically private actors, in the society that actively participated in international trade can be the victims of countermeasures.134 countermeasures seem to infringe universal human rights as protected under the international bill of human rights.135 the international trade and consequence of countermeasures are closely related to article 1 (2) of the international covenant on economic, social and cultural rights since this article ensures the right of all people to dispose of their natural and wealth resources for their ends.136 by limiting the access to free trade of the people by imposing tariffs, it creates a barrier that limits the private actors from disposing of their wealth resources and reduce the opportunity of the people. pierre lemieux and jim powell oppose the idea of retaliation since it does not make any economic sense and not morally defensible as it prohibits people to freely trade.137 the aircraft manufacturing industry promotes economy productivity in society. the industry itself ranges from research and development, manufacturing and its final product is used to transport people and cargo. these broad sectors can be threatened by countermeasures, especially when the countermeasures include different sectors, as in the ds316 case. the us will also impose countermeasures on non-aircraft goods ranging from 130 patrick barkham, the guardian, “the banana wars explained”, available online on 10.02.21 at: https://www.theguardian.com/world/1999/mar/05/eu.wto3. 131 alberto alemanno, “european court rejects damages claim from innocent bystanders in ‘banana war’”, american society of international law sight 12, no. 21 (2008). 132 ibid. 133 ibid. 134 steve charnovitz. “rethinking trade sanctions”, american journal of international law 1 (2001): 813. 135 oliver diggelmann and maria nicole cleis, “how the right to privacy became a human right”, human rights law review 14 (2014): 443. 136 intan, op.cit., 582, see also, international covenant on economic, social and cultural rights, art. 1 (2). 137 pierre lemieux, “ottawa wins a jet battle, but canadians lose”, wall street journal a17, (2000), see also, jim powell, “why trade retaliation closes markets and impoverishes people”, policy analysis 43, (1990): 2. udayana journal of law and culture vol. 5 no. 1, january 2021 90 food to garments and other goods and services included in the services sectoral classification list.138 this means that the actors in these sectors will be innocent bystanders. reflecting on the ec banana iii (us) case, the tariffs imposed by the us threatened the scottish cashmere industry, and it was predicted that it would put thousands of workers at risk of losing their jobs.139 besides, us airlines that import airbus aircraft will increase ticket prices due to the import tariffs, this will affect passengers because it forces them to pay more and indirectly to compensate for the import tariffs burdened to the airlines.140 to reduce the loss caused by the tariffs, airlines might increase their fares which will cause the airlines’ passengers to pay more.141 countermeasures certainly cause disadvantages for all the trade actors. 3. conclusion countermeasures under the wto rules are different from the ones regulated under public international law. the wto rules require prior dsb’s authorisation to ensure effectiveness and restrain the disadvantages of countermeasures. countermeasures act as the last resort that can effectively induce compliance. in the ds267 both parties successfully negotiated to postpone and later end the countermeasures in less than a year after the authorisation. in the ds222, the arbitrator established that the party that requested the authorisation may base the level of countermeasures on the level of the subsidy or the effect of the subsidy. lastly, in ds316, the arbitrator authorised the countermeasures based on the calculation of the 2011-2013 reference period since it represented the adverse effects caused by the subsidies and did not assume about the future or potential occurrence. regarding the proportionality, article 4.10 and 7.9 of the scm agreement give a different level of countermeasures. article 4.10 of the scm agreement provides that countermeasures shall be appropriate, while article 7.9 of the scm agreement governs that countermeasures shall be commensurate with the degree and nature of the adverse effects determined to exist. in sum, countermeasures are appropriate if it is effectively inducing compliance without any punitive intention. in the ds316 case, the us requested for the annual suspension based on the past period of the adverse effects determined to exist. the annual suspension precludes the changes in the value caused by inflation. lastly, since countermeasures are appropriate if it is effectively inducing compliance without any punitive intention, then the immediate responses of the eu mean that the 138 office of the united states trade representative, federal register/vol. 85, no. 124, annex i. 139 patrick barkham, op.cit. 140 ruta burbaite, “airbus slapped with 10% tariffs, industry to lose more, it says”, available online on 10.02.21 at: https://www.aerotime.aero/24027-airbus-slapped-with-10tariffs-industry-to-lose-more-it-says. 141 ibid. countermeasures under the agreement on subsidies and countervailing measures: between the aircraft manufacturing industry and society ida bagus mahawira nawagani, prita amalia, and helitha novianty muchtar 91 countermeasures hold an important role that could effectively induce inconsistent member state to be consistent with the wto obligations. however, countermeasures only lapse after the wto’s confirmation or if the parties reached a mutually satisfactory solution. countermeasures also affect society since it harms both importing and exporting states by limiting economic freedom of the private economic actors that act as producers, consumers, exporters or importers. these actors are suffering from countermeasures due to increased tariffs on imported goods and/or services. these effects viably will happen in the ds316 since the us imposed import tariffs on goods and services from the eu that range from food to aircraft. further, the tariff will threaten the us airlines industry, especially those that import airbus' aircraft to the us. to reduce the loss caused by the importation 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countervailing measures: between the aircraft manufacturing industry and society ida bagus mahawira nawagani, prita amalia, and helitha novianty muchtar 95 website content ds316: european communities and certain member states — measures affecting trade in large civil aircraft, https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds316_e.htm european commission, press release, eu and airbus member states take action to ensure full compliance in the wto aircraft dispute, https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1405 patrick barkham, the guardian, “the banana wars explained”, https://www.theguardian.com/world/1999/mar/05/eu.wto3 ruta burbaite, “airbus slapped with 10% tariffs, industry to lose more, it says”, https://www.aerotime.aero/24027-airbus-slapped-with-10tariffs-industry-to-lose-more-it-says summary of the us – upland cotton, ds267, https://www.wto.org/english/tratop_e/dispu_e/cases_e/1pagesum_e /ds267sum_e.pdf us holds off on threatened tariff hike in eu airbus fight, https://www.bbc.com/news/business-53756201 wto, wto analytical index: scm agreement – article 7 (jurisprudence), https://www.wto.org/english/res_e/publications_e/ai17_e/subsidies_ art7_jur.pdf https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds316_e.htm https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1405 https://www.theguardian.com/world/1999/mar/05/eu.wto3 https://www.aerotime.aero/24027-airbus-slapped-with-10-tariffs-industry-to-lose-more-it-says https://www.aerotime.aero/24027-airbus-slapped-with-10-tariffs-industry-to-lose-more-it-says https://www.wto.org/english/tratop_e/dispu_e/cases_e/1pagesum_e/ds267sum_e.pdf https://www.wto.org/english/tratop_e/dispu_e/cases_e/1pagesum_e/ds267sum_e.pdf https://www.bbc.com/news/business-53756201 https://www.wto.org/english/res_e/publications_e/ai17_e/subsidies_art7_jur.pdf https://www.wto.org/english/res_e/publications_e/ai17_e/subsidies_art7_jur.pdf i udayana journal of law and culture e-issn 2549-0680 vol. 3 no.2 july 2019 preface the current edition contains articles that represent the “the dynamics of global society”. it is generally understood that the current global society comprises ‘traditional’ actors such as states and international organizations and other emerging actors that may play a key role in global interactions. the first article tries to advance the issue of diaspora that faced by almost all countries in the world due to the freedom of movement of persons by taking an example of indonesian diaspora. the idea of developing a new diaspora category, called as a “special friends of indonesia’ (indonesianist), seems not supported by the current law and regulation. whatsoever, in a view of that this category would conceptually not become a utopia, this article argues that student mobility programs may be a means of nurturing of future indonesianist. the second and third articles reveal global economic competitions, as a reality of the global society dynamics, that have an impact in the field of both private and public laws. the second article analyzes the differences in legislation of vertical restraints in the european union (eu) and the united states (us). it offers a relatively balanced perspective by assessing that exclusive distribution and non-compete clauses may have both positive and negative effects on international markets. the example of competition law in the eu has also been addressed in the third article which discusses the approach used in asean single aviation market competition laws. on one hand, this article moderately acknowledges regional enforcement as a means of preventing and opposing unfair competition, but on the other hand, it also proposes the adoption of the concept of international comity as an achievable alternative to existing asean competition laws. the fourth article supports the right of faroese indigenous peoples in continuing their whaling tradition that re-contextualize the cultural behavior of actors in international law. as it is generally known, the global society is quite diametrically separated between those who consider that such whaling activities are understandable in the context of research and tradition and those who strongly advocate the termination of whaling as represented by environment and nature non-governmental organizations. the topic presented in the last article may not genuinely link to the meaning of a global society as it discusses the financial policy which was taken in responding to the natural disaster. there may be a little connection, in which the economic problems faced by local residents of karangasem regency in bali, ii especially those who work in the tourism industry, occurred because of the decreasing number of foreign tourist visits. this article also establishes an argument that the social and cultural life of the local society should be taken into account when relevant authorities adopt a financial policy. i would like to express my gratitude to all authors, editors, and reviewers from many countries for their valuable contribution to the present edition. i do believe that there will be more high-quality papers to be submitted to, and publish by, ujlc for the next editions. editor in chief iii list of content preface.................................................................................................... i list of contents ................................................................................... iii the diaspora project on education sector: cultivating positive perception of indonesia through international education ratih indraswari and nyoman mas aryani................................... 123-140 exclusive distribution and non-compete clause in trade: transnational agreements in european union and united states noona hanni ............................................................................... 141-163 competition law and policy harmonisation: its relation to fair competition realisation in asean single aviation market a. a. b. n. a. surya putra ............................................................ 164-183 indigenous whaling tradition in faroe islands under international law olivia martha setyonugroho, i gede pasek eka wisanjaya and made maharta yasa .............................................................................. 184-203 has financial policy intervention benefited local society affected by natural disaster?: questioning the utilitarian approach ketut sukawati lanang putra perbawa ....................................... 204-222 | i 4 | udayana journal of law and culture vol. 01 no.1, january 2017 preface we are very grateful to launch the first edition of udayana journal of law and culture. this new journal offers a distinctive legal insight as it makes links to culture. ‘transforming local wisdom’ has been chosen as the central topic of this edition in order to give a wider space for writers to discover and reveal any values and wisdom that exist in various types of communities that may have impacts to the creation, implementation, and enforcement of law. this topic has also been expected to encourage authors to scrutinize, or even criticize any local practices that may not be regarded as wisdom for the reason of incompatibility with laws and regulations. the five articles published in this edition were selected from many articles that have been received by the editors. the first and second articles discuss the situation faced by indigenous people with regards to their constitutional and legal rights over the land and participation in economic activities. the first article discusses constitutional apllication and interpretation on the indigenous tenure lands that have been functionally and culturally occupied by brazilian natives while the second one talks about legal concept of sustainable tourism that is expected to empower the economic ability of indigenous people, both in bali-indonesia and australia, to harness the advantages of tourism. a comparative study between indonesia and australia is not only discussed in the second article but also deliberated in the third article, focuses on the incorporation of local wisdom into the consumer protection legal regime and argues that such incorporation encourages the receptiveness of globalization and the convergence of consumer protection in indonesia and australia. the forth article discovers that wisdom has been construed in legal manner creating a distinct asean human rights regime. in addition, it argues that local wisdom has been formalised in order to create a distinct sub regional human rights norms and mechanisms contextualising way of life of the southeast asian peoples. human rights in southeast asian context in the forth article may be linked with fundamental rights in the global and european contexts, as discussed in fifth article. beside elaborating the issue of fundamental rights, this essay also critically talks about the issue of local wisdom by arguing that the incorporation of local wisdom and philosophies that are traditional and typical for a limited group is in conflict with the idea that global justice requires the adoption of commonly accepted principles. we expect this edition will encourage academicians and practitioners all over the world to contribute their articles to the ujlc for the upcoming edition. lastly, we would like express our great appreciation to all authors, submissioners, and board of editors who are scholars from universities in indonesia, australia, the netherlands, and the united states of america, and also the editorial members for their kindly cooperation in the completion of the first ujlc edition. editor in chief ii e-issn 2549-0680 | iii e-issn 2549-0680 vol. 6, no. 2, july 2022, pp. 204-219 doi: https://doi.org/10.24843/ujlc.2022.v06.i02.p05 this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licenses/by/4.0/) 204 notary in indonesia: how are state fundamental values reflected in law and professional ethics? i gusti agung ika laksmi mahadewi* master of notary, faculty of law udayana university, bali, indonesia ni komang tari padmawati** bachelor of law, faculty of law udayana university, bali, indonesia i gusti agung mas rwa jayantiari*** faculty of law udayana university, bali, indonesia abstract in recent times, the public has concerns addressed to the position of notary due to cases of violations of law and code of ethics by notaries. this situation leads to a question on the internalization of state values and ethical principles by a notary. this paper aims at elaborating on the position of a notary in the indonesian legal system, and further, analyzing the reflection of pancasila values in law on notary and the code of ethics of notary. it is legal research that primarily analyzes the normative contents of applicable indonesian law and regulations that regulate the issue of a notary, namely articles of association of the indonesian notary association, code of ethics of notary, as well as relevant court decisions. this article concludes that the indonesian legal system granted notary a status as a public official with the authority to make authentic deeds and other authorities as intended in indonesian notary law. in addition, the legal system also requires notary, as a legal profession, to become a member of ikatan notaris indonesia (ini), the only legitimate notary association in indonesia. normatively, both indonesian notary law and the code of ethics of notary have adopted the values contained in the precepts of pancasila which in general require a notary to have good moral integrity, character, and personality; to uphold professional ethics; to prioritize services for the interests of the community and the state; to have social concerns; and, to carry out tasks without merely focused on economic benefits. keywords: code of ethics; indonesia; pancasila; personal integrity; public notary 1. introduction violations of the notary‟s code of ethics are a reality that often occurs in practice. intense competition along with the increasing number of notaries is seen as one of the main factors causing these violations.1 one form of legal violations committed by a notary in making a deed is to change, subtract, and eliminate the contents of the original/minute deed, * email/corresponding author: agungikalaksmi17@gmail.com ** email: taripadmawati03@gmail.com *** email: mas_jayantiari@unud.ac.id 1 yogi priyambodo and gunarto gunarto, “tinjauan terhadap pelanggaran kode etik jabatan notaris di kabupaten purbalingga,” jurnal akta 4, no. 3 (2017): 334. notary in indonesia: how are state fundamental values reflected in law and professional ethics? i gusti agung ika laksmi mahadewi, ni komang tari padmawati, i gusti agung mas rwa jayantiari 205 resulting in losses for other parties.2 against these violations, the notary can be subject to civil and administrative sanctions, and even further can be subject to criminal sanctions if the notary‟s actions meet the criminal elements. a notary is a legal profession that is very important in the indonesian legal system since they are public officials who are authorized to make authentic deeds. therefore, the public has expectations that notaries should behave well in carrying out their positions based on values, morals, and ethics to ensure their integrity. in the context of a nation‟s life, the concern for morality, ethics, and behavior of indonesian citizens is generally linked to the state ideological values of the republic of indonesia, namely pancasila. it can be argued that the legal professions in indonesia, including notaries, adhere to pancasila as the basic principle as well as a code of conduct.3 before carrying out the position, a notary is obliged to take an oath to be obedient and loyal to pancasila.4 besides, the articles of association of the ikatan notaris indonesia (indonesian notary association/ini) stipulates that ini is based on pancasila and the 1945 constitution of the republic of indonesia (indonesian constitution).5 further, the bylaws of ini also determine that the procedure for registering a notary in ini membership requires, among others, a statement letter to obey the articles of association, code of ethics, and other regulations set by ini.6 this can be interpreted that a notary who registers as a member of ini has realized that he/she must uphold pancasila values as a basic principle of ini. there has been previous research and studies that discuss the topic of ethical behavior of notaries. betty ivana prasetyawati and paramita prananingtyas suggest notaries always practice the code of ethics and related laws and regulations through good morality in order to develop honesty and self-skills, as well as to increase skills in their field of work.7 ahmad yani and taupiq qurrahman analyze the authority of ini‟s honorary council to impose sanctions for ethical violations by notaries in indonesia.8 with regards to the need for a notary to uphold pancasila, endang 2 maria magdalena barus, “pelanggaran hukum pidana yang dilakukan oleh notaris dalam membuat akta otentik” (master‟s thesis, notary study program, faculty of law university of north sumatra, 2010), 5; see also the decision of pekan baru administrative court no. 31/g/2018/ptun.pbr concerning falsification of letter. 3 see niru anita sinaga, “kode etik sebagai pedoman pelaksanaan profesi hukum yang baik,” jurnal ilmiah hukum dirgantara 10, no. 2 (2020): 16-26. 4 law no. 30 of 2004 concerning notary, art. 4. 5 the articles of association of the ikatan notaris indonesia (indonesian notary association/ini), lastly modified in 2015, art. 4. 6 bylaws of the ikatan notaris indonesia (indonesian notary association/ini), lastly modified in 2018, art.3 (3)(e). 7 betty ivana prasetyawati and paramita prananingtyas, “peran kode etik notaris dalam membangun integritas notaris di era 4.0,” notarius 15, no.1 (2022): 321. 8 ahmad yani and taupiq qurrahman, “the authority of the honorary council of the indonesian notary association in imposing sanctions for violation of the notary's code of ethics,” veteran law review 4, no. 1 (2021): 4. https://ejournal.upnvj.ac.id/index.php/velrev/issue/view/188 206 purwaningsih conducted research that analyzes the enforcement of indonesian notary law in the context of realizing a notary profession that reflects pancasila values.9 while previous studies focus on the violation of the code of ethics of notary and their sanctions, this paper aims to elaborate on a notary‟s position in the indonesian legal system, and further, assess how pancasila values and the notary ethics are reflected in the task of a notary. it reflects a legal research that primarily analyzes the normative contents of applicable indonesian law and regulations that regulate the issue of the notary, as well as relevant court decisions. besides, it also reads some relevant written documents, i.e. articles of association of ini and code of ethics of notary. while those primary written sources are further analyzed by reading secondary legal resources in the form of law journal articles, an interview with a notary was also conducted in order to get a clear interpretation of the code of ethics of notary. 2. result and analysis 2.1. the position of notary in the indonesian legal system 2.1.1. notary as public official and member of professional organization from a historical perspective, the notary may be regarded as one of the oldest legal professions in indonesia. in 1620, a notarium publicum was appointed as an official to make a deed, will, (testament), and other private documents.10 there is no doubt to classify a notary as a public official. the indonesian regulation no. 30 in 2004 concerning the position of notary (indonesian notary law) explicitly defines a notary as a public official with the authority to make authentic deeds and other authorities as intended in that law. even the constitutional court clarified that a notary is a state organ in a broad sense, although not in the sense of an institution as is customary in daily conversations.11 to implement his/her task, a notary has a stamp containing the state symbol of the republic of indonesia and in the space surrounding it; the name, the position, and the place of domicile as notary.12 a notary is obliged to be registered in a notary professional organization called ini.13 ini is the only legitimate notary association in indonesia.14 in 2005, persatuan notaris reformasi indonesia (pernori) and himpunan notaris indonesia (hni), two other associations for a notary in 9 endang purwaningsih, “penegakan hukum jabatan notaris dalam pembuatan perjanjian berdasarkan pancasila dalam rangka kepastian hukum,” adil: jurnal hukum 2, no. 3 (2011): 325. 10 rizki nurmayanti and akhmad khisni, “peran dan tanggung jawab notaris dalam pelaksanaan pembuatan akta koperasi,” jurnal akta 4, no. 4 (2017): 609-610. 11 decision of the constitutional court of the republic of indonesia no. 009014/puu-iii/2005, 127. 12 law no. 30 of 2004 concerning notary, art.16(k). 13 ibid., art. 82 (1) and (2). 14 ibid., art. 82. notary in indonesia: how are state fundamental values reflected in law and professional ethics? i gusti agung ika laksmi mahadewi, ni komang tari padmawati, i gusti agung mas rwa jayantiari 207 indonesia expressed their disappointment with the recognition of ini as the only legitimate association in indonesia.15 they tried to submit a petition before the constitutional court by, among others, justifying their freedom of association, assembly, and expression as guaranteed by the indonesian constitution and indonesian human rights law.16 the court denied the petition and admitted that the state has an interest in the existence of a single forum for a notary organization, by considering the fact that notary is a state organ in a broad sense and that almost all countries in the world adhere to the existence of a single notary organization.17 therefore, there is no other option for a notary to apply for membership in a notary association other than through ini. 2.1.2. notary supervisory and honorary assemblies a notary can be classified as a general officer as they are appointed by the government and given the authority to make authentic deeds.18 the law recognizes two notary assemblies. the first is majelis pengawas notaris (notary supervisory assembly), established by the indonesian notary law in 2004 while the second is majelis kehormatan notaris (notary honorary assembly), later created by the amendment of the indonesian notary law in 2014. the notary supervisory assembly has the authority and duty to carry out the guidance and supervision of notaries.19 the hierarchical structure of this assembly is divided into three levels:20 1. supervisory assembly, established by the minister of law and human rights (minister), and shall be domiciled in the capital city of the state of the republic of indonesia.21 2. regional supervisory assembly (provincial level), established by the director-general of legal administrative affairs on behalf of the minister and shall be domiciled in the capital city of the province.22 3. local supervisory assembly (regency/municipality level), established by the head of the regional office of the ministry of law and human rights on behalf of the minister and shall be domiciled in the regency/municipality.23 15 decision of the constitutional court of the republic of indonesia no: 009014/puu-iii/2005, 1. 16 ibid., 10. 17 ibid., 127. 18 haingo rabanirajona, “role of notary in abroad and indonesia,” jurnal akta 7, no. 4 (2020): 350-351. 19 law no. 30 of 2004 concerning notary, art. 1 (6). 20 regulation of the minister of law and human rights no. 16 of 2021 concerning organizational structure and working procedures, appointment and termination procedures, and budget of the notary supervisory assembly, art. 3. 21 ibid., art. 6. 22 ibid., art. 5. 23 ibid., art. 4. 208 the supervisory assembly consists of persons who are affiliated to/with the government, notary organizations, and experts/academics. it consists of 9 (nine) persons with 1 (one) chairman concurrently member, 2 (two) deputy chairman concurrently member, and 6 members. the election of the chairman and deputy chairman is carried out by musyawarah (deliberation). if the election by deliberation does not reach an agreement, the election is carried out by voting.24 the decisions of the notary supervisory assembly have several times been challenged before the court. for instance, there was a case when a client of a notary submitted a case before the district court of south jakarta, challenging the decision of the national notary supervisory assembly that strengthen the decision of the regional notary supervisory assembly of west java. he was disappointed with the decision that only impose a temporary suspension for (3) three months to a notary who commit a dishonest act, and issue a copy of the deed not based on the minutes of the deed. the court finally decided not to recognize the decision of the national notary supervisory assembly.25 the authority of the notary supervisory assembly has been reduced after the constitutional court declared in judgment no. 49/puu-x/2012 that it no longer has the authority to permit in case of suspicion of committing a criminal act, summons by investigators, public prosecutors or judges.26 differs from the abovementioned assembly, the notary honorary assembly is a body that authoritatively carries out supervision of notary and must approve or disapprove investigation and judicial process, on the taking of photocopy of minutes of deed and summons of a notary for attending the examination related to the deed or notary protocol that is held by a notary.27 the notary honorary assembly consists of national and regional assemblies. the national notary honorary assembly was established by the minister and shall be domiciled in the capital city of the state of the republic of indonesia while the regional honorary assembly was established by the director-general of legal administrative affairs on behalf of the minister and shall be domiciled in the capital city of the province.28 similar to the previous assembly, the notary honorary assembly consists of persons who are affiliated to/with the government, notary organizations; and experts/academics. however, it only consists of 7 (seven) persons with 1 (one) chairman concurrently member; 1 (one) deputy chairman concurrently member; and 5 members. the election of the chairman and deputy chairman is carried out by musyawarah (deliberation) 24 law no. 30 of 2004 concerning notary, art. 7. 25 see for example decision of district court of south jakarta no. 20/pdt.g/2017/pn jkt.sel, dated 24 october 2017, 4. 26 dewa nyoman rai asmara putra and sagung putri m. e. purwani, “pengawasan notaris oleh majelis pengawas notaris daerah pasca putusan mk no. 49/puu-x/2012,” jurnal magister hukum udayana 5, no. 4 (2016): 801. 27 regulation of the minister of law and human rights no. 17 of 2021 concerning organizational structure and working procedures, appointment and termination procedures, and budget of the notary honorary assembly, art. 1(1). 28 ibid., art. 3. notary in indonesia: how are state fundamental values reflected in law and professional ethics? i gusti agung ika laksmi mahadewi, ni komang tari padmawati, i gusti agung mas rwa jayantiari 209 and in the event that the election by deliberation does not reach an agreement, the election is carried out by voting.29 2.2. pancasila values and code of ethics in implementing the task of notary 2.2.1. rights and obligations of the notary notary‟s position is intentionally formed by the state to carry out some of the state‟s authorities and duties in the field of law, especially civil law and the field of evidentiary law.30 the term “notary” can be found in various norms or expert opinions.31 indonesian notary law defines notary as “a public official who is authorized to make an authentic deed and has another authority as referred to in this law or under other laws.”32 as an authorized official to make an authentic deed, the notary has a moral burden, because an authentic deed is categorized as having perfect proving power. in consequence, a notary must have a good personality when compiling an authentic deed. according to the principle of pacta sunt servanda as stated in article 1338 of the indonesian civil code, the agreement made by the parties, including in the form of an authentic deed, applies as law to them. this also reflects the principle of freedom of contract. however, the phrase „freedom‟ does not imply absolute freedom in the making of an agreement, precisely in that freedom, there are limits that should not be exceeded.33 the existence of these limits implies that the notary needs to uphold personal integrity in authenticating the deed, even though the parties, or one of the parties, promise an economic benefit to the notary if the notary is willing to act beyond these limits. in that position, the intelligence of a notary is tested by always being guided by the laws and regulations and the code of ethics. the ini‟s code of ethics of notary sets obligations for notary, among others:34 1. possession of good morals, character, and personality; 2. the ability to respect and uphold the dignity of the notary‟s position; 3. the ability to maintain and defend the honor of the association; 29 ibid., art. 4. 30 i gusti agung ika mahadewi and i wayan novy purwanto, “tanggung jawab notaris pengganti yang melakukan perbuatan melawan hukum dalam pembuatan akta autentik,” acta comitas: jurnal hukum kenotariatan 6, no. 2 (2021): 451. 31 m. syahrul borman, “kedudukan notaris sebagai pejabat umum dalam perspektf undang-undang jabatan notaris,” jurnal hukum dan kenotariatan 3, no.1 (2019): 76. 32 law no. 30 of 2004 concerning notary, art.1(1). 33 yohannes gunawan. kajian ilmu hukum tentang kebebasan berkontrak, dalam butir-butir pemikiran dalam hukum (bandung: refika aditama, 2008), 257. 34 code of ethics of notary, art. 3. this article stipulates 18 obligations, but for the relevance of this paper, authors only mention 11 out of those 18 obligations. 210 4. the ability to be honest, independent, impartial, trustworthy, thorough, and full of responsibility based on the laws and regulations and the contents of the notary‟s oath of office; 5. the ability to improve knowledge and professional expertise that has been owned, not limited to legal and notarial knowledge; 6. the willingness to prioritize the service of the community and state‟s interests; 7. the willingness to provide services (deeds making and other authorities) without collecting honorarium for those who cannot afford them; 8. implementation and compliance with all provisions regarding the honorarium set by the association; 9. the ability to create an atmosphere of kinship and togetherness in carrying out official duties and daily activities, as well as good treatment towards colleagues, respect towards each other, appreciation towards each other, willingness to help each other, and the constant initiative to establish communication and friendship; 10. the willingness to treat every client well, regardless of their economic background and/or social status; 11. the ability to make a deed within a reasonable number of limits to carry out the laws and regulations, especially the law regarding the notary‟s position and code of ethics. notaries are entitled to receive an honorarium for legal services based on the economic and sociological value of each deed.35 the economic value as referred to in paragraph (2) is determined by the object/value of each deed. table 1 economic value of honorarium of notary36 deed value (gold gram equivalent) honorarium (%) up to 100,000,000,00 idr (one hundred million rupiah) 2,5% (two-point five percent); over 100,000,000,00 idr (one hundred million rupiah) up to 1,000,000,000,00 idr (one billion rupiah) 1,5% (one-point five percent); over 1,000,000,000,00 idr (one billion rupiah) the honorarium received is according to the agreement between the notary and the parties does not exceed 1% of the object for which the deed is made 35 law no. 30 of 2004 concerning notary, art. 36 (1) and (2). 36 ibid., art, 36 (3). notary in indonesia: how are state fundamental values reflected in law and professional ethics? i gusti agung ika laksmi mahadewi, ni komang tari padmawati, i gusti agung mas rwa jayantiari 211 table 1 shows that a notary can get a reward in the form of money for the services provided based on the economic value of a deed, classified into three levels. differing from the standard applicable for economic value, the sociologic value of a notary service will be determined according to the social function of the object each deed with a maximum honorarium is 5,000,000,00 idr (five million rupiah).37 whatsoever, the rules that determine the honorarium of notaries are based on the economic value and sociological value of each deed made and are not always considered unsatisfactory.38 2.2.2. pancasila values the term “pancasila” is sourced from sanskrit words. panca means five, sila means principles/precept that deals with good or important attitude.39 it comprises five principles/precepts, namely: belief in one supreme god; just and civilized humanity; indonesian unity; democracy led by wisdom in deliberation/representative; and social justice for all indonesian people.40 these five precepts/principles are explicitly mentioned in the preamble of the indonesian constitution.41 each of them is not independent and they create a causal relationship with the state, where the state takes part as a supporter of relations, while god, human, and people take part as the basis of relations.42 the principles of pancasila were intended to be the lived values of humanity and became the founding moral and legal basis of the nation.43 pancasila is then officially admitted as the basis of the state, ideology, and philosophy of the nation of indonesia.44 consequently, pancasila can be considered as the basis for determining whether the law is valid or not, thus a violation of pancasila may cause such law to be declared null and void.45 37 ibid., art. 36 (4). 38 see this discussion in i ketut adi gunawan, i nyoman sumardika, ida ayu putu widiati, “penetapan honorarium notaris dalam praktik pelaksanaan jabatan notaris,” jurnal konstruksi hukum 1, no. 2 (2020): 371. 39 machful indra kurniawan, “pancasila as a basis for nation‟s character education,” advances in social science, education and humanities research 125, (2018): 269. 40 see yuliana, “the philosophy of pancasila in the religious perspective in indonesia during the covid-19 pandemic,” pancasila jurnal keindonesiaan 1, no.2 (2021): 146. 41 the 1945 constitution of the republic of indonesia, preamble, para. 4. 42 seno wibowo gumbira, jamal wiwoho, “the implications of the pancasila-based principles of local democracy in indonesia,” padjajaran jurnal ilmu hukum 6, no. 2 (2019): 375. 43 althien j. pesurnay, “pancasila ideology as a field of interpretation. in m. amini, m. yusuf, & v. i. yulianto. (eds.),” proceeding of the 2nd international conference on south east asia studiesugm digital press social sciences and humanities 1, (2018): 162. 44 milton thorman pardosi, septiana dwiputri maharani, misnal munir, “the core of the esssence of humans of pancasila according to notonagoro: autonomous and responsible,” asian journal of social science studies 4, no. 4 (2019): 134. 45 david tan, “controversial issues on the making of notarial deed containing chained promise (beding berantai) with the freedom of contract principle,” journal of indonesian legal studies 4, no. 2 (2019): 321. 212 pancasila is the normative ideal of the administration of the nation and state. therefore, the vision and direction in implementing the life of the nation and state must be in the context of realizing a divine, humane, united, democratic, and just life.46 2.2.3. code of ethics of notary ethics are generally concerned with what is morally good and bad and morally right and wrong, while the code of ethics47 of each profession is generally sui generis, which means that a code of ethics that applies to one profession cannot apply equally to other professions, even to the same legal profession. the code of ethics for notaries is generally established in all countries in the world. as an example, in montenegro, the code of notary ethics prescribes the principles, rules, and procedure for determining the violation of notaries‟ professional and ethical conduct, with the aim of impeccable performance of notarial duties, as well as to preserve and improve the dignity of notaries as a service of the public. in indonesia, ini established a notary code of ethics in 2005 which was later amended in 2015. this code of ethics was compiled as a moral code that must be applied by ini members who are expected to maintain the prestige of the position of a notary and the dignity of ini. the points of ethics contained are expected to be a guide for notaries to behave both in office and daily life in order to ensure the morality of the office and notary associations. this code of ethics, among others, comprises a set of obligations and prohibitions,48 means of sanctions,49 and enforcement mechanisms.50 differs from the notary supervisory assembly and notary honorary assembly that are established by indonesian notary law, as explained in section 2.1.2, the internal association based-enforcement of the ini code of ethics is conducted by dewan kehormatan (ini honorary council). this council is an independent and impartial body that is established and functions to enforce the code of ethics, dignity, and worth of notaries.51 whatsoever, the authority of the ini honorary council in imposing sanctions for ethical violations by notary was considered weak.52 the way people including notaries behave generally contains three dimensions; knowledge, skills, and desires.53 desires in the context of this 46 agus riyanto, “hidupnya nilai-nilai pancasila dalam pembentukan perundangundangan,” https://business-law.binus.ac.id/2019/01/29/hidupnya-nilai-nilai-pancasiladalam-pembentukan-perundang-undangan/. 47 britannica.com, “ethics”, https://www.britannica.com/topic/ethics-philosophy. 48 code of ethics of notary, chapter iii. 49 ibid., chapter iv. 50 ibid., chapter v. 51 ibid., art. 1 (8). 52 ahmad yani and taupiqqurrahman, op.cit., 11. 53 see herlin budiono. kumpulan tulisan hukum perdata di bidang kenotariatan (bandung: citra aditya bakti, 2015), 145. https://business-law.binus.ac.id/2019/01/29/hidupnya-nilai-nilai-pancasila-dalam-pembentukan-perundang-undangan/ https://business-law.binus.ac.id/2019/01/29/hidupnya-nilai-nilai-pancasila-dalam-pembentukan-perundang-undangan/ https://www.britannica.com/topic/ethics-philosophy notary in indonesia: how are state fundamental values reflected in law and professional ethics? i gusti agung ika laksmi mahadewi, ni komang tari padmawati, i gusti agung mas rwa jayantiari 213 code of ethics are the desire of a certain person who takes action without taking into account the responsibilities of a professional notary. problems that may arise regarding violations of the code of ethics cannot be separated from the dynamics of various community interests, especially business interests whose main focus is profit. therefore, a notary must adhere to the indonesian notary law and the notary code of ethics, so as not to be influenced by business interests and to obtain an authentic deed under the provisions of the legislation. pria dharsana, a notary, explained that the behavior of a notary must be rooted in morals in the teachings of pancasila values so that the ideology that is embedded and practiced daily includes carrying out the position of a notary under the belief in pancasila.54 in a number of cases,55 notaries experience legal problems that stem from violations of the notary's code of ethics due to a lack of knowledge and inability to properly interpret the contents of the code of ethics itself. 2.2.4. reflection notaries in carrying out their work need to understand the political, economic, and social development, as well as the dynamics in business life in order to contribute to better changes for the community. the responsibilities and professional ethics of a notary are closely related to morals and integrity, thus if a notary does not have good integrity and morals, a notary cannot be said to have good professional responsibilities and ethics.56 prior to carrying out the position, a notary is obliged to take oath in accordance with his/her religion before the minister or appointed official,57 which reads as follows: “i swear/promise: that i will be obedient and loyal to the republic of indonesia, pancasila and the 1945 constitution of the republic of indonesia, the notary law, and other laws and regulations. that i will carry out my position with trust, honesty, thoroughness, independence, and impartiality. that i will maintain my attitude, behavior, and will carry out my obligations under the professional code of ethics, my honor, dignity and responsibility as a notary. that i will keep the contents of the deed and information confidential 54 i made pria dharsana, “kode etik notaris,” interview by agung ika laksmi, denpasar, march 21, 2022. 55 see for example, desy selviany, “kasus mafia tanah nirina zubir libatkan 2 ppat jakarta barat dan 1 notaris tanggerang,” https://wartakota.tribunnews.com/2021/11/17/kasus-mafia-tanah-nirina-zubir-libatkan2-ppat-jakarta-barat-dan-1-notaris-tangerang. 56 eudea adeli arsy, hanif nur widhiyanti, patricia audrey ruslijanto, “tanggung jawab notaris terhadap akta yang cacat hukum dan tidak sesuai dengan ketentuan pembuatan akta dalam undang-undang jabatan notaris,” jurnal bina mulia hukum 6, no.1 (2021): 134. 57 law no. 30 of 2004 concerning notary, art. 4(1). https://wartakota.tribunnews.com/2021/11/17/kasus-mafia-tanah-nirina-zubir-libatkan-2-ppat-jakarta-barat-dan-1-notaris-tangerang https://wartakota.tribunnews.com/2021/11/17/kasus-mafia-tanah-nirina-zubir-libatkan-2-ppat-jakarta-barat-dan-1-notaris-tangerang 214 obtained in the exercise of my position. that i can be appointed to this position, both personally directly or indirectly, under what name or pretext ever, never and will not give or promise something to anyone.” within a period of no later than 60 (sixty) days from the date of taking the notarial oath/promise, a notary must carry out their positions according to what he/she has been oathed/promised. besides, he/she has to submit minutes of notary oath/promise to the minister, notary association, and the regional supervisory assembly. in addition, he/she has to submit the office address, a sample of signature and initials, as well as the stamp or seal of the office of a notary in red color to the minister and other officials responsible for agrarian affairs, the notary association, the head of the district court, the regional supervisory assembly, and the regent/mayor where the notary is appointed.58 notaries who violate those provisions may be subject to sanctions in the form of a written warning; temporary suspension; honorable discharge; or dishonorable dismissal.59 the code of ethics makes clear that honorable discharge or dishonorable dismissal against a notary by the government of indonesia entails a termination as a member of ini.60 the five precepts/principles of pancasila as explained in section 2.2.2 are implicitly enshrined in the obligation of a notary as described in section 2.2.1. for example, a notary who has good morals, character, and personality, as well as honesty reflects the first precept, as the belief in god and religious values encourage human beings/religious fellows to implement those values. next, an attitude of creating an atmosphere of kinship and togetherness; a well treatment, respect, and appreciation towards each other; as well as the initiative to establish communication and friendship can be considered as a reflection of the second precept, which is just and civilized humanity. additionally, the notary‟s act of prioritizing the service of the interests of the community and the state; providing services for making deeds and other authorities for people who cannot afford it without collecting honoraria; and the act of providing equal treatment to every client regardless of their economic status and/or social status reflects the fifth precept, namely social justice for all indonesian people. moreover, the use of musyawarah (deliberation) for the election of the chairman and deputy chairman of both the notary supervisory assembly and notary honorary assembly as discussed in section 2.1.2 reflected the fourth precept of pancasila. endang purwaningsih suggested that a notary should carry out the notary profession to the extent of the authority in the indonesian notary law consistently. besides, she expects that a notary should uphold professional ethics, have solid moral integrity, honest and aware of the limits of their authority, have an essential sense of justice, not moneyoriented, and not merely create formal evidence to pursue legal certainty but 58 ibid., art. 7(1). 59 ibid., art. 7(2). 60 code of ethics of notary, art. 13. notary in indonesia: how are state fundamental values reflected in law and professional ethics? i gusti agung ika laksmi mahadewi, ni komang tari padmawati, i gusti agung mas rwa jayantiari 215 ignore a sense of justice.61 the implementation of this notarial code of ethics certainly needs to be accompanied by good morality by the values of pancasila so that injustice does not occur as a result of granting property status, rights, and obligations that are not following the rules and principles of law and justice, which results in destroying the public order and legal certainty.62 the notary personality is characterized by the implementation of his/her duties which is inspired by pancasila.63 strict supervision and guidance on the work of a notary as indicated by the establishment of the supervisory assembly, honorary assembly, and honorary council as explained in sections 2.1.2 and 2.2.3, is intended to protect notaries from possible ethical and legal violations. in this context, legal protection for notaries is also needed to maintain a balance against such strict supervision. the concept of legal protection for notaries cannot be separated from the concept of law in general, which must be interpreted as protection established by law. as a framework of thought based on pancasila, the principle of indonesian legal protection is the principle of recognizing and protecting human dignity which is based on the principle of a state of law based on pancasila. the protection provided by the law is the protection of the legal rights that are owned which in its enforcement requires legal efforts, both judicial and non-judicial.64 in making an authentic deed, notaries need to pay attention to aspects of logic (right/wrong), ethics (good/bad), and aesthetics (proper/improper). on one hand, notaries generally use logical reasoning to determine whether an empirical fact put forward by the parties is substantively correct and can then be written into an authentic deed. on the other hand, if the empirical facts that are made into an authentic deed are a falsity, subsequently the substance contained in the deed cannot be accounted for. from the ethical aspect, notaries should pay attention to the good/bad aspects of making a deed. this is where the role of pancasila is placed in strengthening the personality of a notary to carry out his/her profession that must reflect the values of truth and goodness. therefore, the practice of making deeds in indonesia needs to be adapted to the perspective and way of life of the state following the five precepts of pancasila. 61 endang purwaningsih, op.cit., 334. 62 eka febriyanti, “tanggung jawab moral notaris dalam menjalankan tugas jabatan sesuai dengan sumpah jabatan” (master‟s thesis, notary study program, faculty of law, sriwijaya university, 2019), 11. 63 see jannatha ramadhona, “peran dewan kehormatan daerah terhadap pelanggaran kode etik dalam pemasangan papan nama notaris di kabupaten kampar (master‟s thesis, notary study program, faculty of law, islamic university of indonesia, 2021), 58. 64 see the discussion in this paragraph in intan puspita sari, “budaya hukum notaris dalam implementasi undang-undang jabatan notaris di daerah istimewa yogyakarta” (master‟s thesis, notary study program, faculty of law, islamic university of indonesia, 2018), 401-403. 216 3. conclusion under the indonesian legal system, a notary is given status as a public official who is specifically authorized to make authentic deeds and other authorities as intended in indonesian notary law. aside from that, the notary as a legal professional is also obliged to become a member of ini, the only legitimate notary association in indonesia. this dual role entails that a notary has to obey the indonesian law and regulations as well as commit to implementing the internal rules established by the association, including the code of ethics. similar to indonesian citizens in general, as well as other legal professions, notaries are also obliged to implement the values of the state ideology, namely pancasila. normatively, both indonesian notary law and the code of ethics of notary have adopted the values contained in the precepts of pancasila which in general require a notary to have good moral integrity, character, and personality; to uphold professional ethics; to treat clients humanely; to prioritize services for the interests of the community and the state; to have social concerns; and to carry out tasks without merely focused on economic benefits. bibliography book budiono, herlin. kumpulan tulisan hukum perdata di bidang kenotariatan. bandung: citra aditya bakti, 2015. gunawan, yohannes. kajian ilmu hukum tentang kebebasan berkontrak, dalam butir-butir pemikiran dalam hukum. bandung: refika aditama, 2008. journal & proceeding article arsy, eudea adeli, hanif nur widhiyanti, patricia audrey ruslijanto. “tanggung jawab notaris terhadap akta yang cacat hukum dan tidak sesuai dengan ketentuan pembuatan akta dalam undang-undang jabatan notaris.” jurnal bina mulia hukum 6, no. 1 (2021): 130-140. https://doi.org/10.23920/jbmh.v6i1.324. borman, m. s. “kedudukan notaris sebagai pejabat umum dalam perspektf undang-undang jabatan notaris.” jurnal hukum dan kenotariatan 3, no. 1 (2019): 74-83. http://dx.doi.org/10.33474/hukeno.v3i1.1920. gunawan, i ketut adi, i nyoman sumardika, ida ayu putu widiati. “penetapan honorarium notaris dalam praktik pelaksanaan jabatan notaris.” jurnal konstruksi hukum 1, no. 2 (2020): 369373. https://doi.org/10.22225/jkh.2.1.2547.369-373. kurniawan, machful indra. “pancasila as a basis for nation‟s character education.” advances in social science, education and humanities research 125, (2018): 298-270. https://doi.org/10.2991/icigr17.2018.64. https://doi.org/10.23920/jbmh.v6i1.324 http://dx.doi.org/10.33474/hukeno.v3i1.1920 https://doi.org/10.22225/jkh.2.1.2547.369-373 https://doi.org/10.2991/icigr-17.2018.64 https://doi.org/10.2991/icigr-17.2018.64 notary in indonesia: how are state fundamental values reflected in law and professional ethics? i gusti agung ika laksmi mahadewi, ni komang tari padmawati, i gusti agung mas rwa jayantiari 217 mahadewi, i gusti agung ika and i wayan novy purwanto. “tanggung jawab notaris pengganti yang melakukan perbuatan melawan hukum dalam pembuatan akta autentik.” acta comitas: jurnal hukum kenotariatan 6, no. 2 (2021): 450-460. https://doi.org/10.24843/ac.2021.v06.i02.p18. nurmayanti, rizki and akhmad khisni. “peran dan tanggung jawab notaris dalam pelaksanaan pembuatan akta koperasi.” jurnal akta 4, no. 4 (2017): 609-622. https://dx.doi.org/10.30659/akta.v4i4.2504. pardosi, milton thorman, septiana dwiputri maharani, misnal munir. “the core of the esssence of humans of pancasila according to notonagoro: autonomous and responsible.” asian journal of social science studies 4, no. 4 (2019): 129-135. https://doi.org/10.20849/ajsss.v4i4.696. pesurnay, althien j. “pancasila ideology as a field of interpretation, in m. amini, m. yusuf, & v. i. yulianto. (eds.)” proceeding of the 2nd international conference on south east asia studies, ugm digital press social sciences and humanities 1 (2018): 161–170. https://doi.org/10.29037/digitalpress.41322 prasetyawati, betty ivana and paramita prananingtyas. “peran kode etik notaris dalam membangun integritas notaris di era 4.0.” notarius 15, no.1 (2022): 310-323. https://doi.org/10.14710/nts.v15i1.46043. priyambodo, y. and gunarto gunarto. “tinjauan terhadap pelanggaran kode etik jabatan notaris di kabupaten purbalingga.” jurnal akta 4, no. 3 (2017): 331-338. http://dx.doi.org/10.30659/akta.v4i3.1805. purwaningsih, endang. “penegakan hukum jabatan notaris dalam pembuatan perjanjian berdasarkan pancasila dalam rangka kepastian hukum.” adil: jurnal hukum 2, no. 3 (2011): 323-336. https://doi.org/10.33476/ajl.v2i3.846. putra, dewa nyoman rai asmara and sagung putri m. e. purwani. “pengawasan notaris oleh majelis pengawas notaris daerah pasca putusan m.k.no. 49/puu-x/2012.” jurnal magister hukum udayana (udayana master law journal) 5, no. 4 (2017): 783-804. https://doi.org/10.24843/jmhu.2016.v05.i04.p11. rabanirojana, haingo. “role of notary in abroad and indonesia.” jurnal akta 7, no. 4 (2020): 343-358. http://dx.doi.org/10.30659/akta.v7i4.12900. sinaga, niru anita. “kode etik sebagai pedoman pelaksanaan profesi hukum yang baik.” jurnal ilmiah hukum dirgantara 10, no. 2 (2020): 1-34. https://doi.org/10.35968/jh.v10i2.460. wibowo gumbira, seno and jamal wiwoho. “the implications of the pancasila-based principles of local democracy in indonesia.” padjajaran jurnal ilmu hukum 6, no. 2 (2019): 361-378. https://doi.org/10.22304/pjih.v6n2.a8. tan, david. “controversial issues on the making of notarial deed containing chained promise (beding berantai) with the freedom of contract principle.” journal of indonesian legal studies 4, no. 2 (2019): 315-338. https://doi.org/10.15294/jils.v4i2.31091. https://doi.org/10.24843/ac.2021.v06.i02.p18 https://dx.doi.org/10.30659/akta.v4i4.2504 https://doi.org/10.20849/ajsss.v4i4.696 https://doi.org/10.29037/digitalpress.41322 https://doi.org/10.14710/nts.v15i1.46043 http://dx.doi.org/10.30659/akta.v4i3.1805 https://doi.org/10.33476/ajl.v2i3.846 https://doi.org/10.24843/jmhu.2016.v05.i04.p11 http://dx.doi.org/10.30659/akta.v7i4.12900 https://doi.org/10.35968/jh.v10i2.460 https://doi.org/10.22304/pjih.v6n2.a8 https://doi.org/10.15294/jils.v4i2.31091 218 yani, ahmad and taupiq qurrahman. “the authority of the honorary council of the indonesian notary association in imposing sanctions for violation of the notary's code of ethics.” veteran law review 4, no. 1 (2021): 1-13. http://dx.doi.org/10.35586/velrev.v4i1.2696. yuliana, yuliana. “the philosophy of pancasila in the religious perspective in indonesia during the covid-19 pandemic.” pancasila jurnal keindonesiaan 1, no. 2 (2021): 141-51. https://doi.org/10.52738/pjk.v1i2.29. thesis/dissertation barus, m. m. “pelanggaran hukum pidana yang dilakukan oleh notaris dalam membuat akta otentik.” master‟s thesis, notary study program, faculty of law, university of north sumatra, 2010. febriyanti, eka. “tanggung jawab moral notaris dalam menjalankan tugas jabatan sesuai dengan sumpah jabatan.” master‟s thesis, notary study program, faculty of law, sriwijaya university, 2019. ramadhona, janatha. “peran dewan kehormatan daerah terhadap pelanggaran kode etik dalam pemasangan papan nama notaris di kabupaten kampar.” master‟s thesis, notary study program, faculty of law, islamic university of indonesia, 2021. sari, intan puspita. “budaya hukum notaris dalam implementasi undangundang jabatan notaris di daerah istimewa yogyakarta.” master‟s thesis, notary study program, faculty of law, islamic university of indonesia, yogyakarta, 2018. legal documents indonesia. the 1945 constitution of the republic of indonesia. indonesia. indonesian civil code. indonesia. law no. 30 of 2004 concerning notary, lastly amended by law no. 2 of 2014. indonesia. regulation of the minister of law and human rights no. 16 of 2021 concerning organizational structure and working procedures, appointment and termination procedures, and budget of the notary supervisory assembly. indonesia. regulation of the minister of law and human rights no. 17 of 2021 concerning organizational structure and working procedures, appointment and termination procedures, and budget of the notary honorary assembly. other documents indonesian notary association, articles of association, lastly amended in 2015. indonesian notary association, bylaws, lastly amended in 2018. indonesian notary association, code of ethics of notary (2005), lastly amended in 2015. interview pria dharsana, i made. “kode etik notaris.” interview by agung ika laksmi, denpasar, march 21, 2022. https://ejournal.upnvj.ac.id/index.php/velrev/issue/view/188 https://ejournal.upnvj.ac.id/index.php/velrev/issue/view/188 http://dx.doi.org/10.35586/velrev.v4i1.2696 https://doi.org/10.52738/pjk.v1i2.29 notary in indonesia: how are state fundamental values reflected in law and professional ethics? i gusti agung ika laksmi mahadewi, ni komang tari padmawati, i gusti agung mas rwa jayantiari 219 case law constitutional court of the republic of indonesia. decision no: 009014/puu-iii/2005. district court of south jakarta. decision no. 20/pdt.g/2017/pn jkt.sel. pekan baru administrative court. decision no: 31/g/2018/ptun.pbr. website content singer, peter. “ethics.” britannica.com. 2021 https://www.britannica.com/topic/ethics-philosophy. riyanto, agus. “hidupnya nilai-nilai pancasila dalam pembentukan perundang-undangan.” 2019 https://businesslaw.binus.ac.id/2019/01/29/hidupnya-nilai-nilai-pancasila-dalampembentukan-perundang-undangan/. https://www.britannica.com/topic/ethics-philosophy https://business-law.binus.ac.id/2019/01/29/hidupnya-nilai-nilai-pancasila-dalam-pembentukan-perundang-undangan/ https://business-law.binus.ac.id/2019/01/29/hidupnya-nilai-nilai-pancasila-dalam-pembentukan-perundang-undangan/ https://business-law.binus.ac.id/2019/01/29/hidupnya-nilai-nilai-pancasila-dalam-pembentukan-perundang-undangan/ e-issn 2549-0680 vol. 7, no. 1, january 2023, pp. 43-58 doi: https://doi.org/10.24843/ujlc.2023.v07.i01.p03 this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licenses/by/4.0/) 43 towards quality and sustainable tourism in bali: should the regional master plan be adjusted? i dewa gede palguna* faculty of law, udayana university, denpasar, indonesia anak agung gede duwira hadi santosa** faculty of law, udayana university, denpasar, indonesia made maharta yasa*** faculty of law, udayana university, denpasar, indonesia i gede pasek pramana**** faculty of law, udayana university, denpasar, indonesia abstract bali is the area in indonesia that is most affected economically due to the paralysis of the tourism industry during the covid-19 pandemic. consequently, tourism development programs designed by the government faced many obstacles in their implementation. this article discusses how the concept of quality and sustainable tourism are incorporated into the tourism master plan of the bali province 2015-2029. further, it evaluates the implementation of the master plan during the covid-19 pandemic. this writing is designed based on legal research that applies a policy-oriented approach. the research collected and analyzed primary sources in the form of law, regulation, and policy at the national and regional levels, as well as secondary sources that are available in textbooks, journal articles, and website content. a series of qualitative interviews and a focus group discussion were conducted to deepen understanding of legal and non-legal matters. this article suggested that even though the concept of quality and sustainable tourism has been incorporated into the aforementioned master plan, the document implies a contradiction between the vision that desires to apply the concept and the goals and objectives which tend to support quantity tourism. the qualitative evaluation indicated that the master plan could not be appropriately implemented and requires an adjustment to bring in again the vision into the implementing policy adopted by the provincial government. keywords: quality and sustainable tourism; master plan; policy; bali. 1. introduction the covid-19 pandemic has adversely impacted the tourism sector.1 policies of lockdown, closed borders, restrictions, and isolation adopted by many countries worldwide paralyzed this sector tragically. a promising hope was raised when the vaccination program and implementation of health * email/corresponding author: dewa_palguna@unud.ac.id ** email: agung_santosa@unud.ac.id ***email: maharta_yasa@unud.ac.id ***email: pasek_pramana@unud.ac.id 1 noga collins-kreiner and yael ram, “national tourism strategies during the covid19 pandemic,” annals of tourism research 89 (2021): 2. https://doi.org/10.24843/ujlc.2023.v07.i01.p01 http://creativecommons.org/licenses/by/4.0/ mailto:dewa_palguna@unud.ac.id mailto:agung_santosa@unud.ac.id mailto:maharta_yasa@unud.ac.id mailto:pasek_pramana@unud.ac.id towards quality and sustainable tourism in bali: should the regional master plan be adjusted? i dewa gede palguna, anak agung gede duwira hadi santosa, made maharta yasa, i gede pasek pramana 44 protocols gradually increased the confidence of tourism stakeholders to restart their activities. when the immigration border began to reopen, efforts to restore the tourism sub-systems and resume tourism-related business were intensified. in accelerating the tourism economy recovery, governments in tourist destinations plan a series of initiatives.2 it cannot be denied that economic policy response to covid-19 influences tourism recovery.3 tourism policy is not merely about the concern for economic interests. it can be described as measures adopted and actions taken by the government to regulate the ecological, socio-cultural, and economic impacts of the tourism industry.4 as tourism relies on resources available in tourism destinations (e.g., environment and socio-cultural aspects), policy development, implementation process, and long-term strategic planning require the participation of stakeholders to bring about sustainable tourism.5 the formulation and implementation of sustainable tourism policies have been subjected to significant uncertainties, especially in light of globalization trends that have impacted local government decisions.6 bali is a world tourism destination that was significantly affected by the pandemic. data in september 2021, a year and a half after the pandemic, shows that bali is the most affected region in indonesia experienced idr 51 trillion in gross domestic product (gdp) losses.7 bali faced a dramatic decline in the economy since 60% of its gdp is associated with the tourism industry.8 local residents expected the tourism recovery policy in bali would spur the economy by stimulating the chains of the tourism industry. the tourism recovery efforts are obviously conducted without comprehensive evaluation by tourism stakeholders in bali. also, there seems to be neither introspection nor reflection on bali's economic, social, cultural, and environmental resilience in dealing with unexpected situations. in this context, there is a need to evaluate the bali tourism development plan. this article discusses how the concept of quality and sustainable tourism are incorporated into the tourism master plan of the bali province 2015-2029 (bali’s tourism master plan). further, it evaluates the 2 jose weng chou wong and ivan ka wai lai, “the mechanism influencing the residents’ support of the government policy for accelerating tourism recovery under covid-19,” journal of hospitality and tourism management 52 (2022): 219. 3 luke okafor, usman khalid, and sasidaran gopalan, “covid-19 economic policy response, resilience and tourism recovery,” annals of tourism research empirical insights 3, no. 2 (2022): 2. 4 see jenny suno wu, pete barbrook-johnson, and xavier font, “participatory complexity in tourism policy: understanding sustainability programmes with participatory systems mapping,” annals of tourism research 90, (2021): 2. 5 yi guo, jinbo jiang, and shengchao li, “a sustainable tourism policy research review,” sustainability 11, no. 11 (2019): 10. 6 ibid., 11. 7 ya-yen sun et.al, “road to recovery: assessing job risk and the impact on the most vulnerable in indonesia’s pandemic-hit tourism industry,” research report, the australiaindonesia centre (2021), 12. 8 maela madel l. cahigas et.al, “factors affecting visiting behavior to bali during the covid-19 pandemic: an extended theory of planned behavior approach,” sustainability 14 (2022): 2. udayana journal of law and culture vol. 7 no. 1, january 2023 45 implementation of bali’s tourism master plan during the covid-19 pandemic. the evaluation results will be used to propose a recommendation for adjusting the master plan. it is legal research that applies a policy-oriented approach. primary sources are obtained from law, regulation, and policy at the national and regional levels, while secondary sources are taken from relevant books, journal articles, and website content. the research carried out a series of qualitative interviews on august 18, 2022, with officers of the bali provincial tourism office, the legal bureau of the regional secretariat of bali province, the secretariat of the regional people's representative council of the province of bal, and bali tourism promotion agency. to comprehend the research analysis, a face-to-face (offline) focus group discussion (fgd) was organized by re-inviting the interviewees and other relevant stakeholders, which took place in badung, bali, on september 11, 2022. some previous studies have inquired about the topic discussed in the present paper. wu et.al (2021) evaluated the sustainability commitment program implemented by the barcelona provincial government in spain by using the method of participatory systems mapping (psm) in a participatory complexity approach to tourism policy evaluation.9 guo et.al (2019) scrutinized sustainable tourism policy research by using the analytical framework of a systematic review.10 collins-kreiner and ram (2021) compared measures adopted by seven countries, representing four different continents, in responding covid-19 pandemic. the study suggested that those countries have not formalized comprehensive exit strategies and rehabilitation plans for the tourism sector and tend to rely on short-term local solutions.11 2. result and analysis 2.1 the incorporation of the concept of quality and sustainable tourism into the tourism master plan of the bali province 20152029 2.1.1 the concept of quality and sustainable tourism tourism is one of the essential aspects of economic development. this sector is expected to support the rate of equitable economic development such as foreign exchange earnings, equitable distribution of people's economic income, expand employment opportunities, and community entrepreneurial opportunities, as well as increase regional income, in order to participate in efforts to alleviate poverty (pro-poor tourism).12 as a sector that has a multidimensional nature, it is indispensable to plan for tourism development by considering all possibilities in the future with the facts that occur in the world of tourism these days, then able to find out what efforts need to be made to achieve the goal in the future.13 multidimensional tourism certainly affects various life domains, whether directly or 9 jenny suno wu, op. cit., 2. 10 yi guo, op.cit., 2. 11 noga collins-kreiner, op.cit., 2-3. 12 aliansyah, helmi, and wawan hermawan, “peran sektor pariwisata pada pertumbuhan ekonomi kabupaten/kota di jawa barat,” bina ekonomi 23, no. 1 (2019): 40. 13 ibid. towards quality and sustainable tourism in bali: should the regional master plan be adjusted? i dewa gede palguna, anak agung gede duwira hadi santosa, made maharta yasa, i gede pasek pramana 46 indirectly.14 tourism is also a tremendous and effective sector that can create job opportunities, generate foreign exchange earnings, and increase investment.15 the concept of sustainable tourism development continuously reiterates among tourism stakeholders worldwide. the idea is inspired by the concept of sustainable development, which derives from economics as a discipline but is then understood as a notion that emphasizes relationships among the environmental, economic, and social aspects.16 these three aspects must be integrated systematically into decision-making across generations (present and future).17 the legitimacy of 'sustainable tourism' is increasing when global actors, such as world commission on environment and development (wced), play a role in spreading its relevance to various parts of the world.18 sustainable tourism development is carried out with reference to the united nations world tourism organization’s global code of ethics for tourism which outlines the principles of tourism development and serves as a guide in realizing responsible and sustainable tourism. in this context, being responsible contains the value that tourism is fully responsible for all the impacts it causes, starting from the environmental, social, cultural, and economic aspects of the present and the future.19 the advent of the notion of sustainable development marked a convergence of economic development with environmentalism. this confluence was publicly demonstrated at the stockholm conference on humans and the environment in 1972, the first of a series of important un conferences on global environmental issues. the conference supported the concept of eco-development, in which cultural, social, and environmental goals were combined with development.20 the term "quality tourism" was introduced in the model of tourism planning and development proposed by middleton and hawkins in 1998. they categorize tourism experiences as the result of the relationship between demand and supply. in consequence, quality tourism experiences can be obtained if visitors, tourism developers, products, media, and the local community collaborate to solve the complexities of 'quality' concepts, 14 ni made sri nopiyani and i made andi wirawan, “the impact of tourism on the quality of life of communities in tourist destination areas: a systematic review,” open access macedonian journal of medical sciences, 9(f) (2021): 129. 15 tien pham and anda nugroho, “tourism-induced poverty impacts of covid-19 in indonesia,” annals of tourism research empirical insights 3, no. 2 (2022): 3. 16 justice mensah, “sustainable development: meaning, history, principles, pillars, and implications for human action: literature review,” cogent social sciences 5, no.1 (2019): 6-8. 17 ibid., 14. 18 see i gusti ayu ketut rachmi handayani, “green development rights for optimizing urban area and coastal areas in indonesia (consitency of the state of the doctrine of the right to control the state),” constitutional review 2, no.1 (2016): 59. 19 global code of ethics for tourism, art. 3. 20 anne hardy, robert j.s. beeton, and leonie parson, “sustainable tourism: an overview of the concept and its position in relation to conceptualisations of tourism,” journal of sustainable tourism 10, no.6 (2002): 476. udayana journal of law and culture vol. 7 no. 1, january 2023 47 which can be described in terms of attractions and activities, social components, and support service components (amenity).21 moreover, the concept of quality and sustainable tourism has been recognized and adopted by many tourism planning models. the one adapted by bali’s tourism master plan will be explained below. 2.1.2 the content of the master plan law no. 10 of 2009 concerning tourism (tourism law) determines that tourism development in indonesia is conducted based on a tourism development master plan at the national, provincial, and regency/city levels.22 government regulation no. 50 of 2011 concerning the national tourism development master plan 2010-2025 determines that the national tourism development master plan becomes a guideline for the preparation of the tourism development master plan at the provincial level.23 moreover, this provincial master plan serves as a reference for the master plan at the regency/city levels.24 the minister of tourism further adopted a regulation that provides guidelines for preparing provincial and regency/city tourism development master plans. this guideline was prepared in order to provide a reference for provincial and regency/city governments to develop sustainable tourism planning, as well as to synergize the preparation of the regional tourism master plan.25 bali, as one of the world's tourist destinations, has a vision of regional tourism development vision that has been clearly described in the provisions of bali’s tourism master plan. the vision holds that the realization of quality and sustainable cultural tourism as well as having competitiveness based on tri hita karana26 which is able to encourage regional development and people's welfare.27 the concept of quality tourism and sustainable tourism appears in the explanation of article 11 (a). ’quality tourism; is explained as “tourism that provides high economic benefits with minimal negative environmental and social impacts” while, ‘sustainable tourism; means tourism that is not only 21 a. nilnoppakun and k ampavat, “integrating cultural and nostalgia tourism to initiate a quality tourism experiences at chiangkan, leuy province, thailand,” procedia economics and finance 23 (2015): 764. 22 law no. 10 of 2009 concerning tourism, art. 8 (1). 23 government regulation no. 50 of 2011 concerning the national tourism development master plan 2010-2025, art. 4 (2). 24 ibid., art. 4 (3). 25 regulation of tourism minister no. 10 of 2016 concerning guidelines for preparation of provincial and regency/city tourism development master plans, annex, part a. 26 tri hita karana means the three harmonious relationships between the individual and their god, between the individual and other individuals, and between the indi vidual and the environment. see made suksma prijandhini devi salain, david isles, and i gusti ngurah wairocana, "regulating indigenous culture as a tourism economic resource," udayana journal of law and culture 1, no. 2 (2017): 113. 27 regional regulation of the province of bali no. 10 of 2015 concerning the regional tourism development master plan for the province of bali (bali’s tourism master plan), art. 7. towards quality and sustainable tourism in bali: should the regional master plan be adjusted? i dewa gede palguna, anak agung gede duwira hadi santosa, made maharta yasa, i gede pasek pramana 48 concerned with the current generation but also takes into account the interests of future generations. bali’s tourism master plan determines the purpose of tourism development are: a. increasing the quality and quantity of tourism destinations as well as the diversity of tourism attractions based on local potential; b. carry out marketing activities using various media effectively, efficiently, and responsibly; c. realizing a tourism industry capable of driving the regional economy; and d. develop tourism institutions and governance that can synergize destination development, marketing, and the tourism industry in a professional, effective and efficient manner.28 it also stipulates that tourism development targets are increasing the number of visits by domestic and foreign tourists; the tourists’ length of stay; the amount of tourists’ spending; and the community participation in tourism through tourism village development.29 therefore, bali's tourism master plan boldly demonstrates the quality and sustainable tourism as the vision, which also indicates that the quantity targets have been reached, through its purpose and targets. 2.1.3 normative issues in the master plan: a contradiction as discussed in section 2.1.2, the concept of quality and sustainable tourism has been incorporated into bali’s tourism master plan. however, inconsistencies and contradictions exist in the visions, targets, and objectives to be achieved. on the one hand, tourism development in bali refers to the quality and sustainable tourism, but on the other hand, it also focuses on quantity tourism. such inconsistency can be seen in article 8 (b) of bali's tourism master plan, which stipulates that to increase the number of domestic and international visitors, building a synergistic, superior, and responsible tourism marketing strategy is part of the goals of regional tourism development. it is further emphasized in article 10 (1) (a), which stipulates that increasing the number of domestic and international visitors is one of the objectives of regional tourism development. referring to the marketing strategy as stipulated in article 8 (b), article 46 (e) determines that working with airlines to sell holiday packages at discounted travel ticket prices for both domestic and international tourists during the off-season is a part of creating promotional activities. referring to those provisions, bali tourism development tends to receive more tourist visits. the master plan also indirectly illustrates that tourism activities in bali are divided into two seasons, namely the high season and the low season, which ultimately results in uneven tourist arrivals throughout the year. in the high season, tourist destinations can be overwhelmed by tourist activity during a certain period, while it is also possible that there is no 28 ibid., art. 8. 29 ibid., art.10. udayana journal of law and culture vol. 7 no. 1, january 2023 49 tourist activity at all in another period in the same year, which is known as the low season.30 the concept of quality and sustainable tourism as the vision of tourism development in bali’s tourism master plan is certainly becoming increasingly opposed to the existence of several provisions of the article that tend to lead to tourism based on quantity rather than based on quality and sustainability. the master plan also indirectly illustrates that tourism activities in bali are divided into two seasons: the high season and the low season. it ultimately results in uneven tourist arrivals throughout the year. in the high season, tourist destinations can be overwhelmed by tourist activity during a specific period, while less activity in another period in the same year, known as the low season. 31 the concept of quality and sustainable tourism as the vision of tourism development in bali’s tourism master plan is undoubtedly becoming increasingly opposed to the existence of several provisions of the article that tend to lead to tourism based on quantity rather than quality and sustainability. tourism which is considered one of the sectors that can encourage economic growth, especially in increasing the country's foreign exchange earnings, in the end, led to tourism policies that tend to be more directed at the number of tourist visits than the quality of tourism. 32 the wrong mindset assumes that the benchmark for the success of tourism development is formulated from the number of tourist visits and the estimated amount of foreign exchange the state receives. the number of tourists is pursued as much as possible, and most of the natural and cultural resources are commercialized without considering the ability, balance, readiness, and resilience of local communities against various accompanying effects such as environmental damage and socio-cultural disfunction.33 the next problem relates to the meaning of quality in the phrase "quality and sustainable tourism" in this case, what is meant or expected to be quality is still vague, whether human quality, the quality of tourist destinations, or the quality of the tourists. the meaning of 'quality' needs to be defined clearly so that future tourism development strategy planning can be well-directed and fulfill the expected target. bali tourism promotion agency's deputy policy maker admitted that there is a conceptual issue in bali's tourism master plan. several terms may distort the generally accepted meaning of sustainable tourism. for example, the term “sustainable”, “environmentally sound”, and “quality”, is 30 addin maulana and chamma fitri putri pradjwalita koesfardani, “pola musiman kunjungan wisatawan mancanegara ke bali,” jurnal kepariwisataan indonesia: jurnal penelitian dan pengembangan kepariwisataan indonesia 14, no.2 (2020): 75. 31 addin maulana and chamma fitri putri pradjwalita koesfardani, “pola musiman kunjungan wisatawan mancanegara ke bali,” jurnal kepariwisataan indonesia: jurnal penelitian dan pengembangan kepariwisataan indonesia 14, no.2 (2020): 75. 32 anak agung duwira hadi santosa and luh ayu nadira saraswati, “pariwisata kerta masa: gagasan alternatif kebijakan pembangunan pariwisata bali,” jurnal magister hukum udayana 9, no. 4 (2020): 72. 33 yulianto bambang setyadi, “pariwisata dan perubahan nilai-nilai sosial budaya berdasarkan lingkungan tradisi pada masyarakat bali,” jurnal penelitian humaniora 8, no. 2 (2007): 103. towards quality and sustainable tourism in bali: should the regional master plan be adjusted? i dewa gede palguna, anak agung gede duwira hadi santosa, made maharta yasa, i gede pasek pramana 50 formulated with different meanings in the master plan compared to the concepts accepted in other regions or countries. inconsistent use of phrases resulted in differences in perspectives. it also biases tourism development, whether referring to quality and sustainable tourism or focusing on the number of tourists.34 2.2 the evaluation of implementation of bali’s tourism master plan during the covid-19 pandemic 2.2.1 covid-19 and its catastrophic impact on tourism industry in bali bali's tourism industry is one of the sectors that has been badly affected by covid-19. undeniably, the tourism industry is the primary source of bali's local revenue. for decades, the tourism industry positively impacts bali's economic growth. however, the negative impact certainly cannot be ignored. in the last few decades, bali has relied heavily on the tourism industry without being accompanied by the strengthening and development of other sectors, such as the agriculture, maritime, fisheries, and plantation sectors, to support its local income. during the covid-19 pandemic, various countries' governments issued several policies of close borders, restrictions, and isolation to prevent the spread of covid-19. those policies have paralyzed the tourism sector from 2020 to 2021.covid-19 has decreased the number of tourist visits to bali. most tourism companies were closed and did not earn any income, which created unemployment.35 even some companies with more capital still operated during the mobility restrictions, and their sales dropped significantly. it is estimated that the losses caused by the pandemic to bali tourism reached idr 9,7 trillion every month, which of course, had a domino effect on other sectors in bali. 36 during the mobility restrictions, the demand for accommodation and food and beverages (f & b) sectors in the second quarter of 2020 are closely related to the decline in tourism activities in bali during the covid-19 situation. this situation has impacted bali's economic growth ratio during covid-19. central bureau of statistics of bali province in november 2022 released the covid-19 impact on the growth of the bali province gross regional domestic product (grdp) from 2020 to 2022, as can be described in table 1. 34 i nyoman sunarta, “implementation of the bali’s tourism master plan,” interview by anak agung gede duwira hadi santosa, denpasar, august 18th, 2022. regarding the generally-accepted concept of sustainable tourism, see putri triari, kali jones, and ni gusti ayu dyah satyawati, "indigenous people, economic development and sustainable tourism: a comparative analysis between bali, indonesia and australia," udayana journal of law and culture 1, no. 1 (2017): 16-18. 35 nyoman dwika ayu amrita, made mulia handayani, and luh erynayati, “pengaruh pandemi covid-19 terhadap pariwisata bali,” jurnal manajemen dan bisnis equilibrium 7, no. 2 (2021): 249. 36 kompas, “dampak pandemi covid-19, pariwisata bali rugi rp 9,7 triliun tiap bulan,” https://regional.kompas.com/read/2020/05/13/17591091/dampak-pandemicovid-19-pariwisata-bali-rugi-rp-97-triliun-tiap-bulan. https://regional.kompas.com/read/2020/05/13/17591091/dampak-pandemi-covid-19-pariwisata-bali-rugi-rp-97-triliun-tiap-bulan https://regional.kompas.com/read/2020/05/13/17591091/dampak-pandemi-covid-19-pariwisata-bali-rugi-rp-97-triliun-tiap-bulan udayana journal of law and culture vol. 7 no. 1, january 2023 51 table 1. bali province gross regional domestic product (grdp)’s growth in 2020 to 2022 (q to q) 37 period (quartal) percentage (%) first quartal of 2020 -7.68 second quartal of 2020 -7.26 third quartal of 2020 1.60 fourth quartal of 2020 0.95 first quartal of 2021 -5.17 second quartal of 2021 5.72 third quartal of 2021 -4.09 fourth quartal of 2021 4.52 first quartal of 2022 -4.30 second quartal of 2022 7.42 third quartal of 2022 0.60 according to table 1, there has been a drastic decline from 2020 to 2021. contractionary growth did not stop in the first quarter of 2020 but continued in the following quarters. in the second quarter of 2021, an economic increase occurred due to the easing of the policy limiting community activities. unfortunately, in the third quarter of 2021, the covid19 suspects increased daily as the restriction policy was implemented into force. this situation confirms that the impact of covid-19 has caused a decline in the activity of the tourism industry, which is the ‘backbone’ of bali province’s economy. governments have taken travel restrictions and lockdown policies adopted by many countries over the world to prevent the covid-19 spreading. this policy impacted the decreased number of foreign tourists visiting indonesia, especially bali, after i gusti ngurah rai international airport was closed for international and domestic flights. the following tables show data on the development of international and domestic air transport for the province of bali from january 2020 to may 2022 based on data obtained from the central bureau of statistics of bali province for 2020, 2021, and 2022, as follows. table 2. international and domestic air transportation development in bali province in 2020 2022 (y to y)38 year international (person) domestic (person) 2020 1,354,443 1,777,301 2021 7 318,557 2022 (may) 109,750 395,645 the data above shows how, after covid-19 spread, the tourism industry in bali drastically declined to minus 82% (eighty-two percent) of visits in 2019. covid-19 has hit the world and bali's tourism sector hard, 37 central bureau of statistics of bali province, statistical official news no. 67/11/51/th. xvi, 2022. 38 ibid. towards quality and sustainable tourism in bali: should the regional master plan be adjusted? i dewa gede palguna, anak agung gede duwira hadi santosa, made maharta yasa, i gede pasek pramana 52 where 80% (eighty percent) of bali's local revenue comes from the tourism industry. the number of tourism visits which dropped drastically during covid-19 impacted the country's foreign exchange earnings from the tourism sector, which also significantly decreased. a decline of up to 90% (ninety percent) in the arrival of foreign tourists in 2021 occurred due to the suspension of commercial flights at i gusti ngurah rai airport and tanjung benoa port for almost the entire period of the second until the fourth quarter of 2020 cannot be ruled out. furthermore, this slump can be seen from the average lowercase of star hotels, which in mid-2020 only left about 3% (three percent).39 the decline in tourist visits and the covid-19 impact has caused many tourism businesses to close temporarily. most of them are permanently closed, leading to employees not receiving a salary for almost a year. it triggered a rising wave of unemployment in bali. based on data from the central bureau of statistics of bali province comparing the unemployment rate in 2019 (pre-covid-19) to 2020 (during covid-19) as follows. table 3. bali province unemployment data in 2019-202040 regency/city unemployment data 2019 (person) / pre-covid-19 2020 (person) 2021 (person) 2022 (person) jembrana 2,102 7,485 7,354 7,074 tabanan 3,527 11,663 10,939 11,000 badung 1,543 27,324 28,027 28,650 gianyar 4,506 22,028 20,064 22,921 klungkung 1,679 5,794 5,577 2,262 bangli 1,104 2,727 2,659 1,146 karangasem 1,590 6,284 6,099 8,629 buleleng 10,960 19,861 20,234 20,358 denpasar 12,277 41,334 37,716 29,429 bali province (total) 39,288 144,500 138,669 131,469 covid-19 has a different impact on each regency/city in bali. for example, for the badung regency, gianyar regency, and denpasar city, the impact of covid-19 was most felt because most tourism activities were in those areas. the local income of each city/regency from the tourism industry had significantly decreased. badung regency relies heavily on the tourism sector, but covid-19 has made badung's economy impoverished. the number of unemployed in badung regency increased by 1,670.84 percent during 2020 compared to the previous year's position of 27,324 people, and conditions continued to increase until 2022 reaching 28,650 39 balipost, “ketahanan perekonomian bali,” https://www.balipost.com/news/2020/06/11/128784/ketahanan-perekonomianbali.html. 40 central bureau of statistics of bali province, op.cit. https://www.balipost.com/news/2020/06/11/128784/ketahanan-perekonomian-bali.html https://www.balipost.com/news/2020/06/11/128784/ketahanan-perekonomian-bali.html udayana journal of law and culture vol. 7 no. 1, january 2023 53 unemployed people. according to the abovementioned data, this realization makes badung the number two area in bali with enormous unemployment. denpasar city occupied the first position with a total of 41,334 unemployed people, an increase of 236.69 percent year of year. it should be noted that denpasar city has been trending for the past three years to become the area with the most significant number of unemployed in bali. the opposite condition occurred in badung regency, which in 2019 ranked number two with the lowest unemployment out of nine bali regions (1,543 persons). 2.2.2 lack of implementation and the need to offer an adjustment bali's tourism master plan, along with quality and sustainable tourism contained in it, has not been implemented as expected due to covid-19. whatsoever, the government officers argued that they have been trying and implementing the master plan as optimally as possible.41 during the covid-19, the government has been focusing on formulating policies for handling covid-19 in a force majeure situation. the current focus of the policy is the recovery of the post-covid-19 tourism industry, which will begin to revive. 42 even though the master plan faced some difficulties during the covid-19, it is too early to assess that it was not implemented correctly. the master plan is still relevant to be implemented until 2029 and may still be used as guidelines by the government and other related parties to develop the bali tourism industry. 43 the forms and models of tourism policies are the results of tourism policy products that serve as directions and guidelines for taking tourism development actions. the concept of sustainable tourism development that integrates aspects of development and the environment is one strategy that can be used to control negative impacts and maximize the positive impacts of tourism. in this case, tourism industry policies may become the frontline in realizing people's welfare and sustainable development that can ensure that the needs of the present generation are met without compromising the ability of future generations to meet their needs. tourism industry policies that underlie every dynamic movement and development have shaped the achievements of tourism development so far. tourism industry policies have functions to organize, regulate, and direct these forms of behavior under the directions and objectives of tourism development. the policy aimed to ensure that the action and behavior of tourism actors are in line with the tourism policy. the tourism industry is expected to improve the community's welfare while maintaining and sustaining various tourism resources. the evaluation of the policy implementation is becoming a crucial step to examine whether the policy can be implemented as expected. covid-19 seems to be the right moment to evaluate the shortcomings contained in bali's tourism master plan. 41 ni nyoman ayu andriani, “implementation of the bali’s tourism master plan,” interview by anak agung gede duwira hadi santosa, denpasar, august 18th, 2022. 42 ngurah satria wardana, “implementation of the bali’s tourism master plan,” interview by anak agung gede duwira hadi santosa, denpasar, august 18th, 2022. 43 i gusti agung wikrama, “implementation of the bali’s tourism master plan,” interview by anak agung gede duwira hadi santosa, denpasar, august 18th, 2022. towards quality and sustainable tourism in bali: should the regional master plan be adjusted? i dewa gede palguna, anak agung gede duwira hadi santosa, made maharta yasa, i gede pasek pramana 54 in essence, policy evaluation is a series of assessment activities closely related to the policy's substance, implementation, and influence. stewart and lester argued that policy evaluation is conducted to discover two things. first, to estimate the potential consequences regarding the implementation of the policy by describing its effects. second, to measure the failure or success of the policy based on previously established criteria.44 in this regard, the policy recovery scheme may have relevance.45 this scheme, among others, offers a reconstruction of the policy system of tourism for capturing the whole aspect of tourism and the adoption of the contextual approach that would lead to the maintenance of the sustainability of tourism.46 based on the abovementioned, several matters shall be adjusted in bali’s tourism master plan. the purpose of any adjustments is to measure how these policies can improve environmental, economic, social, and cultural problems; to review the meaning and consistency used of the concept of quality and sustainable tourism; to assess the consequences that arise from the implementation of the policy. therefore, this paper proposes an adjustment on 4 (four) aspects: availability and capacity of the environment, restrictions on tourists' physical contact with vulnerable cultural heritage sites, local communities’ ownership and their involvement in tourism management decision-making, and clarifying the rights and obligations of cultural heritage bearers: first, bali’s tourism master plan for the future must regulate more strictly regarding the availability and capacity of the environment used as a tourism industry area. it should reflect and implement the concept of sustainable environment. second, restrictions on tourists' physical contact with vulnerable cultural heritage sites need to be adopted in bali’s tourism master plan in the future in order to protect cultural heritage sites protected by the central or regional government as a form of sustainable cultural heritage preservation. such a restriction needs to be made on tourism activities in the area of ancient cultural heritage sites, which have the potential to degrade the cultural values contained therein and damage these cultural heritage sites. this is in line with regulation of the province of bali no. 4 of 2014 on the preservation of balinese cultural heritage.47 third, the participation of the local community in every activity of the tourism industry must be prioritized to reduce domination by other tourism stakeholders in organizing tourism in a particular place. therefore, bali’s tourism master plan in the future needs to consider sociological aspects by further strengthening the position of the local community as a determinant 44 chazali h situmorang. kebijakan publik: teori analisis, implementasi dan evaluasi kebijakan (depok: social security development institute, 2016), 282. 45 ida bagus wyasa putra, “the contextual problem in the development of indonesian international tourism law,” advances in social science, education and humanities research 282-proceedings of the international conference on business law and local wisdom in tourism (2018): 155-156. 46 ibid. 47 regulation of the province of bali no. 4 of 2014 on the preservation of balinese cultural heritage, consideration (a). udayana journal of law and culture vol. 7 no. 1, january 2023 55 of the direction of tourism development and management by respecting the existing local wisdom. forth, in implementing the concept of sustainable tourism, the bali tourism master plan needs to clarify the rights and obligations of the people who preserve cultural heritage and their environment as tourist areas. this is in line with the provisions contained in regulation of the province of bali no. 5 of 2020 concerning standards for implementing balinese cultural tourism.48 3. conclusion the concept of quality and sustainable tourism has been incorporated into the bali tourism master plan. it is pretty apparent that there is a contradiction between the vision and the goals and objectives of the master plan. on the one hand, the vision of the master plan is to achieve quality and sustainable tourism. however, on the other hand, the targeted goals and objectives led to the number of tourist visits to bali. based on a qualitative evaluation, the issue of contradiction regarding the substance of the master plan document also has an impact on its implementation. further, the covid-19 pandemic indicated that the plan could not be appropriately implemented. in reality, the concept of quality and sustainable tourism cannot be applied because the main target of the policy is quantity tourism. therefore, the revision of the master plan is urgent in order to achieve quality and sustainable bali tourism. acknowledgment this article is developed based on the results of research funded by the research and community service institute of udayana university under udayana excellence research (penelitian unggulan udayana) scheme in 2022. bibliography book chazali h situmorang. kebijakan publik: teori analisis, implementasi dan evaluasi kebijakan. depok: social security development institute, 2016. journal article aliansyah, helmi, and wawan hermawan. ”peran sektor pariwisata pada pertumbuhan ekonomi kabupaten/kota di jawa barat.” bina ekonomi 23, no. 1 (2019): 39-55. https://doi.org/10.26593/be.v23i1.4654.39-55 amrita, nyoman 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development master plan 2010-2025. indonesia. regulation of tourism minister no. 10 of 2016 concerning guidelines for preparation of provincial and regency/city tourism development master plans. bali province. regulation of the province of bali no. 4 of 2014 on the preservation of balinese cultural heritage. bali province. regulation of the province of bali no. 10 of 2015 concerning the regional tourism development master plan for the province of bali. bali province. regulation of the province of bali no. 5 of 2020 concerning standards for implementing balinese cultural tourism https://doi.org/10.24843/jmhu.2020.v09.i04.p05 https://doi.org/10.24843/ujlc.2017.v01.i02.p03 http://hdl.handle.net/11617/580 https://doi.org/10.24843/ujlc.2017.v01.i01.p02 https://doi.org/10.1016/j.jhtm.2022.06.018 https://doi.org/10.1016/j.annals.2021.103269 towards quality and sustainable tourism in bali: should the regional master plan be adjusted? i dewa gede palguna, anak agung gede duwira hadi santosa, made maharta yasa, i gede pasek pramana 58 other document central bureau of statistics of bali province, statistical official news no. 67/11/51/th. xvi, 2022. sun, ya-yen et.al, “road to recovery: assessing job risk and the impact on the most vulnerable in indonesia’s pandemic-hit tourism industry”, research report, the australia-indonesia centre, 2021. interview wikrama, i gusti agung. “implementation of the bali’s tourism master plan,” interview by anak agung gede duwira hadi santosa, denpasar, august 18, 2022. sunarta, i nyoman. “implementation of the bali’s tourism master plan,” interview by anak agung gede duwira hadi santosa, denpasar, august 18, 2022. wardana, ngurah satria. “implementation of the bali’s tourism master plan,” interview by anak agung gede duwira hadi santosa, denpasar, august 18, 2022. ayu andriani, ni nyoman. “implementation of the bali’s tourism master plan,” interview by anak agung gede duwira hadi santosa, denpasar, august 18, 2022. website content balipost, “ketahanan perekonomian bali” https://www.balipost.com/news/2020/06/11/128784/ketahananperekonomian-bali.html kompas, “dampak pandemi covid-19, pariwisata bali rugi rp 9,7 triliun tiap bulan” https://regional.kompas.com/read/2020/05/13/17591091/dampakpandemi-covid-19-pariwisata-bali-rugi-rp-97-triliun-tiap-bulan https://www.balipost.com/news/2020/06/11/128784/ketahanan-perekonomian-bali.html https://www.balipost.com/news/2020/06/11/128784/ketahanan-perekonomian-bali.html https://regional.kompas.com/read/2020/05/13/17591091/dampak-pandemi-covid-19-pariwisata-bali-rugi-rp-97-triliun-tiap-bulan https://regional.kompas.com/read/2020/05/13/17591091/dampak-pandemi-covid-19-pariwisata-bali-rugi-rp-97-triliun-tiap-bulan | 46 abstract recently, the discourse on the relation between local wisdom and human rights shows its relevance. this article describes and critically examines the human rights norms and procedures with regards to common local wisdoms to remedy and redress human rights problems in south east asian countries. it takes an example of redressing problem in rights to development and also focuses on the application of the asean agreement on disaster management response to contextualize role and influence of local wisdoms to manage and to mitigate disaster response within the asean human rights protection. this writing also highlights that human rights based approach is needed in the implementation of the asean human rights norms and mechanisms in accordance to local wisdoms of respective countries where disaster occurs. keywords: wisdom, asean, human rights. national wisdoms and the asean human rights legal regime heribertus jaka triyana* lecturer at faculty of law universitas gadjah mada, yogyakarta, indonesia i. introduction as the newest sub regional legal regime, the association of the south east asian nations (asean) has developed its own human rights norms and mechanisms,1 that truly inspired by local wisdoms among its member states. it has then created a distinct legal human rights regime.2 the establishment of the asean intergovernmental commission on human rights (aichr) in 2009 and the creation of the asean human rights declaration (ahrd) in 2012 marked tremendous development of human safety and security for southeast asian countries.3 then, human rights-based organization is legally labelled and dedicated to asean. as a result, it shall achieve its main goals within the human rights-based approach as the manifestation of a comprehensive human security for reaching the asean idea of one community.4 it is important to note that the agreement among the asean member states indicates a common acceptance over the binding legal righteous and legal entitlement * correspondence: jaka.triyana@mail.ugm.ac.id 1 direktorat jenderal kerjasama asean deplu, asean selayang pandang (2007), 41 and phnom penh statement on the adoption of the asean human rights declaration (ahrd) (18 november 2012). 2 yuyun wahyuningrum. “regional limitation and universality of human rights in asean” (paper presentation at the padjadjaran international conference on international law, faculty of law padjajaran university – bandung, 2013). 3 asean. 2010. asean masterplan 2020 (bangkok: asean, 2008), 26. 4 heribertus jaka triyana. “politics and law of human rights in southeast asia: a critical legal analysis” (presented at the short course on human rights and democracy in southeast asia for the asean diplomats, 24-25 august 2009, pusat studi sosial asia tenggara (pssat ugm)-deplu ri, yogyakarta, 2009), 3-7. udayana journal of law and culture vol. 01 no. 1, january 2017, pp. 46-56 e-issn 2549-0680 52 | udayana journal of law and culture vol. 01 no.1, january 2017 47 of the terms of human rights within asean contexts and perspectives.5 legal expectation then could be built throughout south east asian countries in terms of human rights advocacy and adjudication for better human rights protection or enjoyment.6 redress and remedies must be guaranteed by all member states and by asean it self.7 indeed, they direct member states to comply with the asean human rights standards for better enjoyment and for more progressive realization.8 the terms of human rights in asean instruments have distinct features compared with internationally recognised documents, such as the universal declaration of human rights; and with the existing regional human rights conventions, such as the european human rights conventions and fundamental freedoms, the inter american convention on human rights, and the african charter on human rights and peoples’ rights.9 undeniably, common concerns from all asean member states have shaped its contents and procedures.10 national identities and local wisdoms being apart from unfinished debates on the asian values, and national interests are posted as three pillars of the human rights concept in the asean scheme.11 they are representing freedom, integrity and equality of common terms of human rights. as a consequence, this creation emphasises collective rights such as right to development, right to peace, and economic and social rights. further, common regional problems and challenges to migrant workers, human trafficking of children and women, and terrorisms have been construed as common human rights violations that need common efforts to combat, remedy, and give redress to these violations, in terms of future asean cooperation.12 integration of common policy, program and action to these matters has reached deeply regional understanding and patterns of mutual cooperation. as a result, individual as well as collective legal expectation could be far more strengthened for effective and more practical advocacy and adjudication. indeed, they are intended to be complemented 5 heribertus jaka triyana, “tinjauan yuridis tentang badan ham asean dalam sistem hukum nasional indonesia”, jurnal mimbar hukum fh ugm 23, no. 3 (2011): 612-623. 6 charles r beitz, the idea of human rights, (london: oxford university press, 2009), 10 & 73. 7 yigen, et all, national human rights institutions: articles and working papers, the danish center for human rights (denmark: wilden plada, 2004), 44; mortem kjaerum,national human rights institution implementing human rights (leiden: martinus nijhoff publisher, 2003), 2-4; and pacific forum secretariat, national human rights institutions pathways of the pacific states (pacific islands forum secretariat, 2010), 2-10. 8 human rights resource center, rule of law untuk hak asasi manusia di kawasan asean, studi data awal (jakarta: ui press, 2001), 10 and charles r beitz, the idea of human rights. 9 todd landman, studying human rights (new york: routledge, 2006), 4. 10 camoying luningning g, “establishing an asean human rights mechanism: development and prospects”, insights, issue no. 1 march 2005 (2005), 1-3. 11 asean, asean masterplan 2020, no. 3, 26. 12 regarding the human trafficking of children and women, see asean, asean handbook on international cooperation in trafficking in persons (jakarta: asean public affairs services, 2010), 49. | 48 by international human rights standards while they also require primacy for effective and practical national implementation among its ten member states.13 asean currently faces problems, challenges, and opportunities viewed from both political and legal point of views.14 how can national wisdoms, interests, resilience and economic hegemony be used to make consensus and consultation for human rights campaign within the asean human rights system? regional as well as sub regional human rights systems are established to complement the national system since national legal system shall comply with international legal norms and standard to protect human rights and fundamental freedoms; this theory justifies regionalism in the studies of international relations relevant to regional human rights needs and particularities. it also helps reduce critics of utilitarianism that human rights are nonsense concept, communitarians that human rights are as a matter of fantasy, and marxism that human rights are bourgeois. in addition, it accepts sovereignty as responsibility for better human security in modern study in international law and international relation. in simple terms, this theory amplifies that the field of human rights has reshaped international law’s character of coexistence to cooperation and integration. it is believed that asean has reached into deeper element of cooperation, e.g. deep integration as a single community bound by common wisdoms of respecting integrity, freedom and equality. in this context, asean human rights system reforms state sovereignty in a modest way into ‘sovereignty as responsibility’. this article aims to describe and critically examine the asean human rights norms and mechanism as the agreement of common local wisdoms to remedy and to redress common human rights problems in south east asian countries which mounting binding legal righteous and entitlement.15 it will take an example on redressing problems on rights to development. in particular, it will focus on the application of the asean agreement on disaster management response (aadmer) to contextualize role and influence of local wisdoms to manage and to mitigate disaster response within the asean human rights protection. in addition, coordination and cooperation will be initiated to reveal community participation. this article is construed as follows. first, an introductory section describes the development of human rights in asean, the aim of the writing, and the structure of the 13 jo stingen, the relationship between the international criminal court and national jurisdictions, the principle of complementarity (leiden: martinus nijhoff publishers, 2008), 6-8; jt holmes, “the principle of complementarity”, in lee, r.s, (ed), the international criminal court: the making of the rome statute, issues negotiations results (the hague, boston: kluwer law international, 1999), 41 and j.t holmes, “complementarity: national court vs. the icc”, in antonio cassese et all. (eds), the rome statute of the international criminal court (london: vol. i, oxford university press, 2002), 667-668. 14 camoying luningning g., “establishing an asean human rights mechanism: development and prospects, 4. 15 hiro, katsumata, asean’s cooperative security enterprise, norms and interests in the asean regional forum (palgrave mcmilan, 2009), 8-11. national wisdoms and the asean human rights legal regime heribertus jaka triyana 54 | udayana journal of law and culture vol. 01 no.1, january 2017 49 article. second, it will elaborate local wisdoms and national interests to overcome common human rights problems within the asean regime as well as to advocate and to adjudicate human rights violations. a focus on the right to development, in particular attention to the application of the aadmer, is emphasized on materialising this elaboration. lastly, a concluding remarks will propose shortcomings to remedy efficacy of the existing norms and mechanisms. ii. local wisdoms for asean human rights to development advocacy the adoption of local wisdoms for the application of asean human rights norms and mechanisms can be seen in the asean agreement on disaster management response (aadmer) which requires simplification of coordination and cooperation in terms of advocating human safety and security in south east asian countries. disaster forms legal concept in human rights since it creates certain legal rights and obligations to right holders and duty bearers. it also determines their specific roles and function when certain situation disrupts their normal livelihood. determination of subjects, objects, facilitators, resource providers and collaborators is imminent to clarify their tasks according to right to development legal concepts in the ahrd and in the aadmer. as a legal concept, the human rights-based approach is essential for the implementation of the asean human rights norms and mechanisms in accordance to local wisdoms of respective countries where disaster occurs. this approach is a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promote and protect human rights. it redefines16 context and perspective for its legal relevance in order to enhance its accountability and its sustainability aspects in sustainable development process. this understanding will be valuable to draw clear rights and obligations among stakeholders. asean takes similar adaptation to this working definition in its regional cooperation and coordination in aadmer. take for example, the indonesian legal system. the law no. 39 of 1999 concerning human rights adopts this conceptual framework as it determines that the human rights-based approach requires state “to implement the effectiveness principle which obliges provisions of human rights treaties to be interpreted and applied so as to make their safeguards practical and effective in indonesia”.17 within this legal point of view, this approach introduces and imposes legal obligations in which 16 united nations high commissioner for human rights, frequently asked questions on a human rights based approach to development cooperation (new york: un publisher, 2006), 15, http://www.ohchr.org/documents/publications/faqen.pdf 17 the law no. 39 of 1999 concerning human rights, art.71. | 50 communities shall exercise their rights. additionaly, this approach places them as a subject of development rather than as an object guaranteed by government. commonly, although the right to development is still debatable in terms of its legal rights and its legal duties,18 it is widely accepted and repeatedly voiced by developing countries and least developing countries when they negotiate international law instruments thay may potentially affect their right of self determination and their own development process. from the legal point of view, the right to development is accepted as part of human rights from which the human rights based-approach is developed to empower local communities in the sustainable development process. in indonesia, for example, the corpus of the right to development, such as true participation and equality principle, plays its significance. it emerges as two basic indicators of the human rights-based approach relevant for the implementation of the aadmer which is guided by the application of the community based natural resources management system principle. viewed from the indonesian contexts and perspectives of the aadmer’s implementation, it depends on availibility and accessibility of natural resources. the national disaster management process (ndmp) was introduced by applying the human rights-based approach to certain targeted groups.19 it reveals indicators of the obligation of conduct and of the obligation of result for progressive realization of the economic, social and cultural rights values. the fulfilment of the indicators of availability, accessibility, acceptability and adaptability20 is used to verify these two obligations for the implementation of the ndmp as regulated in the law of disaster. consequently, the indonesia’s ratification and other asean member states’ ratification and accession toward the international covenant on civil and political rights (icescr) make them bind to conduct those obligations guided by good faith. they indeed require governments to take “a commitment to act in accordance with the object and purpose of the icescr achieving a visible and meaningful result for its community and creating conducive context where the economic, social and cultural rights can be respected and experienced by its community”. the committee on economic, social and cultural rights (cescr) further emphasises minimum indicators measuring states’ compliance to achieve progressively the full realization of these rights. according to rehman, the examinations of those four indicators have tended to be assessed in a less attention manner by states parties to the icescr, includ18 david hunter, james salzman, and durwood zaelke, international environmental law and policy (new york: foundation press, 2002), 383. 19 heribertus jaka triyana, “the implementation of natural disaster management program in indonesia between 2007 and 2013”, mimbar hukum 25, no. 1(2011), 105-107. 20 these four indicators are developed by the committee of the economic, social and cultural rights (cescr) in its general comments directed to specific rights contained therein such as the right to development, the right to work, the right to housing, the right to health and the right to education. national wisdoms and the asean human rights legal regime heribertus jaka triyana 56 | udayana journal of law and culture vol. 01 no.1, january 2017 51 ing indonesia.21 the indonesian government has tended to be reluctant to apply the aforementioned standards, as the examinations are fully contained with political issues for the fulfilment of the indonesia’s obligations toward the icescr which somehow determines the aadmer implementation. consequently, they will reach into political arena placing the government as the centre of attention rather than attention to their substantial relevance to the ndmp under the law no. 24 of 2007 concerning disaster management. according to the cescr’s point of view, the human rights-based approach conceptual framework can be examined by these four indicators related to two intrinsic values differentiated between the external and internal objective conditions. they are valued by element of the true participation from community and the equality of enjoyment of the rights in asean. the two values will be further explained as follows. first, they place the roles of the government as an active actor for assessment of the accessibility and availability indicators. second, the requirement of active involvement of community for assessment of the indicators of adaptability and acceptability is paramount to the first assessment for the implementation of the principle of the community based natural resources management system in all the ndmp. all of them shall be prudently taken into account in all six phases of the ndmp process, i.e. undertaking groundwork, selecting the community, building rapport and understanding participatory natural disaster risk management, increasing communitybased natural disaster risk management planning, managing community-managed implementation of risk reduction measures, and involving participatory monitoring and evaluation process.22 to sum up, the human rights-based approach for the implementation of the aadmer not only places it as “the logical framework of analysis” but also places it as “the objectively verified indicators” for conducting community resilience toward human hazards. this reveals the equal distributions of rights and duties among stakeholders based upon the true participation and the equality principle in the asean human rights to development advocacy. respect for this principle shows that local wisdom from society has enhanced community reliabilty on potential human hazards on the development process. for example, indonesia approved the aadmer on 5 may, 2008 by presidential regulation number 32 of 2008 regarding the acceptance of the aadmer in indonesia.23 it seems that norm on disaster response is considered less important matter compared with the aforementioned aspects. in that regulation, there is no explicit 21 j. rehman, international human rights law, a practical approach (longman: pearson education limited, 2003), 23. 22 asian disaster preparedness center, critical guidelines community-based disaster risk management (bangkok, 2006), 28-45 http://www.preventionweb.net/files/9440_adpccriticalguidelines.pdf 23 official state gazette no. 73 of 2008. it only has three articles namely statement of approval, interpretation of the agreement and entry into force of the agreement. | 52 aadmer’s norm revealing difficulty to understand its scope, area and objective. interestingly, the aadmer’s norm was actually taken into account when the disaster management law was enacted on 26 april 2007 without any acknowledgment to this regulation. one hand, the law partially adopts the aadmer’s norm such as principles of disaster response24, coordination and regional cooperation.25 on the other hand, it affirms the aadmer as the proactive regional framework for cooperation,26 coordination,27 technical assistance28 and resource mobilization in all aspects of disaster response.29 consequently, this adoption has inspired the issuance of government regulation number 22 of 2008 concerning financial arrangement of the disaster management and government regulation number 23 of 2008 regarding the role and function of international organizations on disaster management.30 it is inferred that local wisdoms inspires the incorporation of human rights to development in the asean human rights norms and mechanisms. vice versa, they also need to be institutionalised at national level by incorporating them into national laws, policies, programs, actions and fundings. the existence of local wisdoms is hand in hand with national and regional development processes in the asean cooperation. they work in complementary way reaching simple determination of common objectives of asean, i.e. living together in peace and harmony, friendly relations among nations and maintaining peace and security in the region.31 it is a continuum process of development that will be evolved in terms of its substance as well as its procedural matters. in this regards, local wisdoms may be used as a 24 article 3 regulates that disaster response shall be guided by principles of priority, prompt, effective coordination and cooperation, partnership, sustainability, empowerment and transparency which are also principles recognised in the aadmer. 25 article 10 establishes the national board of disaster response whose functions are to coordinate and to maximize all efforts for disaster response; and article 28 regulates regional and international cooperation of the disaster response in indonesia. 26 chapter vi of the law prescribes the role and functions for effective cooperation between international humanitarian institutions and the government in disaster management in article 28 and 30. effective coordination in mitigation, emergency and reconstruction and rehabilitation are specifically stipulated in article 33. in article 30, consent and appeal-based cooperation have been set to foster national and international cooperation of disaster management. 27 chapter iv of the law regulates effective coordination between national, regional and local disaster management institutions whose functions are extensively set in articles 10 to 27. effective coordination in mitigation, emergency and reconstruction and rehabilitation are specifically determined in articles 33. 28 chapter ix of the law prescribes technical assistance in terms of supervision in the making of all disaster-friendly policy management in all sustainable development processes. article 71 determines that technical assistance shall be provided in: identification of threat, potential policy making disaster, exploitation activities, usage of goods and services, planning in the use of land, management of natural resources, reclamation and budget-based allocation for disaster management. 29 chapter iii of the law regulates on resource mobilization by specifying the responsibilities and authorities among disaster management stakeholders and beneficiaries in a very rigid attribution. for example, articles 5 and 8 states that government and local government have primary responsibilities to assess and to guarantee the fulfillment of basic needs of the refugees and internally displaced persons during emergency phase. 30 government regulation. no 22 of 2008 regarding the financial arrangement of the disaster management on 28 february 2008 and government regulation no. 23 of 2008 regarding the role and function of international organizations on disaster management on 28 february 2008. 31 see the asean charter, art.1. national wisdoms and the asean human rights legal regime heribertus jaka triyana 58 | udayana journal of law and culture vol. 01 no.1, january 2017 53 tool for regional social engineering within southeast asian countries. at the end, integration marked by sharing common wisdoms will legitimize righteous and legal entitlement of the asean human rights regime in southeast asian countries. iii. concluding remarks this article has discussed the existence of the asean human rights norms and mechanisms for effective and practical human rights advocacy and adjudication in order to reveal legal expectation for the southeast asian people. it may be recommended that better approach on thematic human rights issues should be highlighted in order to reveal the aforementioned expectation. it reveals that there is tremendous influence for better human rights advocacy at strategic level within asean cooperation. unfortunately, it has less attention at the operational and tactical levels. at the same time, human rights adjudication has far beyond its reach due to its limited mandate and function. remarkably, its institutionalization has led to public awareness and scrutiny for better improvement of its capacity in the future as requisite to establish a more powerful institution, that is the asean human rights court. wisdoms have been construed in legal manner creating distinct asean human rights regime focussing on collective rights and thematic issues. local wisdoms, especially, have been formalised in order to create distinct sub regional human rights norms and mechanisms contextualising way of life of the southeast asian peoples. one hand, it is true that there are still so many efficacies in terms of human rights enforcement mechanisms. on the other hand, it shows strong willingness to behave and to be bound by common legal wisdoms of legal rights of righteous and entitlement. | 54 bibliography books beitz, charles r. the idea of human rights.london: oxford university press, 2009 direktorat jenderal kerjasama asean deplu. asean selayang pandang. 2007. holmes, jt. the principle of complementarity in lee, r.s. (ed). the international criminal court: the making of the rome statute, issues negotiations results. the hague, boston: kluwer law international, 1999 holmes, jt. complementarity: national court vs. the icc in antonio cassese et all. (eds). the rome statute of the international criminal court. london: vol. i, oxford university press, 2002 human rights resource center, rule of law untuk hak asasi manusia di kawasan asean, studi data awal, jakarta: ui press, 2001 hunter, david, james salzman, and durwood zaelke, international environmental law and policy. new york: foundation press, 2002 kjaerum, mortem. national human rights institution implementing human rights. leiden: martinus nijhoff publisher, 2003 katsumata, hiro. asean’s cooperative security enterprise, norms and interests in the asean regional forum. palgrave mcmilan, 2009 pacific forum secretariat. national human rights institutions pathways of the pacific states. pacific islands forum secretariat, 2010 rehman, j. international human rights law, a practical approach. longman: pearson education limited, 2003 stingen, jo. the relationship between the international criminal court and national jurisdictions, the principle of complementarity. leiden: martinus nijhoff publishers, 2008 tood landman. studying human rights. new york: routledge, 2006 wahyuningrum, yuyun. “regional limitation and universality of human rights in asean”. paper presentation at the padjadjaran international conference on international law, faculty of law padjajaran university – bandung, 2013 yigen, et all. national human rights institutions: articles and working papers. the danish center for human rights. denmark: wilden plada, 2004 national wisdoms and the asean human rights legal regime heribertus jaka triyana 60 | udayana journal of law and culture vol. 01 no.1, january 2017 55 journals jaka triyana, heribertus. “tinjauan yuridis tentang badan ham asean dalam sistem hukum nasional indonesia”. mimbar hukum 23, no. 3 (2011) jaka triyana, heribertus. “the implementation of natural disaster management program in indonesia between 2007 and 2013”, mimbar hukum 25, no. 1 (2011) luningning g, camoying. “establishing an asean human rights mechanism: development and prospects”, insights, issue no. 1 (march 2005) paper jaka triyana, heribertus. “politics and law of human rights in southeast asia: a critical legal analysis”. presented at the short course on human rights and democracy in southeast asia for the asean diplomats, 24-25 august 2009. pusat studi sosial asia tenggara (pssat ugm)-deplu ri, yogyakarta, 2009 legal documents asean masterplan 2020 asean human rights declaration charter of the southeast asian nations government regulation no. 22 of 2008 regarding the financial arrangement of the disaster management government regulation no. 23 of 2008 regarding the role and function of international organizations on disaster management human rights committee, general comment 3, article 2, para 1, implementation at the national level (thirteenth session, 1981), compilation of general comments and general recommendations adopted by human rights treaty bodies, un doc. hr1/gen/1/rev.1 at 4 (1994) law of the republic of indonesia no. 39 of 1999 concerning human rights law of the republic of indonesia no. 24 of 2007 concerning natural disaster management process phnom penh statement on the adoption of the asean human rights declaration (ahrd). 18 november 2012 | 56 terms of references asean intergovernmental commission on human rights internet asian disaster preparedness center, critical guidelines community-based disaster risk management (bangkok, 2006), 28-45.http://www.preventionweb. net/files/9440_adpccriticalguidelines.pdf united nations high commissioner for human rights. frequently asked questions on a human rights based approach to development cooperation. new york: un publisher, 2006.http://www.ohchr.org/documents/publications/faqen.pdf ident-obama-kenyan-people national wisdoms and the asean human rights legal regime heribertus jaka triyana | 16 indigenous people, economic development and sustainable tourism: a comparative analysis between bali, indonesia and australia putri triari dwijayanthi*1 student at faculty of law udayana university kali jones**2 student at charles darwin university school of law ni gusti ayu dyah satyawati***3 lecturer at faculty of law udayana university * correspondence: putritriari@gmail.com ** correspondence: kali.laurenwatson@gmail.com *** correspondence: dyah_satyawati@unud.ac.id abstract tourism is one of the world’s fastest growing industries and has been used as a vehicle for indigenous people to engage in economic development opportunities within their local communities. the concept of sustainable tourism has brought greater awareness towards maintaining the economic and social advantages of tourism development whilst ensuring the industry is both socio-cultural and environmentally sustainable. a central component to the definition of sustainable tourism is the empowerment of indigenous people to take advantage of the benefits of the tourism industry. this article will demonstrate that in certain instances there is conflict between indigenous peoples’ culture, particularly communal ownership of land and the tourism industry. this research uses comparative analysis between bali, indonesia and the northern territory of australia to analyse the social and legal impediments, which affect the potential of local indigenous people to contribute to sustainable tourism. the conclusion drawn in this article is that both indonesia and australia have attempted to provide legal frameworks to promote tourism and development alongside indigenous people, however in both cases the tourism industry has not always been easily applicable to indigenous people’s concept of land ownership and communal sharing of economic assets. keywords: indigenous people, tourism, bali, australia. i. introduction 1.1. background as one of the world’s fastest growing industries, international tourism has begun to place a greater emphasis on mitigating the negative effects of the industry. the concept of sustainable tourism has brought greater awareness towards maintaining the economic and social advantages of tourism development whilst ensuing the industry is socially, culturally, and environmentally sustainable. a central objective within sustainable tourism industry is to empower local indigenous people’s ability to harness the economic advantages of tourism whilst maintaining their natural heritage, environment and biodiversity. sustainable tourism also advocates respecting the socio-cultural authenticity of host communities, which together along with stakeholder will ensure viable, long-term udayana journal of law and culture vol. 01 no. 1, january 2017, pp. 16-30 e-issn 2549-0680 22 | udayana journal of law and culture vol. 01 no.1, january 2017 17 economic operations resulting in socio-economic benefits to all parties.1 despite an underlying philosophy of enhancing indigenous advancement through sustainable tourism, there still remains significant social and legal impediments which restrict indigenous people from fully engaging in the sustainable tourism industry. the united nations world tourism organisation defines sustainable tourism as “tourism that takes full account of its current and future economic, social and environmental impacts, addressing the needs of visitors, the industry, the environment and host communities.”2 it is broadly agreed that sustainable tourism is a valuable vehicle to pursue investment and business opportunities for indigenous communities. environmental and cultural protection are critical for survival of indigenous peoples, since their traditional way of living is likely to have a closer relationship with surrounding environment and a higher dependency on nature.3 indigenous people also have historical cultural knowledge about their community structures, beliefs and surrounding environment. sustainable tourism, unlike other resource intensive industries, has the potential to achieve development in communities in a suitable manner if managed properly.4 the acknowledgment and recognition of indigenous people’s rights are also core components to sustainable tourism outlined in several international treaties and declarations. for example, article 3 of the united nations declaration on indigenous people, it is stated that: “indigenous peoples have the right to self-determination. by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”5 as indigenous rights have been enshrined and recognised across the globe, the collective rights of the indigenous people shall be managed properly. while indigenous people have participated in the tourism industry, the expansion of economic activities associated with tourism has sometimes resulted in economic leakage from the region, or an unfair distribution of wealth. compounding the unequal distribution of wealth, there is also conflicting beliefs about collective models of land ownership versus the individual nature of the tourism industry. 1.2. central legal issue and purpose of writing this article will primarily assess the impacts of the tourism industry on the collective rights of indigenous people seen from a legal perspective. some other 1 united nations, “sustainable tourism,”https://sustainabledevelopment.un.org/topics/sustainabletourism. 2 world tourism organization, “definition: sustainable development of tourism,”http://sdt. unwto.org/content/about-us-5 3 rie yamaoto, “indigenous tourism and destination development,”iiiee master’s theses 2005, https://lup.lub.lu.se/luur/download?func=downloadfile&recordoid=1327691&fileoid=1327692 4 ibid. 5 declaration on the rights of indigenous peoples, ga res 61/295, un gaor, 61st sess, 107th plenmtg, supp no 49, un doc a/res/61/295 (13 september 2007). | 18 perspectives, such as economic and socio-cultural, will also be used. this paper aims to evaluate the contemporary legal framework and the management systems witnessed in australia and indonesia and recommend areas for reform, which will better empower indigenous people to participate in the sustainable tourism sector. furthermore, it is also intended to evaluate any barriers which indigenous people face when participating in sustainable tourism, including in particular social and legal impediments. 1.3. methodology and structure of the article this article is best described as comparative legal research. in order to identify contemporary issues, which may impact on indigenous peoples capacity to fully participate in development opportunities that may exist on their land, this article provides a comparative analysis between local indigenous communities in indonesia and australia and evaluate the socio-economic and legal frameworks in each country. it will discuss the collective rights of the indigenous people of bali, indonesia, and compare it with the indigenous people in australia, using the cases of kakadu national park and tenganan village. the overarching analysis focuses on the tourism impacts on indigenous people and the conflict between collective ownership of land and the individual nature of business in the tourist industry. in order to achieve its objectives, this article is structured as follow. section 2.1 will provide a descriptive analysis with regards to the issue of tourism industry and indigenous people in bali. in this regard, the analysis will first identify communal rights of the balinese people in tourism as provided in section 2.2. similarly, the issue of tourism industry and indigenous people in australia will also be described by illustrating the policy on the national parks as discussed in section 2.3 and 2.4. afterwards, section 2.5 and 2.6 will analyse social impediments for indigenous people and legal impediments against the development of sustainable tourism. subsequently, section 2.7 discusses a comparative analysis between bali and northern territory of australia. finally, conclusion and recommendations will be given in section 3.1 and 3.2 ii. local wisdoms for asean human rights to development advocacy 2.1. tourism industry and indigenous people in bali profit generated from tourism in bali has provided substantial revenue for indonesia. governor of bali, made mangku pastika stated the amount of the financial contribution from tourism in bali was estimated at idr 47 trillion for 2015.6 bali 6 rofiqi hasan, “bali inginkan bagi hasil pendapatan pariwisata,”http://nasional.tempo.co/read/ news/2015/09/09/058699194/bali-inginkan-bagi-hasil-pendapatan-pariwisata indigenous people, economic development and sustainable tourism: a comparative analysis between bali, indonesia and australia putri triari dwijayanthi, kali jones, ni gusti ayu dyah satyawati 24 | udayana journal of law and culture vol. 01 no.1, january 2017 19 province recorded economic growth in the third quarter of 2015 at approximately 5.62% to 6.62%.7 unfortunately, there is no specific regulationwithin the current indonesian legal framework that requires profit sharing with the indigenous people. article1 paragraph (4) of the indonesian tourism act specifically details the importance of positive interaction between tourists, the community and the role of national and local government. article 2 of the act details a list of principles i.a benefit, sustainability, sustainable development and equality, which the tourism industry in the territory of indonesia, including bali, should follow. in order to achieve the objectives of the tourism regulation, the act also covers the manner in which tourism is developed, which clearly states that such development must take into account the uniqueness of culture.8 thus, the arrangement of the strategic areas of tourism is required to pay attention to cultural, social and religious aspects of the local communities.9 the idea of community empowerment starts from the planning, utilization and control for indigenous communities. such elements are the core pillars outlined in article 5 of the global code of ethics for tourism adopted by the world tourism organization, which specifies that the world’s local populations should be associated with tourism activities should be shared equitably with indigenous communities.10 in addition to the sectoral laws, regulation on tourism is also stipulated in the regulation of the minister of home affairs no. 33 of 2009 on guidelines for ecotourism development in the region. the regulation outlines the importance of ecotourism with regard to elements of education, understanding, and support for the efforts of conservation of natural resources, as well as increased income of local communities. thus, based on the laws and regulations in indonesia, local communities must be empowered and their general welfare considered within the management practices of tourism operations. 2.2. communal rights of the balinese people in tourism the development of tourism in bali has significantly affected the local people. fact shows that the tourism industry has become a livelihood mainly for those who live close to tourism destinations.11 it has also affected the existence of balinese 7 ibid. 8 act of the republic indonesia no. 10 of 2009 concerning tourism, art. 6. 9 ibid., art. 12 paragraph (3). 10 united nations world tourism organization, “global code of ethics for tourism,” http://ethics. unwto.org/en/content/global-code-ethics-tourism. 11 tjok istri putra astiti and i ketut sudantra, “reflecting on tourism activities in bali: a discourse on communal rights, culture and hindu values,” in sustainable tourism and law, eds. michael g. faure, ni ketut supasti dharmawan and i made budi arsika (den haag: eleven international publishing, 2014), 235. | 20 traditional community, called desa pakraman or desa adat, especially in the matter of land issue. this desa pakraman has had a peculiar tradition and social demeanour of hindus for generations, by owning an area of land as a collective. the system determines their rights to manage their own organization and land.12 the -desa pakraman as a traditional village in bali is a legal community (masyarakat hukum), whose customary rights (hak-hak adat) have been recognized and protected by the 1945 constitution of the republic of indonesia (hereinafter, indonesian constitution). there are two provisions laid down in the indonesian constitution addressing traditional communities and their rights. article 18b paragraph 2 states that: “the states recognizes and respects traditional communities along with their traditional customary rights as long as they remain in existence and are in accordance with the societal development and the principles of the unitary state of the republic of indonesia, and shall be regulated by law.”13 following the provisions stipulated in the indonesian constitution, the right of indigenous people is also mentioned in article 6 paragraph (1) and (2) of the act of the republic of indonesia no. 39 of 1999 concerning human rights, which states: “in order to enforce human rights, differences and needs of indigenous people must be paid attention to and protected by the law, government and society; the cultural identity of the local community including their tanah ulayat (the communal right for land) is protected accordance with the development.” furthermore, the communal rights of a traditional community in bali are represented by desa pakraman.14 it consists of individuals who live in a territory or village and have traditionally become members, in which they voluntarily accept the obligations determined by desa pakraman.15 some problems have arisen when tourism activities affected the communal rights of the traditional community in bali. for example, the construction hotels, villas and resorts are set up in productive rice fields, where the water is used to supply swimming pools.16 permits issued by the local level of the indonesian government have been used by tourism entrepreneurs to justify their activities, where in many cases, desa pakraman beliefs, norms and values are incompatible with the tourism activities.17 in some instances the communal rights of the balinese traditional community have been endangered instead of promoted by the tourism industry.18 12 see regulation of the province of bali no. 2 of 2012 concerning culture tourism of bali, art. 1 (5). 13 the 1945 constitution of the republic of indonesia, art. 18b paragraph 2 14 tjok istri putra astiti and i ketut sudantra, op.cit.,13. 15 ibid. 16 ibid. 17 ibid. 18 ibid. indigenous people, economic development and sustainable tourism: a comparative analysis between bali, indonesia and australia putri triari dwijayanthi, kali jones, ni gusti ayu dyah satyawati 26 | udayana journal of law and culture vol. 01 no.1, january 2017 21 however, not in all cases is there an erosion of the rights of traditional people due to tourist activities. for example, the village of tenganan in bali started to develop economic tourism in the early 1980’s. since the integration of tourism, tenganan has maintained a traditional way of living. astiti, et al., observed, “[r]emarkably, the development of tourism in the village has not led to an individualization process (the process by which the certificates of collective ownership would be converted into individual ownership).”19 in many ways, tenganan is different from other villages in bali, where individualism has been responsible for transforming communal land, such as tanah ayahan desa (the land controlled by the traditional village) into private land and land belonging to the community was sold by individuals.20 however the villagers in tenganan realize that the “very fact that their village is traditional and unique is precisely what makes it so attractive for tourists”21 unlike some other areas of bali, tenganan also maintains their customary laws (awig-awig), which prohibits the transfer of land to outsiders, meaning the local indigenous people still maintain their collective rights to land.22 2.3. tourism industry and indigenous people in australia like bali, tourism in northern territory of australia is a significant contributor to the country’s economy, identity and future prosperity. for example in 2014, total tourism spending contributed almost 3 per cent of australia’s gdp — about one-third of this ($11 billion) was by international visitors. international tourism’s share of total service exports was just over 60 per cent in 2014.23 the tourism industry in australia is regulated by the competitions and consumer act 2010 and consumer law, with state and territory related legislation. sustainable tourism and environmental protection relies on the environmental protection and biodiversity conservation act 1999. within australia’s tourism sector, the idyllic natural beauty and unique indigenous culture has historically been depicted to promote australia as an intern aboriginal and torres strait islander heritage protection act 1984 ational tourism destination.24 in australia, the indigenous tourism 19 tjokorda istri putra astiti, anak agung istri ari atu dewi and michael faure “tourism development and customary land law in bali”, southwestern journal of international law 20, no. 1 (2013): 121, http://www.esl.eur.nl/fileadmin/assets/frg/arw/rile/front.pdf 20 ibid. 21 ibid. id.,134 22 gadjah mada university, “menjaga hutan ala masyarakat kajang dan tenganan”, http://www. ugm.ac.id/en/berita/4593-menjaga.hutan.ala.masyarakat.kajang.dan.tenganan. 23 australia international tourism industry, “productivity commissions research paper,” 2http:// www.pc.gov.au/research/completed/international-tourism/international-tourism.pdf. 24 dina james, jocschmeiechen, “enriching the experience, ”http://www.crctourism.com.au/wms/ upload/resources/100024%20james%20enriching%20the%20experience%20web.pdf. | 22 industry is a $3.8 billion annual economy, catering to 689,000 international visitors in 2010 and 306,000 overnight domestic indigenous trips.25 currently, there are two spheres in which potential for indigenous sustainable tourism can be observed. in the first sphere, national parks and heritage listed areas are protected under the aboriginal and torres strait islander heritage protection act 1984 and the protection of movable cultural heritage act 1986. majority of national parks are situated on aboriginal land, allocated under the aboriginal land rights (northern territory) act 1975 (alra). the land rights incorporation of indigenous people’s notions of land ownership into national and domestic legislation was an achievement of the indigenous land rights movement. the act granted interest in land from commonwealth and state back to the traditional owners or the land. further to this the native title act was another piece of legislation enacted after the historical high court mabo case.26 title to aboriginal land in the national parks is held by aboriginal land trusts. the land trusts have leased their land to the director of national parks so that it can be used as a national park for the enjoyment and benefit of all australians. different parks have various models of co-operative management with indigenous people and government. these models help promote inclusivity, sustainability and maintaining bio-diversity with profit being generated back to the management and promotion of the parks. this paper will investigate kakadu national park in the northern territory as an ideal model for sustainable tourism. the second sphere, which falls outside the preview of national parks, relates to legal and social implications associated with inadequacies of certain amendments and provisions of the alra. it will be argued that these implications have directly impacted on indigenous people’s ability to participate in industries such as sustainable tourism and provided recommendation for reform through comparative analysis. 2.4. national parks the enactment of the alra had substantial impacts on indigenous people’s ability to control and develop their own land. it was also a step forward in providing a legal mechanism for indigenous empowerment and control. since the enactment of land rights, the legal framework, which provides the foundation for growth in indigenous tourism, is spread amongst specific state and territory laws, broader national legislation and government agencies. 25 michelle wranik, “indigenous tourism in australia,”http://travel.cnn.com/sydney/visit/indigenous-tourism-australia-906531. 26 mabo and others v. queensland (no. 2) (1992) 175 clr 1. indigenous people, economic development and sustainable tourism: a comparative analysis between bali, indonesia and australia putri triari dwijayanthi, kali jones, ni gusti ayu dyah satyawati 28 | udayana journal of law and culture vol. 01 no.1, january 2017 23 indigenous traditional owners and government employees jointly manage kakadu national park.27 according to parks australian sustainable overview 20112016 a key strategy is to develop tourism in collaboration with boards of management, that identify the goals of traditional owners in tourism to be implemented by jointly. however, the report also mentioned there was limited interest in indigenous people to form their own tourism business within the park and to date there has only been small examples of tourism ventures in national parks owner by indigenous people.28 traditional owners were more engaged in the preservation, education and environmental management of the park. the case of kakadu suggests that a co-operative model which prioritizes sustainable tourism and empowers indigenous peoples to control their own national heritage and culture whilst promoting investment is achievable. however, despite having legal and governmental internal infrastructure, there are pre-existing social issues which have widened the “enterprise gap” existing between indigenous communities and the mainstream industry sector.29 2.5. social impediments for indigenous people outside the jurisdiction of national parks, investment and development of indigenous tourism becomes more complex. aboriginal-owned tourism ventures are a growing segment of the australian tourism industry, mainly since the 1990s.30 however, the industry still has structural and legal impairments, which have been burdened by historical social discrimination of indigenous people. for example, traditional marketing approaches of indigenous tourism have been criticized for only depicting imagery of indigenous people as “tribal” and “primitive” people who play “didgeridoos.” such perceptions have rendered aboriginal people ‘invisible’ in contemporary australian life and impact on the public perception of indigenous people’s ability to engage in corporate enterprise. low living standards, welfare dependency, systemic disadvantages and racial discrimination are significant factors, which have produced adverse influences upon indigenous peoples engagement with mainstream western society.31 therefore the manner in which indigenous people are included and empowered to be a leading force within any mainstream industry can, in certain circumstances be limited. 27 director of parks report, “parks australia: sustainable tourism overview (2011-2016),”https:// www.environment.gov.au/system/files/resources/ed9f71b7-edbc-4a9f-801d-0457aa7b763b/files/sustainable-tourism.pdf 28 ibid. 29 don fuller, susan bandias, and darius pfitzner, “utilizing aboriginal land in the northern territory,”http://www.cdu.edu.au/sites/default/files/paperleasingaboriginalland.pdf. 30 wranik, op.cit, 27. 31 fuller, bandias & pfitzner, op.cit, 30 2. | 24 2.6. legal impediments against the development of sustainable tourism connection to land is fundamental to indigenous culture and history. indigenous people’s concept of land ownership starkly differs from traditional notions of property ownership. culturally boundaries cut across the vast area of land were fixed by “dreaming” creation stories. each indigenous person belonged to a family group who has a spiritual connection with the land, “hence land was not owned; one belonged to the land.”32 given 55% of land in the northern territory is claimed under the native title act 1999 native title33 the strength and rigor of the internal legal infrastructure, which is responsible for governing development in indigenous communities is critically important. over-time there has been significant amendments to alra since it passed parliament with bi-partisan supports. the amendments reflect the tensions between western perceptions of socio-economic development and indigenous peoples concept of collective land ownership. a central theme to indigenous peoples around the world is emphasis on the importance of communal land rights. this has directly conflicted with the idea of individual property rights, which are portrayed as a necessity for economic development. to illustrate this point in legal context the 2006 amendments to the alra will be evaluated. several changes to the alra have been made since its enactment. however, provision 19a was the most controversial, since it provided with the consent of the land councils and traditional owners alongside ministerial approval. a 99-year lease over a township on aboriginal land could be granted to a nt or commonwealth government ‘entity’.34 as argued by the social justice commissioner, tom calma, the original intent of land rights was to return autonomy and decision-making power to aboriginal people for their own development. he argued; “self-determination is not: simply about achieving better socioeconomic outcomes; it is also about the right and power of indigenous australians, as a distinct peoples, to decide what development they want, how they want to achieve it, and what aspects of their laws, culture and values they will retain or give up in the process.”35 since the enactment of the amendment, the lease provisions have been accused of not following the underpinning objective of the land rights act whilst creating a 32 dudgeon, wright, paradies, garvey & iain walker, “social, cultural and historical context of aboriginal and torres strait islander australians,” http://aboriginal.telethonkids.org.au/media/54859/ part_1_chapter3.pdf. 33 fuller, bandias&pfitzner, op.cit., 40. 34 sean brennan, “economic development and land council power: modernising the land rights act or same old same old?,” indigenous law reporter, 10 (4) (2006),14,17–18. 35 ibid., 15. indigenous people, economic development and sustainable tourism: a comparative analysis between bali, indonesia and australia putri triari dwijayanthi, kali jones, ni gusti ayu dyah satyawati 30 | udayana journal of law and culture vol. 01 no.1, january 2017 25 power imbalance between government, other “entities” and local indigenous elders. given the already existing severe systemic disadvantage in indigenous communities, the need for basic infrastructure and services is prioritised over a western concept of tenure and commercial enterprise. this was illustrated in the elcho island lease in which the minister, mr brough, confirmed that agreement to a township lease was a precondition for commonwealth funding of 50 new houses on elcho island. aside from indigenous people prioritising basic needs above development. the amendments, at their fundamental core demonstrated the differences between communal ownership over land and the assumption held by industry that indigenous people would forgo their right to engage in commercial development over large areas of vacant land for ninety-nine years.36 so as industry can have security of tenure which in itself indicates that indigenous people are not capable of facilitating their own development. creating enterprise and industry through the empowerment of indigenous people using their own assets such as land was a strong driver behind the land rights movement. critical statutory bodies, which were created under the authority of the alra, are land councils. there are two land councils covering the northern territory, the northern land council and the central land council. despite playing a significant role in highly cultural sensitive and complex environment, land councils have both encroached and facilitated indigenous development and engagement with industries such as sustainable tourism. councils are said to have “shifted awkwardly between acting as managers, advocates and protectors. in so doing, they have been accused periodically of autocracy, obstructionism and of favouring the interests of their own executives above all else”.37 in response to inadequacies experienced with the enormity of land councils, another draft of amendments recently passed the australian senate. indigenous affairs minister nigel scullin stated the intention of the amendments was for indigenous landowners and community members to play an integral role in fostering economic development in their communities. the changes support aboriginal people in the northern territory to make decisions about their own land within commercial timeframes. the changes are an attempt to de-centralise the land councils power in order to accommodate small indigenous organisations. an example of a small organisation, which is built on the principle of indigenous sustainable tourism is lirrwi tourism, an indigenous controlled company which explores arnhem land with tourists. whilst, land councils have been a forum for engagement and discussion for issues relating 36 central land council, “land reform in the northern territory: evidence not ideology,” http:// www.clc.org.au/files/pdf/alra_clc_tenure_paper_-_final.pdf. 37 amost akin, “aboriginal land rights out of step “, http://www.theaustralian.com.au/news/features/aboriginal-land-rights-out-of-step/story-e6frg6z6-1227007700222. | 26 to the environment such as land claims; national park management; sacred site protection and site clearances, land management programs and future investment projects which pertain to indigenous land.38 the enormity of the councils has been a source of political debate. there has been a stronger push from local indigenous groups to form their own organisations in order to better represent the needs and interests of their communities. due to the diverse nature of land councils, they have been criticised as being politically polarised, which often means that it is difficult to get approval for certain groups to use their land for commercial activities. in the words of indigenous activist noel person indigenous australians have become “land rich but dirt poor.”39 2.7. comparative analysis in bali, the ownership of the land can be divided into two groups they are, the land owned by by the village and the land owned by individuals.40 the regulation regarding the ownership of the land in bali is regulated in adat law or awig-awig, which is still accepted and implemented by the people.41 in tenganan village, the right to ownership of the land is divided into an individual right and also collective rights.42 the right to ownership of land in tenganan village is regulated by adat law, which also known as awig-awig.43 the awig-awig of tenganan village prohibits the transfer of right to land by selling, mortgaging, or any other means, to those living outside the village.44 the indigenous people in tenganan strictly follow this regulation until today. by preserving their traditional culture, tenganan has been viewed as an auth14.817entic tourist destination. australia has similar issues in a different context. like indonesia, indigenous people in australia witnessed their rights enshrined law. however, as demonstrated above, social factors remain a barrier for full participation in industries where indigenous people are more likely to portray a willingness to be involved in, such was the case in kakadu national park. compounding these challenges is the assumption that the tourism industry itself relies on an individualised industry, which does not incorporate consideration of the communal ownership of land rights. this was clearly evident in the 2006 amendments to the alra. however, in evaluating 38 ibid. 39 ibid. 40 i ketut artadi, hukum adat bali, (denpasar pustaka bali post, 2012), 133. 41 tolib setiady, intisari hukum adat indonesia: dalam kajian kepustakaan, (bandung: alfabeta, 2013), 3. 42 ibid. 43 ibid. 44 tjokorda istri putra astiti, anak agung istri ari atu dewi and michael faure, op.cit, 129 indigenous people, economic development and sustainable tourism: a comparative analysis between bali, indonesia and australia putri triari dwijayanthi, kali jones, ni gusti ayu dyah satyawati 32 | udayana journal of law and culture vol. 01 no.1, january 2017 27 the case study of tenganan, there is potential to reconcile the difference between communal ownership of land whilst maintain cultural heritage and authenticity. by maintaining this form of collective land rights indigenous people are more likely to be involved in industries, which promote sustainable tourism. iii. concluding section 3.1. conclusion indigenous people have a meaningful contribution to make towards the sustainable tourism industry. their connection to land and culture provides for an authentic experience and allows visitors to share their cultural heritage. the concept of sustainable tourism strongly includes the empowerment and engagement of indigenous people. this is reflected both national and international laws. both indonesia and australia have attempted to provide legal frameworks to promote tourism and development alongside indigenous people, however in both cases the tourism industry has not always been easily applicable to indigenous people’s concept of land ownership and communal sharing of economic assets. 3.2. recommendations in the implementation of ecotourism activities in the area of tenganan, although able to maintain their communal rights the local community has not fully enjoyed economic benefits they should enjoy. the perception of injustice among the tourism entrepreneurs and villagers in tenganan in terms of profit sharing is one of the problems that are yet to be overcome. a system in which there is government support and joint management, similar to what has been established in australia, evident in the case of kakadu national park could be adapted to suit an indonesian context. in addition, in indonesia it is important for the government to impose regulations, which specifically regulate the rights of indigenous people and the manner in which wealth is distributed in indigenous communities through the tourism industry. | 28 bibliography books artadi, i ketut. hukum adat bali. denpasar: pustaka bali post, 2012 astiti, tjok istri putra and i ketut sudantra, “reflecting on tourism activities in bali: a discourse on communal rights, culture and hindu values,” in sustainable tourism and law, edited by michael g. faure, ni ketut supasti dharmawan and i made budi arsika. den haag: eleven international publishing, 2014 setiady, tolib. intisari hukum adat indonesia: dalam kajian kepustakaan, bandung, alfabeta, 2013 journals astiti, tjokorda istri putra, anak agung istri ari atu dewi and michael faure. “tourism development and customary land law in bali”, southwestern journal of international law 20, no. 1 (2013): 119-140. http://www.esl.eur.nl/fileadmin/assets/frg/arw/rile/front.pdf brennan, sean. “economic development and land council power: modernising the land rights act or same old same old?.” indigenous law reporter 10 (4) (2006) paper fuller, don, susan bandias, and darius pfitzner. “utilizing aboriginal land in the northern territory.”, https://www.cdu.edu.au/sites/default/files/paperleasingaboriginalland.pdf legal documents declaration on the rights of indigenous peoples, ga res 61/295, un gaor, 61st sess, 107th plenmtg, supp no 49, un doc a/res/61/295 (13 september 2007) united nations world tourism organization global code of ethics for tourism indigenous people, economic development and sustainable tourism: a 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amost. “aboriginal land rights out of step.“http://www.theaustralian.com. au/news/features/aboriginal-land-rights-out-of-step/story-e6frg6z61227007700222 australia international tourism industry. “productivity commissions research paper.” 2http://www.pc.gov.au/research/completed/international-tourism/ international-tourism.pdf director of parks report. “parks australia: sustainable tourism overview (20112016).”https://www.environment.gov.au/system/files/resources/ed9f71b7-edbc-4a9f-801d-0457aa7b763b/files/sustainable-tourism.pdf central land council. “land reform in the northern territory: evidence not ideology.” http://www.clc.org.au/files/pdf/alra_clc_tenure_paper_-_final.pdf dudgeon, wright, paradies, garvey & iain walker. “social, cultural and historical context of aboriginal and torres strait islander australians.” http://aboriginal.telethonkids.org.au/media/54859/part_1_chapter3.pdf | 30 gadjah mada university. “menjaga hutan ala masyarakat kajang dan tenganan.” http://www.ugm.ac.id/en/berita/4593-menjaga.hutan.ala.masyarakat. kajang.dan.tenganan. hasan, rofiqi. “bali inginkan bagi hasil pendapatan pariwisata.” http://nasional. tempo.co/read/news/2015/09/09/058699194/bali-inginkan-bagi-hasilpendapatan-pariwisata james, dina, jocschmeiechen. “enriching the experience.” http://www.crctourism.com.au/wms/upload/resources/100024%20james%20enriching%20 the%20experience%20web.pdf united nations. “sustainable tourism,” https://sustainabledevelopment.un.org/ topics/sustainabletourism united nations world tourism organization. “global code of ethics for tourism.” http://ethics.unwto.org/en/content/global-code-ethics-tourism united nations world tourism organization, “definition: sustainable development of tourism,”http://sdt.unwto.org/content/about-us-5 wranik, michelle. “indigenous tourism in australia.”http://travel.cnn.com/sydney/visit/indigenous-tourism-australia-906531 yamaoto, rie. “indigenous tourism and destination development.”iiiee master’s theses 2005.https://lup.lub.lu.se/luur/download?func=downloadfile&rec ordoid=1327691&fileoid=1327692 indigenous people, economic development and sustainable tourism: a comparative analysis between bali, indonesia and australia putri triari dwijayanthi, kali jones, ni gusti ayu dyah satyawati e-issn 2549-0680 vol. 7, no. 1, january 2023, pp. 25-42 doi: https://doi.org/10.24843/ujlc.2023.v07.i01.p02 this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licenses/by/4.0/) 25 distinguishing german residential and commercial tenancy law: are tenant and landlord in an equal position? christin eissing* faculty of management, social work, and construction, university of applied science and art, holzminden, germany abstract the german housing market, particularly in major cities, is very tight. this situation makes tenancy law the issue that has attracted the most attention in local and federal elections. this article presents and illustrates various methods of protecting the individual parties to a lease contract. besides, it highlights the differences between residential tenancy law and commercial tenancy law and explains why legislation distinguishes between these two types of tenancies. this research establishes arguments and interpretations from relevant laws and regulations, including the german civil code and german general equal treatment act, and judicial decisions that clarified the legal relations between tenants and landlords. this article concludes that tenancy law in germany distinguishes in different ways between residential tenancy law and commercial tenancy law from legal, social, and economic perspectives. it also infers that the provisions stipulated in german tenancy law protect the tenant's right while remaining attractive for landlords to offer the house(s) for rent. keywords: tenant; landlord: contractual protection; german legal system; social justice. 1. introduction the german basic law determines the federal republic of germany as a democratic and social federal state.1 it entails that the government and the legislation are concerned with ensuring that social justice and social security for the population in various sectors. the housing sector is one of the government's concerns in formulating regulations and policies that provide maximum benefits for people's prosperity, in line with the high demand for people to gain access to housing. in this context, the tenancy law becomes having a strong relevance. in germany, more than 70 percent of single-person households do not live in their own house or apartment but in rented accommodations. at around 58 percent, this also applies to the majority of the german population as a whole.2 this percentage is very high compared to other european union (eu) member states. in 2020, just under 25 percent of the *email/corresponding author: christin.eissing@stud.hawk.de 1 german basic law, art. 20. 2 federal statistical office (ed.) (2022). “distribution of the population in italy from 2004 to 2020 by tenant and owner;” https://de.statista.com/statistik/daten/studie/370713/umfrage/bevoelkerung-in-italiennach-mieter-und-eigentuemer/ https://doi.org/10.24843/ujlc.2023.v07.i01.p01 http://creativecommons.org/licenses/by/4.0/ mailto:christin.eissing@stud.hawk.de https://de.statista.com/statistik/daten/studie/370713/umfrage/bevoelkerung-in-italien-nach-mieter-und-eigentuemer/ https://de.statista.com/statistik/daten/studie/370713/umfrage/bevoelkerung-in-italien-nach-mieter-und-eigentuemer/ distinguishing german residential and commercial tenancy law: are tenant and landlord in an equal position? christin eissing 26 population of spain lived in rented accommodation and around 75 percent lived in owner-occupied housing.3 another example is italy where some 24.9 percent of its population lived in rental accommodation and 75.1 percent lived in their own houses or apartments.4 germany has a large private rental sector where landlords are typically institutions or private persons, housing is allocated based on the market and there are typically no subsidies.5 germany is a country in europe that established a rent regulation system and is classified as a thirdgeneration rent control system where rent increases are controlled within a tenancy but are unrestricted between tenancies.6 this fact emphasizes the importance of tenancy law and tenant protection, especially in germany, because the state is obliged to ensure social justice and social security. the state is responsible for preventing people from becoming homeless due to losing their rented apartment or paying enormously high rents so that they cannot afford other necessities. currently, single-person households in germany have to spend an average of just over a quarter of their net income on rent payments. the additional costs for electricity, waste disposal, property tax, water supply and disposal, street cleaning, heating, and some other costs that are regulated by german operating costs regulation7 are their extra regular spending.8 rising gas prices due to the russia-ukraine conflict are also an additional financial burden for tenants that pushes up the total amount of the rent, including the utilities and heating costs, which requires the state to intervene on that issue. for example, the gas price brake or additional financial support for low-income earners or students. it is generally understood that the relationship between landlord and tenant usually puts the latter in a weaker position that needs special protection from the government. the german civil code (bürgerliches gesetzbuch/bgb) regulates the rights and obligations of tenants and landlords in sections 535 – 580a. these sections describe how to ensure the 3 ibid. 4 ibid. 5 hanna kettunen and hannu ruonavaara, “rent regulation in 21st century europe. comparative perspectives,” housing studies 36. no.9 (2020):1448, 1454. 6 ibid., 1448, 1450, 1453. 7 operating expenses as a legal standard regulation: regulation on the establishment of operating costs. see thomas harborth, "housing in germany a case study in the light of government guidelines," ekonomika a management, prague university of economics and business 2 (2012): 8. 8 german operating costs regulation (betrkv), section 2. see analysis regarding this issue in julia cornelius and joanna rzeznik, “tenlaw: tenancy law and housing policy in multi-level europe,” national report for germany. deliverable no. 3.2, brussels, european commission, 2014, 63,135-138; rolf müller, “tenancy law and energy renovation in european comparison,” bbsr-online-publikation nr. 14/2016, federal institute for research on building, urban affairs and spatial development (bbsr) within the federal office for building and regional planning (bbr), bonn, 84; and rödl & partner, “landlordto-tenant electricity generated from pv power plants: are you still supplying or already,” 20 may 2021, https://www.roedl.com/insights/renewable-energy/2021/may/landlord-totenant-electricity-pv-power-plants https://www.roedl.com/insights/renewable-energy/2021/may/landlord-to-tenant-electricity-pv-power-plants https://www.roedl.com/insights/renewable-energy/2021/may/landlord-to-tenant-electricity-pv-power-plants udayana journal of law and culture vol. 7 no. 1, january 2023 27 safety of the tenant and the landlord when they conclude a lease agreement. nevertheless, the laws also ensure that the landlord is protected from the misbehavior of his or her tenants. it is particularly worth mentioning that the bgb also distinguishes between private and business tenants. this article assumes that business tenants are not as inferior to the landlord as private tenants so there is greater contractual freedom and much fewer restrictions for commercial leases. this seems to indicate where the state is required to provide a guarantee of liberty for businesses against barriers stemming from private property.9 when it comes to the bgb and tenancy law, it can get a little confusing, because different rules apply to business tenancy agreements than to a residential tenancy agreement for a private individual. the original german civil code was drafted in 190010 and a lot of new regulations have been added over the last 122 years, so a significant overhaul of the tenancy law would be helpful. especially in major german cities, the real estate market is very tight, leading to some property owners taking advantage of the plight of the population and charging exorbitantly high rents because of the high demand. for this case, there are, for example, instruments such as a rent brake11 or strict regulations on rent increases.12 but if tenants do not have enough knowledge about their rights, they cannot fight for their rights properly. however, to gain benefit from the legal measures and the rights and restrictions through a lease agreement, both parties need a good overview of the relevant laws. this article critically examines the security measures for tenants and landlords that the law seeks to implement and discusses in particular, the differences between leases with private individuals and companies as contracting parties. this article presents and illustrates various methods of protecting the individual parties to a lease agreement and highlights the differences between residential tenancy law and commercial tenancy law. besides, it analyzes the reasons why german legislation distinguishes between these two types of tenants. the legal argumentation and interpretation are developed based on bgb, german general equal treatment act (allgemeines gleichbehandlungsgesetz/agg), and some relevant laws and regulations. in addition, it refers to case law settled before the german 9 see simon deakin, “private law and the new social question,“ german law journal 23 (2022): 862. 10 johannes w. flume, “strict liability in austrian and german law: on the concept of strict liability in the age of technological advancement,” journal of european tort law 12, no. 3 (2021): 210. 11 berliner-mieterverein, “rent control/rent brake in germany, for example berlin, part i berlin,” 9 january 2018, 1. https://www.berlinermieterverein.de/uploads/2018/01/rent-control-rent-brake-in-germany-iut-1-2018.pdf 12 german civil code, section 558 see also sergio nasarre-aznar, “leases as an alternative to homeownership in europe. some key legal aspects,” european review of private law 22, no. 6 (2014): 815-846; and moritz rinn, jan wehrheim, and lena wiese “how tenants’ reactions to rent increases affect displacement: an interactionist approach to gentrification,” urban studies 59, no.15 (2022): 3064. https://www.berliner-mieterverein.de/uploads/2018/01/rent-control-rent-brake-in-germany-iut-1-2018.pdf https://www.berliner-mieterverein.de/uploads/2018/01/rent-control-rent-brake-in-germany-iut-1-2018.pdf distinguishing german residential and commercial tenancy law: are tenant and landlord in an equal position? christin eissing 28 federal court of justice (bgh), as they provide a framework for the current starting position for tenants and landlords. some previous academic works have discussed the issue of contractual relations between tenants and landlords in germany. cornelius and rzeznik (2014) composed a national report on tenancy law for germany that explores various aspects of tenancy contracts, including preparation and negotiation stages, conclusion, contents, implementation, termination, and enforcement.13 braeuer, kleinebrahm, and naber (2019) analyze the techno-economic effects of the german tenants electricity law 2016 on the energy system layout of multifamily buildings that can create a symbiotic relationship between landlords and tenants because the landlord acts as the local electricity provider who sells proper price of electricity to the tenants efficiently.14 kettunen and ruonavaara (2020) conducted a comparative study of 33 european countries, including germany, to analyze the correspondence between the welfare state regime and the rent regulation system.15 some papers have discussed thematic issues related to, or covered by, the bgb, such as the limitation of claims,16 development of private law,17 historical development,18 interpretation of a contract,19 and its impact on the foreign legal system.20 differing from the topic of those studies, this article, however, focuses on the elaboration of relevant provisions of the bgb, which regulate contractual relations between tenants and landlords in germany. 2. result and analysis 2.1. freedom of contract and prohibition of discrimination before dealing specifically with the german tenancy law, it is worth mentioning that the prohibition of discrimination to protect tenants is related to the principle of freedom of contract. in general, freedom of 13 cornelius and rzeznik, op.cit, 103-183. 14 f braeuer, m kleinebrahm and e naber, “effects of the tenants electricity law on energy system layout and landlord-tenant relationship in a multi-family building in germany,” iop conf. series: earth and environmental science 323 (2019): 1-9. 15 kettunen and ruonavaara, op.cit., 1446. 16 sibilla buletsa and piotr zakrzewski, “limitation of claims in polish and ukrainian civil code against the background of the principles of european contract law and the german civil code,” journal of legal studies 24, no.38 (2019): 63-67. 17 see reinhard zimmermann, “the german civil code and the development of private law in germany” oxford university comparative law forum, 2006, https://ouclf.law.ox.ac.uk/the-german-civil-code-and-the-development-of-private-law-ingermany 18 see hannes rösler, “harmonizing the german civil code of the nineteenth century with a modern constitution--the luth revolution 50 years ago in comparative perspective,” tulane european and civil law forum 23 (2008): 1-36. 19 magdalena bławat, “the court’s interference with contracts by supplying and converting the contractual terms,” utrecht law review 18, no. 1 (2022): 78-90. 20 jacques henri herbots, “the chinese new civil code and the law of contract,” china-eu law journal 7 (2021): 40, 48. https://ouclf.law.ox.ac.uk/the-german-civil-code-and-the-development-of-private-law-in-germany https://ouclf.law.ox.ac.uk/the-german-civil-code-and-the-development-of-private-law-in-germany udayana journal of law and culture vol. 7 no. 1, january 2023 29 contract is a basic principle of contract in the context of private law.21 however, the concept of the freedom of contract in a country may differ from the concept recognized or accepted in other jurisdictions that apply distinctive legal systems.22 it seems necessary to include a historicalconceptual perspective on how freedom of contract is rooted in germany by citing klaas hendrik eller's view as follows: “in germany, it was the realist tradition that introduced a thicker concept of “contract” compared to the rather marginal idea embodied in the german civil code of 1900. not only was the codification under the influence of german idealism with its three freedoms of contract, property, and the freedom to make a will, but legal sociology was also still in its infancy and unable to call for a more contextualized assessment of contract. in fact, in the eyes of contemporary critics like otto von gierke, the codification paid insufficient reverence to the germanicist tradition, which had developed independently of a nation-state for more than a century and thus incorporated collective effects of individual rights into the idea of freedom of contract.”23 the conceptual restriction (and lack of restriction) of freedom of contract has been discussed academically from legal and economic perspectives.24 the freedom of contract applies in germany in accordance with section 311 bgb, which means that everyone is free to choose their contractual partner and the contents of the contract, as long as it does not violate applicable laws.25 on the one hand, the contract form is freely selectable for most contracts. an example of this would be a contract for a real estate purchase, which must be in writing and notarized to be valid.26 on the other hand, a rental agreement is free of form, so the tenant and landlord are free to record the agreement e.g., orally or in writing. however, here, of course, the written form is recommended in order to avoid possible discrepancies.27 the bgb also determines positive and negative obligations for tenants and landlords. on the one hand, tenants must use the rented premise as agreed upon, while on the other hand, landlords must keep the rented premise in the state as it is (contractually) agreed upon.28 21 steve hedley, “private law theory: the state of the art,” school of law, áras na laoi, university college cork (2021): 4. 22 see for example, wei wen, “formality, freedom of contract, and china's new civil code: a legal reform recommendation for land sale contracts,” university of pennsylvania asian law review 17 (2022): 334. 23 klaas hendrik eller, “comparative genealogies of “contract and society,” german law journal 21, no. 7 (2020): 1401. 24 see for example daniel müller and patrick w. schmitz, “the right to quit work: an efficiency rationale for restricting the freedom of contract,” journal of economic behavior & organization 184 (2021): 653-666. 25 german civil code, section 311. 26 ibid., section 311b. see also roland montfort, “ey global commercial terms handbook,” second edition, ey, october 2020, 106. 27 german civil code, section 550. 28 michel vols and marvin kiehl, “balancing tenants’ rights while addressing neighbour nuisance in switzerland, germany and the netherlands,” european property law journal 4, no. 2 (2015): 98. distinguishing german residential and commercial tenancy law: are tenant and landlord in an equal position? christin eissing 30 however, there is an essential restriction to the point of the free choice of the contracting parties. the agg prohibits discrimination in particular to the search for housing and extends from the newspaper advertisement to the rental to the termination of the tenancy. the individual reasons for discrimination according to section 1 agg are race, ethnic origin, gender, religion, disability, age, and sexual identity.29 if a landlord violates this law, the disadvantaged person can demand, among other things, the removal of the impairment in the case of a violation of a discrimination prohibition. a contracting obligation is derived from the obligation to make in rem restitution. if the landlord is no longer in a position to conclude a contract because, for example, he or she has rented out the apartment in the meantime, a claim for damages under section 826 bgb or sections 280 and 283 bgb or a claim for reimbursement of expenses under section 284 bgb may be considered. in addition, the disadvantaged party can sue for injunctive relief. the damage may, for example, consist of a more extended stay at a hotel or a delay in taking up a professional activity.30 the federal anti-discrimination agency's current figures show that this law is necessary to protect tenants against discrimination. according to a representative survey conducted by the federal anti-discrimination agency in 2020, around 15 percent of all respondents who have searched for accommodation in the last ten years have experienced discrimination based on race because they belong to an ethnic group or come from a different country. people with immigrant backgrounds are particularly affected by this. according to the survey, one in three apartment seekers with a migrant background (35%) said they had experienced racial discrimination.31 2.2. the german tenancy law the bgb, book 1, division 8 – “particular types of obligations”, title 5 – “lease, usufructuary lease” defines the german tenancy law in sections 535-580a.32 a rental agreement is a continuing obligation.33 a tenancy is a legal relationship or interest in properties or land in which the tenant has exclusive possession of the facilities for a specified period and pays rent to the landlord. the difference between a lease agreement and a usufruct agreement is that in a usufruct agreement, in addition to the use of the land, the lessee may also keep the fruits of the land. that is, for example, the harvest of the fields or fishing.34 29 german general equal treatment act, section 1. 30 german civil code, sections 826, 280, 283, 284. 31 federal anti-discrimination agency (2020). 32 german civil code, sections 535 580a. 33 volker emmerich, mietrecht: kommentar zu den mietrechtlichen vorschriften des bürgerlichen gesetzbuches und zum zweiten wohnraumkündigungsschutzgesetz, die miete als schuldverhältnis (berlin, j. schweizer verlag, 1981), 10. 34 german civil code, section 581. udayana journal of law and culture vol. 7 no. 1, january 2023 31 sections 535-548a bgb regulate “general provisions for leases”. the further regulations refer to these general regulations and are specified in more detail. after the general provisions for leases there are the specified regulations for “provisions applicable to leases of residential space” in the sections 549 577a. they refer to residential rental agreements with private tenants. for business tenants, the “leases of other things” apply, which is regulated in sections 578 580a.35 2.2.1. regulations to protect the landlord a landlord in germany can be a private person, a housing cooperative, or a housing company that owns a building or an area of land and is paid by the tenant for its use of it. especially when a landlord is a private person or a small real estate company, it is vital to protect them. the landlord's principal obligation is to hand over the leased property to the tenant at the agreed time in a condition suitable for its intended use and to maintain it in this condition. in return, he receives the rent payments.36 a. security deposit and extent of the security right of the lessor a rent security deposit is a crucial tool to protect the landlord from losing rent due to difficulty in getting a tenant out of the apartment, even though he or she does not pay the rent. it consists typically of three net cold rents,37 which the landlord can keep in case of non-payment to cover his or her costs. if the tenancy is terminated smoothly, the tenant will receive his or her rent security deposit back after moving out of the apartment. suppose the tenant has damaged something in the apartment during the rental period. in that case, the landlord can retain a part of the rent security deposit to replace what has been damaged.38 the landlord also has a lien on the tenant's belongings for its claims under the lease.39 b. cancellation of the lease contract under german law, a distinction can be made between two types of termination of rental agreements: ordinary termination and termination without notice. section 573 (1) bgb sets out the rules for ordinary 35 ibid., book 1, division 8, title 5. 36 ibid., section 535. 37 cold rent means that the monthly payment of the basic rent for the apartment does not require additional costs while warm rent means that the monthly payment includes the basic rent for the apartment and additional costs called apportionments or additional costs. 38 ibid., section 551. 39 ibid., section 562. distinguishing german residential and commercial tenancy law: are tenant and landlord in an equal position? christin eissing 32 termination. the landlord is entitled to terminate the lease if he or she has a legitimate interest in the termination.40 the landlord can terminate the contract without prior notice if the tenant significantly violates the rights of the landlord by endangering the rented property by neglecting the care incumbent upon him or by leaving it to a third party (a person other than the tenant and the landlord) without authorization. in addition, he may terminate the contract without prior notice if the tenant is in default of payment of the rent or a not insignificant part of the rent for two consecutive dates.41 ordinary termination is very difficult to assert. c. notice of termination for own use the german legal system, primarily its bgb, recognizes three types of termination, namely ordinary notice of termination, termination for cause without notice, and the special rights of termination. the provisions relating to the termination of tenancies are mandatory for the landlord. further, the landlord must explain the reason for the termination, otherwise it would be regarded as an unlawful termination.42 the best-known and most frequent reason for landlords to terminate a lease is "own need". pursuant to section 573 (2) no. 2 bgb, own use exists if the landlord needs the entire tenant's apartment for himself or herself or a person belonging to his or her household (e.g. a caregiver), or for a family member for residential purposes. family members for whose benefit the landlord can terminate the lease due to own needs are, for example, parents or children, grandchildren or siblings of the landlord. as a rule, more distant family members are not included.43 the landlord must need the apartment. the bare desire to live within one's own four walls is insufficient. own need is only present if the landlord can give reasonable and understandable reasons why he, she, or a beneficiary wants to move into the apartment. the reasons may be the plan to establish a retirement residence for himself or herself, or the urgent needs of his/her family member to use it. in this situation, the landlord must state in writing in the letter of termination for which person he or she needs the apartment and he or she must describe a concrete fact on which he or she bases the interest of this person in the apartment.44 40 michel vols, marvin kiehl, and julian sidoli del ceno, “human rights and protection against eviction in anti-social behaviour cases in the netherlands and germany,” european journal of comparative law and governance 2, no.2 (2015): 177. 41 german civil code, section 543 (2). 42 cornelius and rzeznik, op.cit., 92. 43 german civil code, section 573 (2) no. 2. 44 dmb deutscher mieterbund (2022). eigenbedarf; available online at: https://www.mieterbund.de/mietrecht/ueberblick/eigenbedarf.html https://www.mieterbund.de/mietrecht/ueberblick/eigenbedarf.html udayana journal of law and culture vol. 7 no. 1, january 2023 33 d. rent increase as a result of a modernization measure modernization measures are structural changes that affect the rented property. these changes are referred to as energy efficiency modernizations. they sustainably save non-renewable primary energy, protect the climate, or reduce water consumption. the utility value of the leased property is sustainably increased, the general living conditions are sustainably improved or new living space is created as a result.45 of course, these measures cost the landlord a lot of money. that is why it is permitted to increase the rent after these measures have been carried out. it is precisely specified by what percentage the rent may be increased so that the modernization pays for itself after a few years. moreover, in this particular case, the tenant is not allowed to reduce the rent because of the construction noise or similar things. the landlord must give the tenant a written modernization notice of the modernization measures at least three months before they are about to begin.46 the tenant must then tolerate these modernization measures.47 after receipt of the modernization notice, the tenant may give extraordinary notice of termination of the lease as of the end of the month after the next, if he or she does not want to tolerate the modernization measures, because this implies the right of extraordinary termination. 48 2.2.2. regulations to protect the tenant a tenant is a person who signs a lease contract. if more than one person signs the lease contract, more than one person is a tenant, i.e., they are both entitled to use the apartment. however, they are also jointly liable to the landlord for the payment of the rent. the tenant's primary obligation is to pay his or her rent and utilities if agreed regularly and on time. at the latest on, the third working day of a month, the tenant of a residential property must instruct his bank to make the transfer.49 a. rent reduction in case of material defects and legal defects if the leased property has a defect at the time of handover to the tenant that renders it unsuitable for use in accordance with the contract, or if such a defect arises during the term of the lease, the tenant shall be released from payment of the rent for the period during which the leased property is rendered unsuitable. for the period in which the suitability is reduced, the tenant must pay only a reasonably reduced rent as stipulated in section 536 bgb as a mandatory provision.50 if the tenant knows the 45 german civil code, section 555b. 46 ibid., section 555c. 47 ibid., section 555d. 48 german civil code, sections 555d and 555e. see also jan bonhage and thomas lang, “the real estate law review: germany,” the law reviews, 23 february 2022, 6. 49 judgment of the viii. zivilsenat from 5.10.2016 viii zr 222/15 50 cornelius and rzeznik, op.cit., 97. see also tjakie naudé, “the principle of reciprocity in continuous contracts like lease: what is and should be the role of the exceptio non adimpleti contractus (defence of the unfulfilled contract)?,” stellenbosch law distinguishing german residential and commercial tenancy law: are tenant and landlord in an equal position? christin eissing 34 defect of the rental object at the time of the conclusion of the contract, he or she is not entitled to these rights.51 b. protection against termination and opposition right of termination either contracting party may terminate the lease without notice for good cause. the termination of the lease agreement must always be in writing. the landlord must also inform the tenant of the possible time, form, and deadline of the objection, which the tenant always has.52 as mentioned above, the landlord can only terminate the lease contract for legitimate interest. the tenant can always terminate the lease with a notice period of three months if he or she wishes to do so.53 the special protection in the right of termination is that the tenant can always object respectively contradict to the termination and demand the continuation of the lease. in the case of termination without notice and regular termination, this is possible if the termination would mean hardship for the tenant, his or her family or another member of his or her household.54 such hardship exists, for example, if adequate replacement housing cannot be obtained on reasonable terms. in other words, if the tenant cannot find a new apartment of comparable size at a comparable price in the same area, a hardship claim exists. this means that the tenant can remain in the apartment, even though the landlord has, for example, written a notice of termination due to personal need, until a new appropriate apartment has been found. finding such a property is very difficult in the tight german housing market, especially in major cities. the statutory provisions relating to the tenant’s protection against termination are mandatory. the clause "the tenant waives his protection against termination" is therefore invalid, even if it was signed in the rental agreement.55 tenants are very well protected by law in germany. they are safe from sudden evictions and protected by the statutory notice period of at least three months. the longer a tenant lives in the apartment, the notice period becomes longer as well. the landlord must give six months’ notice if the tenant has lived in the apartment for five to eight years. if the tenant has lived there for longer, the notice period is nine months.56 review 27, no.2 (2016): 337; and lea crist, “comment on judgement no. xii zr 8/21 of the german federal court of justice on the obligation to pay rent in the event of a covid19 related shop closure,” 24 january 2022, https://dwfgroup.com/en/news-andinsights/insights/2022/1/german-federal-court-of-justice-on-the-obligation-to-pay-rent-inthe-event-of-a-corona-shop-closure 51 german civil code, section 536b. 52 ibid., section 568. 53 german civil code, section 573c (1). 54 bill davies et.al. “lessons from germany – tenant power in the rental market” report, institute for public policy research, london, 2017, 15. 55 andreas klaner. ratgeber mietrecht: mehr wissen recht bekommen (berlin, humbolds: verlag gmbh, 2006), 23. 56 marle, “you guide to german rental laws and tenant rights,” housing anywhere, 2022. https://housinganywhere.com/germany/tenant-rights-in-germany https://dwfgroup.com/en/news-and-insights/insights/2022/1/german-federal-court-of-justice-on-the-obligation-to-pay-rent-in-the-event-of-a-corona-shop-closure https://dwfgroup.com/en/news-and-insights/insights/2022/1/german-federal-court-of-justice-on-the-obligation-to-pay-rent-in-the-event-of-a-corona-shop-closure https://dwfgroup.com/en/news-and-insights/insights/2022/1/german-federal-court-of-justice-on-the-obligation-to-pay-rent-in-the-event-of-a-corona-shop-closure https://housinganywhere.com/germany/tenant-rights-in-germany udayana journal of law and culture vol. 7 no. 1, january 2023 35 they are safe from sudden evictions and protected by the statutory notice period of at least three months. the longer a tenant lives in the apartment, the longer the notice period. the landlord must give six months' notice if the tenant has lived in the apartment for five to eight years. c. the permissible amount of rent in germany, a rent index may not be exceeded by more than 10 percent to protect tenants in tight housing markets. if this is exceeded, the contract is invalid. a rent increase always requires the text form.57 in addition, the tenant must agree to a rent increase. otherwise, it cannot become legally effective.58 the landlord may sue for granting the consent if the tenant does not consent to the rent increase by the end of the second calendar month. the court, in this case, may decide based on the legality of the increase. if it decides in favor of the landlord, the ruling replaces the tenant's consent to the new rent amount.59 d. purchase subject to existing lease contract if the owner of the rented apartment changes because the residential property is sold, the new owner acquires the lease, and the tenant can continue to live in this apartment. the rent is paid to the new owner, who becomes the new landlord, as the purchase does not break the rent.60 e. right of pre-emption of the tenant if rented residential premises are sold to a third party, the tenant is entitled to preemption. in this context, the third party is anyone other than the tenant and the landlord. the tenant, therefore, can buy the apartment in which he or she lives before someone else does so.61 after the tenancy law reform, tenants are entitled to the pre-emption right in case of selling the residential premises to a third party. this right can be exercised as long as the ownership of the apartment has been established, or, is to be established after the tenant is allowed to use the residential space. 62 f. rent brake or rent control on june 1, 2015, mietrechtsänderungsgesetz (rent law amendment act) came into force in germany, authorizing the federal state to designate by statutory order "tight housing markets" in which a rent brake will apply for the next five years. the rent brake prohibits landlords from charging 57 the text form according to section 126b german civil code allows the user in distinction to the written form according to section 126 german civil code and the electronic form according to section 126a german civil code (qualified electronic signature) to communicate electronically by means of a readable, signatureless declaration. 58 german civil code, section 559b. 59 ibid., section 558b. 60 ibid., section 566. 61 ibid., section 577. 62 cornelius and rzeznik, op.cit., 84. distinguishing german residential and commercial tenancy law: are tenant and landlord in an equal position? christin eissing 36 more than 10 percent of the local average rent for new leases in an area designated as a tight housing market.63 tight housing markets are defined as "communities or parts of communities in which the adequate supply of affordable housing for the population is particularly at risk." however, a higher rent may be required if the previous rent exceeds the maximum allowable rent, the rooms were built after october 1, 2014, or the rooms were extensively modernized.64 2.2.3. the differences between the regulations in residential tenancy law and commercial tenancy law both residential tenancy law and commercial tenancy law are regulated in the bgb. on the one hand, there is regularly a disparity in the balance of power in residential tenancy law, as the landlord is in a stronger position than the tenant. in the commercial sector, on the other hand, landlords and business owners are usually on an equal footing. a. due date of the rent in residential tenancy law, the rent must always be paid by the third working day of the month. this regulation does not exist in commercial tenancy law. here, the bgb stipulates that the rent must be paid at the end of the rental period. in practice, however, this is often not applied and a monthly payment is nevertheless agreed to in the lease contract.65 b. amount of rent in the case of commercial real estate, rents are freely negotiable, but there are limits in the case of residential real estate. in principle, residential rents must be based on local custom or at least on comparable rents. if the landlord demands a significantly higher rent, this can lead to severe penalties as a "punishable rent overcharge" or even "rent usury".66 c. limitation of the lease one significant difference is, for example, the possibility of limiting the lease term. while this is only possible within the narrow limits of section 575 bgb in the case of a residential lease, a commercial lease can be limited in time without further notice.67 d. security deposit the agreement of a deposit is also highly regulated for the residential tenancy. for example, the amount of the deposit is limited to a maximum of three rents in section 551 bgb. a payment in installments is possible. in 63 bverfg paras. 1-4; german civil code, section 556d. 64 german civil code, section 556e, 556f. 65 ibid., section 579. 66 immonürnberg immobilienvertrieb (2020). residential vs. commercial lease: the 5 most important differences; available online at: https://www.immonuernberg.de/unterschied-wohnraum-versus-gewerbemietvertrag 67 german civil code, section 575. https://www.immonuernberg.de/unterschied-wohnraum-versus-gewerbemietvertrag udayana journal of law and culture vol. 7 no. 1, january 2023 37 the commercial tenancy, on the other hand, this can be largely freely arranged. e. passing on the operating costs another significant difference lies in the passing on of operating costs to the tenant. in a residential tenancy, only the costs listed in section 2 of the operating costs ordinance may be passed on to the tenant. in the context of a commercial tenancy, the operating costs can be extended considerably. however, these must be agreed upon at the conclusion of the contract in such a precise and transparent manner that the tenant has an exact picture of the costs incurred.68 f. transfer of maintenance and repair measures the transfer of maintenance and repair work on jointly used areas and facilities is excluded in residential leases. it is applicable in commercial leases as long as the arrangement is negotiated individually.69 g. local place of jurisdiction the local place of jurisdiction for a residential rental agreement is always tied to the location of the dwelling. in the case of a commercial lease, on the other hand, the place of jurisdiction can be determined by the contracting parties.70 h. right of termination and periods of notice there are also considerable differences in the right of termination. a commercial lease, for example, can be terminated in due time without stating reasons. in the case of a residential lease, ordinary termination is only possible for certain reasons. in addition, the notice periods for residential leases extend in favor of the tenant based on the duration of the lease. there is also a significant difference in the case of rent arrears. whereas in the case of termination without notice due to rent arrears in residential leases, the termination without notice is cancelled by the timely payment of the rent arrears. in commercial leases, the termination is effective even if the rent arrears are eliminated.71 2.3. reflection on german residential and commercial tenancy agreements generally, the purpose of the contract determines the type of contract. there are some significant differences between a commercial lease and a residential lease. while the initial part of the tenancy law contains general provisions, the last part contains specific provisions for residential tenancy law. tenancy law in germany can be viewed from at least three different 68 ibid., section 556. 69 ibid., section 580a. 70 code of civil procedure, section 29a. 71 german civil code, section 569. distinguishing german residential and commercial tenancy law: are tenant and landlord in an equal position? christin eissing 38 perspectives: legal, social, and economical components that cannot be separated from each other. in principle, tenants must be protected while it must remain attractive for landlords to offer housing. the task of the judiciary is to combine these components. it inferred that germany had made proper law and regulations related to the amount of rent, security deposits, protection against termination, land compensation for damages. nevertheles, changes in circumstances made tenancy law constantly evolving. during the corona virus pandemic, tenants who could no longer generate income to pay their rent needed special protection. currently, rising gas prices are a new problem. these imply the relevance of residential tenancy law that provides stringent rules to protect tenants. tenant and landlord should always stay up to date and informed about the latest changes in the law, so that they can take maximum advantage of them and point out any mistakes to the other party, and possibly prevent the lease or parts of the lease from becoming invalid. critically, the role of the landlord is always assumed to be that of a contractual party superior to the residential tenant. many private individuals also use the ownership of the non-owner-occupied real estate and the rental income generated from it for their retirement provision. however, a private individual repays the real estate loan with the rental income for many years and cannot use it for private purposes. in cases when rent nomads destroy the apartment, do not pay rent or compensation for damages, and do not move out of the apartment, a private landlord can quickly get into financial difficulties because the tenants are overprotected. 3. conclusion there are various ways to protect the individual parties to a lease. measures such as the protection against termination and the right of objection, the tenant's right of first refusal, the rent brake, or the rent cap protect the tenant in various ways against the arbitrariness of the landlord. in germany, the practice of both commercial and residential leases is legitimate. german tenancy law distinguishes between commercial tenancy agreements and residential tenancy agreements. it implies that the regulations for residential leases predominate over those for commercial leases. on the one hand, residential tenancy agreements generally aim at the tenant's social protection from the landlord's arbitrariness. this kind of agreement includes a disproportion in the balance of power since the landlord regularly occupies a stronger position than the tenant. on the other hand, commercial tenancy agreements assume a balance of power between the parties, as landlords and business owners are usually more equal. udayana journal of law and culture vol. 7 no. 1, january 2023 39 author’s statement of acknowledgment this article is the personal work of the author. the article's analysis and opinion reflect the author's ideas and shall not be associated with the affiliation where the author is studying at the faculty of management, social work, and construction, university of applied science and art, holzminden, germany. 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https://www.roedl.com/insights/renewable-energy/2021/may/landlord-to-tenant-electricity-pv-power-plants https://ouclf.law.ox.ac.uk/the-german-civil-code-and-the-development-of-private-law-in-germany/ https://ouclf.law.ox.ac.uk/the-german-civil-code-and-the-development-of-private-law-in-germany/ e-issn 2549-0680 vol. 7, no. 1, january 2023, pp. 80-101 doi: https://doi.org/10.24843/ujlc.2023.v07.i01.p05 this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licenses/by/4.0/) 80 addressing crisis in myanmar: the role of ngos in promoting international human rights standards ainna khairunnisa* faculty of law, syiah kuala university, banda aceh, indonesia m. ya’kub aiyub kadir** faculty of law, syiah kuala university, banda aceh, indonesia mahfud mahfud*** faculty of law, university of malaya, kuala lumpur, malaysia abstract the rohingya people have been victims of alleged severe human rights violations committed by the myanmar government. in response to this situation, the united nations (un) has adopted some measures, including a united nations general assembly resolution (ungar) a/res/74/246 of 2019 that, inter alia, determines non-governmental organizations (ngos) as one of the key players in implementing its mandate. in practice, the ngos' lack of international legal standing resulted in challenges in their operation. this paper examines the legal standing of ngos' operations under international law. specifically, it investigates ngos' contributions to implementing ungar 74/246 in dealing with human rights violations in myanmar. this article is based on legal research that combines library study and field research. the result indicated that article 71 of the un charter needs to clarify the legal standing of ngos’ operation in the international sphere, mainly to implement international human rights norms. in the context of the crisis in myanmar, the ngos have played a role as mandated by the ungar, including investigating gross human rights violations, providing gender-based protection and assistance, and assisting myanmar in providing humanitarian assistance to all internally displaced persons within rakhine. this paper recommends that all stakeholders cooperate to support the effectiveness of ngos' contributions and peace-building efforts in rakhine to achieve justice for all people in myanmar. keywords: human rights; myanmar; non-governmental organizations; rakhine; united nations general assembly. 1. introduction after decades of repression against the rohingya people since the passage of the 1982 burmese citizenship act, the international community has increasingly turned its attention to assisting. even though several diplomatic efforts have been made to put political pressure on the myanmar government, the case's resolution has yet to find a clear end. this matter thus became an international law issue when gambia, which was supported * email : ainna.k@yahoo.com ** email/corresponding author: m.yakub.akadir@unsyiah.ac.id ***email: lva170014@siswa.um.edu.my https://doi.org/10.24843/ujlc.2023.v07.i01.p05 http://creativecommons.org/licenses/by/4.0/ mailto:ainna.k@yahoo.com mailto:m.yakub.akadir@unsyiah.ac.id mailto:lva170014@siswa.um.edu.my addressing crisis in myanmar: the role of ngos in promoting international human rights standards ainna khairunnisa, m. ya’kub aiyub kadir, mahfud mahfud 81 by 57 members of the organisation of islamic cooperation (oic), filed an application before the international court of justice (icj).1 the case application was lodged under article ix of the genocide convention, which specifies that any state party of the convention may pursue the case before the icj.2 gambia claimed that the government of myanmar's wrongful treatment of the rohingya people has allegedly been raised to genocide levels as it has breached and continues to breach article 3 of the genocide convention regarding genocide committing, incitement, collusion, and genocide conspiracy in particular. gambia also alleged myanmar government failed to prevent and punish genocide under articles i, iv, v, and vi have been indicated.3 as the case remains ongoing and could take several years until its final decision, the gambia requested provisional measures to the court under article 41 of the icj statute to protect the rohingya people while the judicial process continues. in response to gambia's request, on january 23, 2020, the court eventually stated that it had prima facie as the prerequisite competence to justify the order on provisional measures. the court issued the decision on the request for interim measures indicating four of the six temporary measures requested by the gambia, ordering myanmar to a. duly comply with its obligations under the genocide convention; b. prevent the commission of genocidal acts by either its military or irregular armed units or organizations under its control, direction, or influence; c. prevent the destruction and ensure the preservation of evidence of wrongdoing under the genocide convention, notably invoking article 78 of its rules; and d. submit a report within four months on the measures undertaken to give effect to the order, and thereafter every six months until a final decision is rendered.4 1 see application of the convention on the prevention and punishment of the crime of genocide (gam. v. myan.), judgment on preliminary objections (july 22, 2022), https://www.icj-cij.org/public/files/case-related/178/178-20220722-jud-01-00-en.pdf; yordan gunawan, sonya whisler refisyanti, aliza mufida, kukuh derajat takarub, and aisah nur, “jurisdiction of international court of justice (icj) over the genocide violations: with special references to rohingya case,” fiat justisia: jurnal ilmu hukum 14, no. 4 (2020): 315-316; abdul ghafur hamid, “the rohingya genocide case (the gambia v myanmar): breach of obligations erga omnes partes and the issue of standing,” international islamic university malaysia law journal 29, no. 1 (2021): 31; michael a becker, “the plight of the rohingya: genocide allegations and provisional measures in the gambia v myanmar at the international court of justice,” melbourne journal of international law 21, no. 2 (2020): 429. 2 icj press release, “application of the convention on the prevention and punishment of the crime of genocide (the gambia v. myanmar),” https://www.icjcij.org/public/files/case-related/178/178-20200123-pre-01-00-en.pdf, 3. 3 see international court of justice, application instituting proceedings and request for provisional measures filed in the registry of the court on 11 november 2019. application of the convention on the prevention and punishment of the crime of genocide (the gambia v. myanmar), 56. 4 icj press release, op. cit., 5. https://www.icj-cij.org/public/files/case-related/178/178-20220722-jud-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/178/178-20200123-pre-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/178/178-20200123-pre-01-00-en.pdf udayana journal of law and culture vol. 7 no. 1, january 2023 82 in response to the decision concerning the provisional measures, the myanmar ministry of foreign affairs stated that no genocidal acts were conducted in the rakhine state; thus, the icj decision was not based on actual merits.5 state counsellor aung san suu kyi appeared at the hearings representing myanmar during the hearings on provisional measures. she rejected the accusations and stated that the myanmar government did not have genocidal intent, so the claim should not be subject to the genocide convention.6 to date, myanmar has been reported as not complying with the icj order on provisional measures, and it is unclear if myanmar will start to adhere to the order before the final decision of the icj is made.7 regarding this concern, asean’s involvement as the primary regional organization in southeast asia has been reaping criticism, particularly about its non-intervention principle, which causes the organization’s main weakness in resolving the rohingya crisis.8 until today, the only regional body in asean capable of dealing with the rohingya crisis is the asean intergovernmental commission on human rights (aichr). unfortunately, the aichr cannot settle the rohingya issue due to the non-intervention principle, in which asean member states avoid discussing controversial regional matters.9 asean also does not have the power to impose sanctions when member states breach international human rights duties.10 the asean member states organized only two special meetings during the rohingya crisis from 2012-2015. firstly, the multilateral meeting between thailand, malaysia, and indonesia was held in putra jaya in 2015. this meeting was held in response to international pressure to admit the stranded rohingyas at sea into their territories. the three countries decided to admit rohingya for one year period. the countries also called upon the international community to help bring the rohingya crisis to a decisive 5 anadolu agency, “myanmar submits 2nd report on rohingya genocide to the un's top court,” https://www.dailysabah.com/world/asia-pacific/myanmar-submits-2ndreport-on-rohingya-genocide-to-uns-top-court 6 bbc, “myanmar rohingya: government rejects icj ruling,” https://www.bbc.com/news/world-asia-51229796; renata christha auli and garry gumelar pratama, “the failure of united nations system under international law: its contribution to calamity and ruin of the rohingya case,” padjadjaran journal of international law 4, no. 2 (2020): 266. 7 three ngo staffs of muslim aid united kingdom (uk) and padi global asia (pga), “situation of human rights of rohingya muslims in myanmar from the perspective of human rights ngo staffs,” interview by ainna khairunnisa, banda aceh, january 27, 2021. 8 bilveer singh, “asean, myanmar and the rohingya issue,” himalayan and central asian studies 18, no. 1-2 (2014): 11. 9 aichr, terms of reference of the asean intergovernmental commission on human rights, para. 2.1 (b). 10 see lailin kovudhikulrungsri and saovanee kaewjullakarn, “what legal measures should asean apply to help the rohingya?,” south east asia journal of contemporary business, economics and law 6, no. 4 (2015): 9. https://www.dailysabah.com/world/asia-pacific/myanmar-submits-2nd-report-on-rohingya-genocide-to-uns-top-court https://www.dailysabah.com/world/asia-pacific/myanmar-submits-2nd-report-on-rohingya-genocide-to-uns-top-court https://www.bbc.com/news/world-asia-51229796 addressing crisis in myanmar: the role of ngos in promoting international human rights standards ainna khairunnisa, m. ya’kub aiyub kadir, mahfud mahfud 83 ending. this measure shows that asean seems interested in turning the rohingya crisis into an international responsibility.11 the role of the united nations (un) as an international organization is exceptionally significant and crucial to ensuring international peace and stability. over the years, several resolutions have been delivered by the un general assembly regarding human rights in myanmar. one of the most relevant exciting resolutions for this paper is the un general assembly resolution (ungar) a/res/74/246 on the situation of human rights in myanmar, officially published on december 27, 2019. a growing number of people believe that confrontations with the government cannot effectively resolve the situation in the country. however, instead of working together to affect policy while striving to encourage and strengthen the capacities of civil society alongside the conventional opposition headed by aung san suu kyi and her national league for democracy (nld). the new emergent civil society is a community of people determined to reform the structure, impacting the system from within rather than a cohesive movement. consequently, the progressive ability of nongovernmental organizations (ngos) to influence policymakers, gather information about onsite human rights abuses, and represent public opinion shall also be taken into account to support ungar's efficiency in ensuring compliance with icj decisions. furthermore, it is now becoming common knowledge that state compliance with international obligations also involves ngos promoting and reviewing. 12 according to oscar schachter, the advancement of ngos' engagement to monitor humanitarian, human rights, and environmental law has been detected since 1960.13 support for collective enforcement efforts is one of the vital ngo functions. ngos may also play a significant part in the local government framework to encourage the government to fulfill its obligations under a un resolution.14 for instance, in the resolution of 2003 on sierra leone, the security council called on “states, international organizations and non-governmental organizations to continue to support the national recovery strategy of the government of sierra leone. 15 for instance, in the resolution of 2003 on sierra leone, the security council called on “states, international organizations and non-governmental 11 irawan jati, “comparative study of the roles of asean and the organization of islamic cooperation in responding to the rohingya crisis,” ikat: the indonesian journal of southeast asian studies 1, no. 1 (2017): 22. 12 steve charnovitz, “non-governmental organizations and international law,” the american journal of international law 100, no. 2 (2006): 354. 13 casey jedele, “domestic restrictions on non-governmental organizations and potential protections through legal personality: time for a change?,” chicago journal of international law 21, no. 1 (2020): 135. 14 application of the convention on the prevention and punishment of the crime of genocide (gam. v. myan.), judgment on preliminary objections (july 22, 2022), https://www.icj-cij.org/public/files/case-related/178/178-20220722-jud-01-00-en.pdf 15 united nations security council resolution no. s/res/1470 (2003), 28 march 2003, para. 8. https://www.icj-cij.org/public/files/case-related/178/178-20220722-jud-01-00-en.pdf udayana journal of law and culture vol. 7 no. 1, january 2023 84 organizations to continue to support the national recovery strategy of the government of sierra leone.16 however, the legal status of the ngos has yet to be established, although ngos' participation in international law and global affairs has significantly increased.17 despite the nonexistence of international ngos' legal status, article 71 of the un charter has acted as the basis of ngos' operation. following the charter, ngos are granted consultative status merely for the united nations economic and social council (un ecosoc). the legal standing of ngos is not a new notion. since 1910, the consideration to promote the adoption of a convention granting international ngos legal personality has been brought by the international law association and the institute de droit international.18 unfortunately, until this day, the goal has yet to be achieved. the paper initially discussed the absence of legal standing of ngos to formally participate in the making process of ungar, considering their substantial role in implementing the resolution in myanmar. finally, this paper investigates to what extent the ngos have contributed to ungar's implementation of the situation of human rights in myanmar. it is a legal research that obtained data through both library and field research. the normative-empirical legal analysis is conducted with written provisions imposed on in-concreto legal events. this research combined two stages of study: (1) the submission regarding the applicable normative law; and (2) the application of events in concreto to achieve predetermined goals. this application can be realized through concrete actions and legal documents. the use of these two stages required secondary data and primary data. the researchers studied the formulation of the problem with applicable legal norms and rules, explained the data in detail, then provided legal solutions to the research. the researchers also obtain secondary data through interviews to deeply examine the research problem formulation. 2. result and analysis 2.1. the eligibility of article 71 of the un charter to provide legal standing for ngos operation achieving consultative status is the first move to allow ngos to launch a sequence of informal operations and behaviours that enable them to strengthen their position within the un framework and gradually establish a dialogue with important bodies. the consultative status allows ngos to participate and facilitate various events, including being part of special working groups and presenting written and oral statements to ecosoc seminars and hearings. the ngos have used this opportunity to develop 16 united nations security council resolution no. s/res/780 (1992), 6 october 1992, para. 1. 17 kerstin martens, “examining the non-status of ngos in international law,” indiana journal of global legal studies 10, no. 2 (2003): 5. 18 steve charnovitz, loc.cit. addressing crisis in myanmar: the role of ngos in promoting international human rights standards ainna khairunnisa, m. ya’kub aiyub kadir, mahfud mahfud 85 utilizing an informal mechanism known as "learning to learn." the ngos are learning to improve their persuasion skill to convince policymakers to change and adjust their projects. although the approach seems very slow, it will yield long-term sustainable outcomes.19 however, while article 71 of the un charter gives the ngos a way to work within the un framework, the article also explicitly states that only under specific conditions are national ngos considered.20 per article 71, the un ecosoc resolution 1996/31, which has governed the consultative relationship since 1996, sets forth some general requirements for ngos.21 to be recognized under the un, an ngo should meet six conditions. first, it must act to promote the un objectives. second, the shareholders, the headquarters, and the officers must be given equal representation. third, the company should be non-profit. fourth, it must refrain from any kind of violence. fifth, it must refrain from interfering with states' internal relations. lastly, it will not be formed through an intergovernmental treaty. but in fact, the un introduced the term “ngo” solely to bring various international actors into one post, without defining it clearly. for instance, ngos must represent large sections of the population, be representative within the particular field of their competence, or have a recognized standing.22 these criteria are the universal model international organizations use to govern their network with civil society organizations concerning peace and security areas. after decades of the un charter signing, the scope of article 71 has been significantly expanded by the ecosoc by adopting authoritative interpretations of the provision and modifying and reviewing its rules of procedure. the consultative status of ngo under article 71 of the un charter23 has served two purposes: (1) enabling ecosoc and its subsidiary bodies to receive expert advice and information; and (2) providing a forum for the international ngos' participation to speak up about important issues on behalf of a wide range of countries.24 until today, article 71 has acted as a blueprint and springboard for other international organizations to create a direct relationship with ngos. for instance, the african human and peoples' law court allows ngos under "observer" status to directly bring cases before the court before the african union. in addition, in 1999, the 19 daniela irrera, “ngo's roles in humanitarian interventions and peace support operation,” multilateral security and esdp operation 19, no. 1 (2010): 71. 20 george e. edwards, “the united nations and human rights non-governmental organizations (ngos) seventy-five years of consultations, collaboration, and contributions (1945-2000),” pace international law review 33, no. 2 (2021): 330-332; martine beijerman, “practice what you preach? limitations to imposing democratic norms on ngos,” international community law review 20 (2018): 5-9; melissa j. durkee, “international lobbying law,” yale law journal 127, (2018): 1754. 21 united nations, economic and social council, resolution no. e/res/1996/31 on consultative relationship between the united nations and non-governmental organizations, para. 9-13. 22 kerstin martens, loc.cit. 23 shirley gatenio gabel and ningning yang, “transnational advocacy at the united nations for social workers,” journal of human rights and social work 7, (2022): 419. 24 casey jedele, op.cit., 125. udayana journal of law and culture vol. 7 no. 1, january 2023 86 organization of american states (oas) adopted the guideline for the participation of civil society in oas activities of civil society organizations. the guideline establishes a framework for ngos' participation in the oas, similar to the un's ecosoc. finally, the organization for security and cooperation in europe (osce) also adopted article 71 of the un charter and the consultative status scheme to model their relationship to ngos.25 despite the expanded scope, consultative status by article 71 of the un charter is still fundamentally limited by the fact that the governments taken by ecosoc's committee on ngos who decide on the applications, which include admission, classification, suspension, or withdrawal of the international ngos are strongly influenced by political purposes.26 ngos' lack of international legal standing causes various problems about their representativity and legitimacy. questions regarding the stance of the ngos, their accountability, and how they are accountable have been arisen along with their increasing participation in the implementation of international human rights norms.27 in other words, even with a century of movement towards its legitimacy, which has resulted in specific regulations guaranteeing their rights and responsibilities, it is undeniable that their unclear position in the international field has caused significant issues. as a way out of this issue, in 2002, the panel appointed by the un secretary-general at the forum "strengthening of the united nations: an agenda for further change" had set out some specific recommendations to strengthen the current legal status and accreditation procedures, under three different guidelines. first, ngos' participation in un organs should be expanded by establishing consultative status in the general assembly and formalizing current consultation practices with the security council. second, to depoliticize and streamline the accreditation procedure, a standard accreditation framework for all un forums and recognition of a more significant role of un administration in the accreditation process shall be established. third, promoting self-organization and self-regulation by supporting ngos to develop self-policing mechanisms and draft codes of conduct and recognizing broader participatory rights to umbrella organizations and civil society network. 28 unfortunately, the recommendations have not yet been established until today. 25 c. alihusain, “the influence of ngos on international law,” https://perma.cc/jz7u-9ebp 26 rephael ben-ari, “the international legal status of international nongovernmental organizations: the century-long normative debate and its future prospects,” cardozo journal of international and comparative law 23, no. 1 (2014): 12. 27 kerstin martens, op. cit., 17. 28 united nations general assembly, report of the secretary general, no. a/57/387, 9 september 2002, para 134-137. https://perma.cc/jz7u-9ebp addressing crisis in myanmar: the role of ngos in promoting international human rights standards ainna khairunnisa, m. ya’kub aiyub kadir, mahfud mahfud 87 2.2. ngos international legal standing based on other juridical approaches the consideration of providing an international legal standing for ngo operations has been discussed for over a century. 29 prior to the un’s recognition of ngos, several proposals have been raised since the early 1920s to clarify the legal status of international non-governmental associations. 30 the issue was brought up in 1910 by institute de droit international at its session in paris. it presented a draft convention on ngos and proposed a study on “the juridical conditions of international associations.” in 1912, a first draft treaty on the international legal personality of ngos was developed.31 another convention on the legal status of international associations was drafted by the institute in 1923. however, again, the government did not accept this initiative, and the treaty never entered into force. several ngo treaties have also failed due to states' lack of consent.32 in order to voluntarily regulate themselves, ngos have begun developing their own guidelines in recent years, resulting in the international non-governmental association accountability charter and the red cross code of conduct that sets standards for several of the largest ngos worldwide: oxfam, care, plan, save the children, and world vision.33 however, despite their international character, their operation is generally governed by the state's national law, where the headquarters of the activities are located.34 in in addition to national law, international law provides ngos with certain protection of legal rights. the ngo's rights under international law per se are not constituted in a single document but are generally derived from different treaties, norms, and practices. some examples of ngos' legal rights protected under international law are the right to protection, freedom of association, and participation. the right to protection is specifically regulated under the 1998 un general assembly declaration on rights and responsibilities of individuals, groups, and organs of the society to promote and protect universally recognized human rights and fundamental freedoms. in general, the ngo's rights of protection can be found in several human rights treaties: convention on the elimination of racial discrimination (cerd), convention on economic, social and cultural rights (cescr), international covenant on civil and political rights (iccpr), convention against torture (cat), etc. 29 casey jedele, op. cit., 130. 30 idowu mopelola ajibade, “a synopsis: rights, responsibilities and roles of human rights ngos under international law,” responsibilities and roles of human rights ngos under international law (2008): 3. 31 kerstin marten, op. cit., 17. 32 frits hondius, “recognition and protection of ngos in international law,” https://www.icnl.org/research/library/transnational_recognitionandprotectionofngos 33 noam schimmel, “the international human rights law responsibilities of ngos,” https://ohrh.law.ox.ac.uk/the-international-human-rights-law-responsibilities-of-ngos 34 jan wouters and rossi inggrid, “human rights ngos: role, structure and legal status,” ku leuven, institute for international law working paper, no. 14 (2001): 7. https://www.icnl.org/research/library/transnational_recognitionandprotectionofngos https://ohrh.law.ox.ac.uk/the-international-human-rights-law-responsibilities-of-ngos udayana journal of law and culture vol. 7 no. 1, january 2023 88 in addition, ngo’s freedom of association is guaranteed by international human rights instruments (e.g., universal declaration of human rights35 and iccpr36) as well as regional human rights instruments (e.g., african charter on human and peoples’ rights, 37 article 11 of the european convention on human rights and fundamental freedoms,38 and article 16 of the american convention on human rights.39 the council of europe (coe) also recognizes the right to participation under the committee of minister resolution 2003 on participatory status for international ngos. at the regional level, progress has yet to be made in codifying the personality of ngos. one of the most noteworthy conventions is the european convention on the recognition of the legal personality of international non-governmental organizations. the convention was adopted in 1986 and entered into force in 1991, ensuring the general recognition of ngos legal personality in every state party to the convention.40 even so, it is still not a convention that ensures the ngo's international legal personality. the critical distinction is that every international ngo may conduct its activities without the need for new recognition from the state parties.41 2.3. ngos lack of international legal standing legal personality is critical in determining rights, immunities, and the ngo's standing before the courts. 42 hence, ngos' lack of international legal standing causes various problems regarding their representativity and legitimacy. questions regarding the stance of the ngos, their accountability, and in what ways they are accountable have arisen, along with their increasing participation in implementing international human rights norms. 43 in other words, even with a century of movement towards its legitimacy, which has resulted in specific regulations guaranteeing their rights and responsibilities, it is undeniable that their unclear position in the international field has caused significant issues. the most concerning issue is the practice of misusing designation, which seriously undermined the recognition of ngos as respected global actors. this problem occurred on the un system opening for national ngos in 1996, which finally led to the limitation of ngo participation at the un. the system allowed governments of human rights-violating states to take advantage and promote ngos from their country to be granted consultative status. consequently, increasingly questionable ngos, so-called government-organized ngos (gongos), from human rights violating states 35 universal declaration of human rights, art. 20. 36 international covenant on civil and political rights, art. 22. 37 african charter on human and peoples’ rights, art. 10. 38 european convention on human rights and fundamental freedom, art. 11. 39 american convention on human rights, art. 16. 40 the 1986 european convention on the recognition of the legal personality of international non-governmental organisation. art. 2. 41 noam schimmel, loc. cit. 42 steve charnovitz, op.cit., 355. 43 kerstin martens, op. cit., 18. addressing crisis in myanmar: the role of ngos in promoting international human rights standards ainna khairunnisa, m. ya’kub aiyub kadir, mahfud mahfud 89 are gaining status and therefore being able to lobby on behalf of their governments at the un.44 furthermore, the differences in the national law which govern the ngos could be more problematic, mainly when ngos operate across their national borders. national laws vary by country; thus, the status of ngos also varies. rights, duties, and recognition depend on each country's national legislation. the national juridical systems generally differ in the official recognition criteria and social association tax regulations. difficulty also arises because globally operating ngos with branches in many countries will come within the scope of various national law systems. at the same time, ngos must respect domestic authority when participating at the international level because some igos, like the un, demand the legal status of ngos as the requirement to be granted consultative status.45 another challenge for the ngos to operate in different countries, since they are not globally recognized, is that some countries see the participation of certain nationals or ethnic groups with great skepticism. there is a concern that the field-level program of such ngos in the country could be interpreted as an intervention in domestic affairs or as coverage of politically subversive activity. 46 the suspicion might have worsened depending on the issue advocated by the ngos. with such suspicion, human rights are undoubtedly one of the most challenging issues to implement in a field-level program. 47 2.4. ngos’ contribution to the implementation of the united nations general assembly resolution on the situation of human rights in myanmar despite the setback caused by the lack of international legal standing, ngos still implement ungar on the situation of human rights in myanmar. the noteworthy contribution of ngos as one of the backbones of the international human rights norms implementation at the grassroots level has been recognized with appreciation by the un bodies, including the general assembly. thus, the general assembly encourages the ngos, which are addressed as the un's international partners, to keep working hand in hand with the un agencies to address the root causes of the conflict. three critical elements of ngos' contribution are mentioned in the operative clauses of resolution 74/246. first, conduct investigations into the gross human rights violations in myanmar. second, provide genderbased protection and assistance to the affected population. third, assist 44 james a. paul, “ngo access at the un,” https://archive.globalpolicy.org/component/content/article/177-un/31722-ngo-access-atthe-un.html 45 kerstin martens, loc. cit. 46 a.j. judge, “ngos and civil society: some realities and distortions,” transnational associations-associations transnationales, no. 3 (1995): 156. 47 eduard jordaan, “worthy of membership? rwanda and south africa on the united nations human rights council,” african human rights law journal 21, no. 2 (2021): 907. https://archive.globalpolicy.org/component/content/article/177-un/31722-ngo-access-at-the-un.html https://archive.globalpolicy.org/component/content/article/177-un/31722-ngo-access-at-the-un.html udayana journal of law and culture vol. 7 no. 1, january 2023 90 bangladesh and myanmar in delivering humanitarian aid to internally displaced persons (idp). 48 in keeping with the scope of this study, the discussion focuses solely on the assistance provided by ngos in myanmar to idps in rakhine state. according to the interviewees, their organizations delivered service effectively, and their programs were positively impacted. 49 2.4.1. investigation of the gross human rights violations in terms of investigating gross human rights violations, their field access from the conflict breakout offers an advantage of independent investigation through field guidance and access to such material. 50 in addition, it will strengthen the evidence provided in the ongoing prosecution of myanmar before the icj by the gambia over the genocide case. the value of the evidence can be supported by human rights ngos, which are widely regarded, mainly when multiple organizations have collected the material.51 however, they could not blatantly take measures to any investigated or collected documentation and evidence related to the gross human rights violation. such action would be risky for their operation in the area since they are tied up to the memorandum of understanding (mou), which prohibits them from interfering with any internal affairs of myanmar, including the human rights sector. despite the inability to conduct the investigation directly, the ngos can still act indirectly to contribute to analyzing gross human rights violations in two ways, first, by reporting to their headquarters. for instance, a staff of muslim aid uk may report any human rights violation to his/her headquarter in london. the headquarter then will collect the information and advocate it to more influential bodies, like the un. 52 second, by sharing the information or data with the ngos coordination forum in rakhine. the discussion usually continues to the setup of a joint strategy or plan regarding the issue. the ngos' contribution to the investigation process has been coming out in a report, joint statement, press release, and article, as follows. 48 united nations, general assembly, resolution no. a/res/74/246 on situation of human rights of rohingya muslims and other minorities in myanmar, operative p. 3, 15, 17. 49 one ngo staff of muslim aid united kingdom (uk) and two ngo staffs of padi global asia (pga). “situation of human rights of rohingya muslims in myanmar from the perspective of human rights ngo staffs,” (their names are not revealed for confidentiality reasons) interview by ainna khairunnisa, banda aceh, january 27, 2021. 50 united nations, human rights council, resolution no. a/hrc/res/39/2 on situation of human rights of rohingyan muslims and other minorities in myanmar. 2018, operative p. 6, and human rights council, fifty-first session, a/hrc/51/4, on report of the independent investigative mechanism for myanmar, 12 september–7 october 2022 agenda item 4, distr.: general 12 july 2022. 51 richard price, “transnational civil society and advocacy in world politics,” world politics 55, no. 4 (2003): 579. 52 one ngo staff of muslim aid and two ngo staffs of padi global asia, loc.cit. addressing crisis in myanmar: the role of ngos in promoting international human rights standards ainna khairunnisa, m. ya’kub aiyub kadir, mahfud mahfud 91 table 1 several investigation outcomes by ngos 2018-202153 ngos topic/title of document type of document human rights watch myanmar's mass detention of rohingya in rakhine state report rakhine demolition map analysis amnesty international military responsibility for crimes against humanity in rakhine state report myanmar: open letter to asean and its member states: stop the ongoing human rights violations in myanmar open letter myanmar: in reverse: deteriorating human rights situation submission for the un universal periodic review, 37th session, 2021 collective ngos statement of ingos in myanmar on the situation in rakhine 2019 statement asian forum for human rights development global society statement on myanmar statement information provided in table 1 reveals that four ngos i.e. human rights watch (hrc), amnesty international (ai), collective ngos, and asian forum for human rights development (afhrd) chose various documents to address myanmar's issues. collective ngo and afhrd only released statements, while hrw and ai composed reports. besides the report, hrw also delivered an analysis titled rakhine demolition map. it can be compared that ai became the most contributive ngo as it spread an open letter and made a submission for the un universal periodic review, 37th session, 2021. 2.4.2. provision of protection and assistance to the affected population concerning the provision of protection and assistance to the affected population, as stated in the ninth operative paragraph of ungar 74/246, the condition of protection and assistance is targeted especially to women 53 information compiled by authors from various sources, among others, human rights council resolution a/hrc/51/4. udayana journal of law and culture vol. 7 no. 1, january 2023 92 and girls.54 in addition, the security and service mainly aim to support the victims of sexual and gender-based violence and human trafficking. according to one of the interviewees, their presence, directly and indirectly, protects the affected population. first, their presence has deterred potential abuse because they may witness such violations and expose the perpetrators to prosecution, internal sanctions, and political or moral judgments. second, it would limit the possibilities of abusive conduct by reducing the abusers' political space. for instance, the potential abusers or perpetrators could be concerned about the reaction of their superiors, loss of international cooperation advantages, or harm to their political reputation. third, it would reassure the affected populations since the representatives of the international community can directly witness and report their situation.55 the direct impacts can be seen from their contribution to assisting in the field. the compiled data from the interview with three ngos staffs 56 assigned in rakhine and an assessment of gender profile for humanitarian action provided by (i)ngos and csos in coordination with the un women and support from the united nations population fund (unfpa) and un office for the coordination of humanitarian affairs (ocha) showed effective ngos contribution in the sector of protection, education, health, food security, nutrition, water, sanitation and hygiene (wash), camp coordination and camp management, shelter and non-food items, and livelihood, as follow.57 54 united nations general assembly resolution a/res/74/246 on situation of human rights of rohingya muslims and other minorities in myanmar, operative p. 9. 55 liam mahony. proactive presence field strategies for civilian protection (geneva: henry dunant centre for humanitarian dialogue, 2006), 21. 56 one ngo staff of muslim aid and two ngo staffs of padi global asia, loc.cit. 57 reliefweb, “gender profile for humanitarian action: rakhine, kachin and northern shan, myanmar,” https://reliefweb.int/report/myanmar/gender-profile-humanitarianaction-rakhine-kachin-and-northern-shan-myanmar-volume-2 https://reliefweb.int/report/myanmar/gender-profile-humanitarian-action-rakhine-kachin-and-northern-shan-myanmar-volume-2 https://reliefweb.int/report/myanmar/gender-profile-humanitarian-action-rakhine-kachin-and-northern-shan-myanmar-volume-2 addressing crisis in myanmar: the role of ngos in promoting international human rights standards ainna khairunnisa, m. ya’kub aiyub kadir, mahfud mahfud 93 table 2 gender-based protection and assistance in rakhine from 2019-202158 58 information compiled by authors from various sources, among others human rights council resolution a/hrc/51/4. sector issues key contributions protection high reported prevalence of gender-based violence (gbv) ngos provided services to women and girls centers in camps and villages across central rakhine regularly. camp coordination & management (cccm) low rate of women representation in the committee of cccm. ngos provided gbv training to the committee of cccm. education limitation of girls' education. ensure inclusive, childcentered, and genderresponsive teaching practices in idp camps. health barriers to access to healthcare for women and girls due to safety and sociocultural factors. ngos recruited, trained, and deployed 74 health volunteers, 50% female, to support sexual and reproductive health and rights. food security exposure to sexual abuse and exploitation risks, including a child and forced marriage, due to lack of livelihood opportunities. ngos conducted consultation and timely communication for practical assistance. nutrition women and girls have a higher risk of malnutrition due to intra-household food distribution gender inequalities. ngos provided nutrition support to adolescent girls, pregnant and lactating women as one of the main targets. wash there are no private toilets or shower facilities within the shelters. ngos applied a familyshared system with four families sharing one facility. shelter & nonfood items lack of sense of safety and privacy due to small size and overcrowding shelter, particularly for the emergency ones. in 2018, developed and implemented new shelters' resilience preventing gender and protection risks as well as harsh weather conditions. livelihood freedom of movement restrictions has limited women and girls' access to cfw activities and access to the market. ngos conducted studies and assessments of cash feasibility considering gender and protection risks. udayana journal of law and culture vol. 7 no. 1, january 2023 94 information provided in table 2 reveals the concrete contributions of ngos, which encompassed nine critical sectors, most of which are related to healthcare. such contributions underscored the capability of ngos to protect and empower the rohingya women and girls, particularly by encouraging women’s involvement in the camps while still ensuring their safety. 2.4.3. assistance to myanmar in providing humanitarian needs to the internally displaced person of all communities within rakhine since the beginning of 2020, the total demand for humanitarian assistance has significantly increased due to armed conflict escalation in rakhine, with brutal combat regularly occurring within and around the inhabited areas. from 2012 until today, about 130,000 individuals, the vast majority of whom are rohingya, have been displaced in rakhine's center region.59 in 2017-2018, over half the non-muslim population from the affected townships have also been displaced. destruction and violence have impacted ordinary villagers on all sides. the violence has been disastrous for muslims, buddhists, and others 60 due to the significant population in certain townships and the fact that they are the main targets of military operations, muslims are disproportionately affected in both numbers and severity.61 according to the interviewees, the majority of the displaced people live in camps or camp-like settings. under those circumstances, a large number of the rohingya people continue to suffer significant difficulty in obtaining education, healthcare, and livelihoods because of the freedom of movements limitation, inter-communal dispute, and other factors. the situation has resulted in increased dependence on humanitarian aid. below is the compilation of ngos' contributions, in collaboration with the un and other csos, to providing humanitarian needs to the idp within rakhine from 2019-2021. the data is obtained from un ocha's interview and humanitarian update in collaboration with the inter-cluster coordination group and unhcr.62 59 minority rights group international, “world directory of minorities and indigenous peoples–myanmar/burma: muslims and rohingya,” https://www.refworld.org/docid/49749cdcc.html. 60 anthony ware and costas laoutides. myanmar's' rohingya's conflict (oxford: oxford university press, 2018), 6. 61 ibid. 62 un ocha, “myanmar humanitarian update no. 7,” https://reliefweb.int/report/myanmar/myanmar-humanitarian-update-no-7-27-may-2021 https://www.refworld.org/docid/49749cdcc.html https://reliefweb.int/report/myanmar/myanmar-humanitarian-update-no-7-27-may-2021 addressing crisis in myanmar: the role of ngos in promoting international human rights standards ainna khairunnisa, m. ya’kub aiyub kadir, mahfud mahfud 95 table 3 humanitarian needs to the idp in rakhine from 2019-2021 as seen in tables 1, 2, and 3, despite the gap in international law to protect their operation amidst the escalating crisis in rakhine, ngos continue to participate in three significant focuses as mandated by the ungar 74/246. first, they play a vital role in investigating the gross human rights violations in rakhine, myanmar. the presence of ngos in the field enables them to collect data, documentation, and other evidence of gross human rights violations, which come from joint report statements, press releases, etc. it becomes a breakthrough of the lack of function of the sector issues key contributions protection one hundred thirty thousand internally displaced people in rakhine are restricted from their basic human rights. ngos collect, verify and analyze information on violations against the idps to be utilized as evidence in the advocacy effort to call for international human rights law compliance. education restrictions on idp children's movement and security severely limit their access to education beyond primary school at tlcs. ngos consulted with the community regarding necessary assistance for the learning process at the tlc idp camps. wash increasing need for a facility for temporary water and sanitation. ngos distributed drinking water to affected idp camps. health the muslim population is restricted from accessing the nearest healthcare centers due to escalating conflict since 2020. ngos continue to deliver service by a mobile clinic with partially suspended and partially resuming activities. shelter/nonfood items/camp coordination and camp management the increasing population growth in the last eight years has caused shelters to over-loaded. conducted rapid assessment of necessities for protracted idp camps shelters. targeted to distribute 700 longhouses to provide weatherproofing for at least 28,000 individuals. nutrition the insufficient supplies, facilities, and competent staff cause the low quality of nutrition services. ngos conducted nutrition screening for approximately 11,570 children and 3,200 pregnant and lactating women. food security the idps are still facing economic and physical access to food and livelihood impediments. ngos implemented cfw activities among the population and engaged approximately 660 people in rakhine. udayana journal of law and culture vol. 7 no. 1, january 2023 96 un fact-finding mission and the unwillingness of the government to conduct any investigation process. these findings would strengthen the evidence provided for the ongoing prosecution of the gambia v. myanmar before the icj. second, they continue to provide gender-based protection and assistance in rakhine, especially for women and girls. third, they assist myanmar in providing humanitarian needs to the idp of all communities within rakhine. although ngos are one of the key players in promoting justice, prosperity, and equality amidst the crisis, they nevertheless continue to face challenges in ensuring humanitarian access in a timely and effective manner. the interviewees all agreed that several barriers have resulted in significant adverse effects and slowed the delivery of needed aid to the affected population in the rakhine state. these situations hence decrease the effectiveness of ngos' contribution. 63 in myanmar, several legal instruments have been utilized to limit the freedom of speech and expression, strictly monitor projects related to the peace process implemented by human rights actors, and even suspend ngos' activities against the government of myanmar. some of the most used ones are the unlawful association act of 1908, the telecommunication law of 2013, the protecting the privacy and security of citizen law of 2017, and the penal code section 505(a) and 505(b). the interviewees also stated that ngos face several ethical problems in their operations in myanmar. the most dilemmatic one is whether they can operate without giving indirect support to the repressive regime. finally, one of the interviewees described that the rohingya people face "vertical" problems, which are the oppression and unrecognition of citizenship by the government, and "horizontal" issues, which are the communal conflict that has been going on between them and the myanmar people. 64 the socially and politically motivated people, especially the arakanese, have deemed the rohingya as state enemies who deserve to be deported from the country. this situation has affected ngos' operations in rakhine for the last 20 years. the role of the academician is also essential to ensure the promotion of the human rights of civilians and other stakeholders.65 63 one ngo staff of muslim aid and two ngo staffs of padi global asia, loc.cit. 64 ibid. 65 stephen a. rosenbaum, david tushaus, britane hubbard, and kaylee sharpbauer, “the myanmar shwe: empowering law students, teachers, and the community through clinical education and the rule of law,” indiana journal of global legal studies 28, no. 1 (2021): 153-230. see also brianne mcgonigle leyh, ‘the role of universities and law schools in documenting serious international crimes and advancing the rule of law,” utrecht law review 17, no. 2 (2021): 87–101. addressing crisis in myanmar: the role of ngos in promoting international human rights standards ainna khairunnisa, m. ya’kub aiyub kadir, mahfud mahfud 97 3. conclusion the un charter and un organs resolutions have enabled ngos to play a formalized role in the un system under a consultative status. the lack of ngos' international legal personality and the domestic law jurisdictions applicable to ngos' operations in a particular state often hamper them from achieving their missions in promoting international human rights norms and standards. this matter can be reflected in the situation in myanmar, where the ngos faced challenges in implementing mandates stipulated in the united nations general assembly resolution a/res/74/246 of 2019. in practice, the ngos could have been more optimal in investigating an allegation of gross human rights violations, providing gender-based protection and assistance, and supporting the government of myanmar in providing humanitarian assistance to all internally displaced persons within rakhine. for the future, the collaboration of ngos with all stakeholders, i.e., the government of myanmar, the un, international partners of the un, and the international community, remains essential to the peace-building process in rakhine. bibliography book ware, anthony and costas laoutides. myanmar's' rohingya's conflict. oxford: 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"the plight of the rohingya: genocide allegations and provisional measures in the gambia v myanmar at the international court of justice." melbourne journal of international law 21, no. 2 (2020): 428-449. https://search.informit.org/doi/10.3316/agispt.20211011054859 beijerman, martine. "practice what you preach? limitations to imposing democratic norms on ngos." international community law review 20, no. 1 (2018): 3-29. https://doi.org/10.1163/18719732-12341364 https://dx.doi.org/10.2139/ssrn.1300103 https://doi.org/10.23920/pjil.v4i2.415 https://search.informit.org/doi/10.3316/agispt.20211011054859 https://doi.org/10.1163/18719732-12341364 udayana journal of law and culture vol. 7 no. 1, january 2023 98 ben-ari, rephael. “the international legal status of international nongovernmental organizations: the century-long normative debate and its future prospects.” cardozo journal of international and comparative law 23, no. 1 (2014): 5-31. bilveer, singh. “asean, myanmar and the rohingya issue.” himalayan and central asian studies 18, no. 1-2 (2014): 5-20. buchanan, ruth. “looking into law and development: pedagogies and politics of the frame.” osgoode hall law journal 59 (1): i-xiii. charnovitz, steve. “non-governmental organizations and international law.” the american journal of international law 100, no. 2 (2006): 348-372. durkee, melissa j. “international lobbying law.” yale law journal 127, (2018): 1742-1826. edwards, george e. “the united nations and human rights nongovernmental organizations (ngos) seventy-five years of consultations, collaboration, and contributions (1945-2000).” pace international law review 33, no. 2 (2021): 327-340. gabel, shirley gatenio and ningning yang. “transnational advocacy at the united nations for social workers.” journal of human rights and social work 7 (2022): 417–427. https://doi.org/10.1007/s41134-02200216-1 gunawan, yordan, sonya whisler refisyanti, aliza mufida, kukuh derajat takarub, and aisah nur. “jurisdiction of international court of justice (icj) over the genocide violations: with special references to rohingya case.” fiat justisia: jurnal ilmu hukum 14, no. 4 (2020): 313-336. https://doi.org/10.25041/fiatjustisia.v14no4.1900 hamid, abdul ghafur. “the rohingya genocide case (the gambia v myanmar): breach of obligations erga omnes partes and the issue of standing.” international islamic university malaysia law journal 29, no. 1 (2021): 29-54. https://doi.org/10.31436/iiumlj.v29i1.630 irrera, daniela. "ngo's roles in humanitarian interventions and peace support operations." perspectives 19, no. 1 (2010): 85-106. jati, irawan. “comparative study of the roles of asean and the organization of islamic cooperation in responding to the rohingya crisis.” ikat: the indonesian journal of southeast asian studies 1, no. 1 (2017): 17-32. https://doi.org/10.22146/ikat.v1i1.27466 jedele, casey. “domestic restrictions on non-governmental organizations and potential protections through legal personality: time for a change?” chicago journal of international law 21, no. 1 (2020): 118147. jordaan, eduard. “worthy of membership? rwanda and south africa on the united nations human rights council.” african human rights law journal 21 (2021): 907-937. http://dx.doi.org/10.17159/19962096/2021/v21n2a36 judge, anthony j. “ngos and civil society: some realities and distortions.” transnational associations-associations transnationales, no. 3 (1995): 156-180. https://doi.org/10.1007/s41134-022-00216-1 https://doi.org/10.1007/s41134-022-00216-1 https://doi.org/10.25041/fiatjustisia.v14no4.1900 https://doi.org/10.31436/iiumlj.v29i1.630 https://doi.org/10.22146/ikat.v1i1.27466 http://dx.doi.org/10.17159/1996-2096/2021/v21n2a36 http://dx.doi.org/10.17159/1996-2096/2021/v21n2a36 addressing crisis in myanmar: the role of ngos in promoting international human rights standards ainna khairunnisa, m. ya’kub aiyub kadir, mahfud mahfud 99 kovudhikulrungsri, lailin and saovanee kaewjullakarn. “what legal measures should asean apply to help the rohingya?” south east asia journal of contemporary business, economics and law 6, no. 4 (2015): 6-14. leyh, brianne mcgonigle. “the role of universities and law schools in documenting serious international crimes and advancing the rule of law.” utrecht law review 17, no. 2 (2021): 87–101. https://doi.org/10.36633/ulr.666 martens, kerstin. “examining the non-status of ngos in international law.” indiana journal of global legal studies 10, no. 2 (2003): 1-24. price, richard. “transnational civil society and advocacy in world politics.” world politics 55, no. 4 (2003): 579-606. https://doi.org/10.1353/wp.2003.0024 rosenbaum, stephen a., david tushaus, britane hubbard, and kaylee sharp-bauer. “the myanmar shwe: empowering law students, teachers, and the community through clinical education and the rule of law.” indiana journal of global legal studies 28, no. 1 (2021): 153-230. wouters, jan and rossi inggrid. “human rights ngos: role, structure and legal status.” ku leuven, institute for international law working paper, no. 14 (2001): 1-15. http://dx.doi.org/10.2139/ssrn.2873440 legal documents aichr. terms of reference of the asean intergovernmental commission on human rights. american convention on human rights. council of europe. european convention on human rights and fundamental freedom. council of europe. european convention on the recognition of the legal personality of international non-governmental organisation. european union. council implementing regulation (eu) 2022/239 of 21 february 2022 implementing regulation (eu) no 401/2013 concerning restrictive measures in view of the situation in myanmar/burma. international covenant on civil and political rights. organization of african unity. african charter on human and people’s rights. united nations. economic and social council resolution no. e/res/1996/31 on consultative relationship between the united nations and non-governmental organizations. united nations. general assembly resolution no. a/res/74/246 on situation of human rights of rohingya muslims and other minorities in myanmar. united nations. human rights council resolution no. a/hrc/res/39/2 on situation of human rights of rohingyan muslims and other minorities in myanmar. 2018. united nations. security council resolution no. s/res/780 (1992), 6 october 1992. https://doi.org/10.36633/ulr.666 https://doi.org/10.1353/wp.2003.0024 https://dx.doi.org/10.2139/ssrn.2873440 udayana journal of law and culture vol. 7 no. 1, january 2023 100 united nations. security council resolution no. s/res/1470 (2003), 28 march 2003. united nations. universal declaration of human rights. other documents human rights council, fifty-first session, a/hrc/51/4, “report of the independent investigative mechanism for myanmar”, 12 september–7 october 2022 agenda item 4, distr.: general 12 july 2022. https://iimm.un.org/wp-content/uploads/2022/08/a-hrc-51-4e.pdf minority rights group international. “world directory of minorities and indegenous peoples – myanmar/burma: muslims and rohingya.” https://www.refworld.org/docid/49749cdcc.html reliefweb. “gender profile for humanitarian action: rakhine, kachin and northern shan, myanmar.” https://reliefweb.int/report/myanmar/gender-profile-humanitarianaction-rakhine-kachin-and-northern-shan-myanmar-volume-2 un ocha. “myanmar humanitarian update no. 7.” https://reliefweb.int/report/myanmar/myanmar-humanitarianupdate-no-7-27-may-2021 united nations general assembly. report of the secretary general, no. a/57/387, 9 september 2002. interview one ngo staff of muslim aid united kingdom (uk) and two ngo staffs of padi global asia (pga). “situation of human rights of rohingya muslims in myanmar from the perspective of human rights ngo staffs.” (their names are not revealed for confidentiality reasons). interview by ainna khairunnisa, banda aceh, january 27, 2021. case law international court of justice. press release. “application of the convention on the prevention and punishment of the crime of genocide (the gambia v. myanmar).” international court of justice. summary of application instituting proceedings and request for provisional measures (the gambia v. myanmar), 23 january 2020. international court of justice. application of the convention on the prevention and punishment of the crime of genocide (gam. v. myan.), judgment on preliminary objections (july 22, 2022). https://iimm.un.org/wp-content/uploads/2022/08/a-hrc-51-4-e.pdf https://iimm.un.org/wp-content/uploads/2022/08/a-hrc-51-4-e.pdf https://www.refworld.org/docid/49749cdcc.html https://reliefweb.int/report/myanmar/gender-profile-humanitarian-action-rakhine-kachin-and-northern-shan-myanmar-volume-2 https://reliefweb.int/report/myanmar/gender-profile-humanitarian-action-rakhine-kachin-and-northern-shan-myanmar-volume-2 https://reliefweb.int/report/myanmar/myanmar-humanitarian-update-no-7-27-may-2021 https://reliefweb.int/report/myanmar/myanmar-humanitarian-update-no-7-27-may-2021 addressing crisis in myanmar: the role of ngos in promoting international human rights standards ainna khairunnisa, m. ya’kub aiyub kadir, mahfud mahfud 101 website content alihusain, c. “the influence of ngos on international law.” https://perma.cc/jz7u-9ebp anadolu agency. “myanmar submits 2nd report on rohingya genocide to the un's top court.” https://www.dailysabah.com/world/asiapacific/myanmar-submits-2nd-report-on-rohingya-genocide-to-unstop-court bbc. “myanmar rohingya: government rejects icj ruling.” https://www.bbc.com/news/world-asia-51229796 hondius, frits. “recognition and protection of ngos in international law.” https://www.icnl.org/research/library/transnational_recognitionand protectionofngos paul, james a. “ngo access at the un.” https://archive.globalpolicy.org/component/content/article/177un/31722-ngo-access-at-the-un.html schimmel, noam. “the international human rights law responsibilities of ngos.” https://ohrh.law.ox.ac.uk/the-international-human-rightslaw-responsibilities-of-ngos https://perma.cc/jz7u-9ebp https://www.dailysabah.com/world/asia-pacific/myanmar-submits-2nd-report-on-rohingya-genocide-to-uns-top-court https://www.dailysabah.com/world/asia-pacific/myanmar-submits-2nd-report-on-rohingya-genocide-to-uns-top-court https://www.dailysabah.com/world/asia-pacific/myanmar-submits-2nd-report-on-rohingya-genocide-to-uns-top-court https://www.bbc.com/news/world-asia-51229796 https://www.icnl.org/research/library/transnational_recognitionandprotectionofngos https://www.icnl.org/research/library/transnational_recognitionandprotectionofngos https://archive.globalpolicy.org/component/content/article/177-un/31722-ngo-access-at-the-un.html https://archive.globalpolicy.org/component/content/article/177-un/31722-ngo-access-at-the-un.html https://ohrh.law.ox.ac.uk/the-international-human-rights-law-responsibilities-of-ngos https://ohrh.law.ox.ac.uk/the-international-human-rights-law-responsibilities-of-ngos 6 | udayana journal of law and culture vol. 01 no.1, january 2017 udayana journal of law and culture vol. 01 no. 1, january 2017, pp. 1-15 e-issn 2549-0680 judicial activism in brazil’s constitutional court: studies in the recognition of brazilian indigenous tenure rights anna lucia berardinelli* lawyer at berardinelli and meirelles law firm, brazil i. introduction like many countries, such as indonesia, australia and united states of america, brazil struggles with the issue of indigenous people’s rights over their immemorial land. more than a thousand years before the portuguese first arrived in brazil in the 14th century, native people already immemorially inhabited its land. those who lived there that called by the portuguese the single denomination of “indians”, despite the fact that there were a huge mosaic of different tribes and ethnic groups1 that made livelihood from hunting, collecting, and simple and semi nomadic agricultural methods.2 as centuries went through, it became very clear that the denomination they had been given was extremely poor in meaning. once inside the indigenous cultural spectrum, there was a vast and rich linguistic, religious and cultural diversity. in fact, those tribes were so foreign to one another that occasionally bloody wars erupted between them.3 although there were innumerous differences between tribes, some common practices could be observed among the great majority of them.4 many of those practices ended up having strong influence in shaping brazilian identity, such as some * correspondence: annalucia@bmcalaw.com.br 1 leandro narloch,guia politicamente incorreto da história do brasil (são paulo, br: leya, 2010), 317. 2 pedro ignácio schmitz, migrantes da amazônia: a tradição tupiguarani (porto alegre, br: unisinos, 2005), 30-35. 3 darcy ribeiro, o povo brasileiro (são paulo, br: companhia de bolso, 2003), 15. 4 itamaraty, brazilian international relations department. “a cultura dos povos indígenas”,http:// dc.itamaraty.gov.br. abstract small part of entire brazil’s national territory has already been demarcated as indigenous land. facts reveal that the natives were killed because of land issues, indicating that land issues and tenure rights are the epicenter of the problem. this article focuses on the cardinal point of brazilian legal debates: keeping indigenous people’s tenure over the land they have been occupying immemorially. the analysis explores normative aspects on constitutional and legal protection over brazilian indigenous rights and further scrutinizes the relevant case law that was settled before the brazil’s constitutional court. keywords: brazil, indigenous, constitution, court. 1 | judicial activism in brazil’s constitutional court: studies in the recognition of brazilian indigenous tenure anna lucia berardinelli culinary5 and hygiene knowledge, as well as the assimilation of many indigenous words by portuguese language6 and also assimilation of some animist tales to national folklore.7 brazilian indigenous people unconsciously contributed to consolidating colonization process. by sharing their knowledge over land and climate with the portuguese, they helped those foreigners to conquer territory and also demarcate new frontiers. even though a considerable number of laws have been approved under the purpose of protecting the indigenous people, native population was dramatically reduced, between the 16th and 20th centuries, killed not only by tenure fights, but also infectious diseases brought by european colonists. it is possible to conclude that everything was a sad aftermath of the lack of admiration portuguese conquers had towards those indigenous cultures. and by not admiring it, inevitably, they did not respect it. they considered local culture behind its time, without any refinement, and especially against christianity’s sense of morality,8 which was so important for portuguese society of that time. indigenous people were looked upon barbarian, and naïve. above all, assimilating european culture was then scientifically considered something superior, and therefore desirable. the result was tragic. tribes that did not surrender peacefully to this forced acculturation process (as it did happen to many tribes) were brutally destroyed by portuguese troops, which were much more superior militarily. with the rise of age of enlightenment in the 17th century, the major view towards indigenous people gave place little by little to a new and romanticized image of native tribes. they were seen as pure and capable of living in much more harmony with the environment.9 looking at the history of brazil on the seventeenth century, it is possible to state that the age of enlightenment gained much force in literature and other art forms. important artists and intellectuals began portraying brazilian indigenous people. this romanticized image was not able to stop the slavery and systematic killing of indigenous people by portugal colonizers. 5 gilberto freyre, casa-grande & senzala: formação da família brasileira sob o regime da economia patriarchal (são paulo, br: global, 2006), 163-165. 6 museu do ìndio,“influência da cultura indígena em nossa vida vai de nomes a medicina”, http:// prodoc.museudoindio.gov.br. 7 maria do carmo pereira coelho, as narrações da cultura indígena da amazônia tese de doutorado. (são paulo, br: puc-sp, 2003), 145-162. 8 ricardo ventura santos; flowers, nancy e coimbra jr., and carlos e. a. eds., demografia, epidemias e organização social: os xavánte de pimentel barbosa (etéñitépa), mato grosso. (rio de janeiro: fiocruz, 2005), 69-71. 9 afrânio biscardi & frederico almeida rocha, eds.,“o mecenato artístico de d. pedro ii e o projeto imperial”, http://www.dezenovevinte.net/ensino_artistico/mecenato_dpedro.htm 2 8 | udayana journal of law and culture vol. 01 no.1, january 2017 natives were never really considered equals. many of the laws approved, from that times to this day, treat the natives in contradictory ways. by trying to protect natives, brazil’s government declared their incapacity and by doing so, made them dependent on government’s charity. there has been a lot of discussion about what would be the effective strategy to protect native tribes. many efforts were made during the 1980s helped the growth of population which had been decreasing systematically. participation and involvement of international organizations such as united nations (un), organization of american states (oas) and international labor organization (ilo) as well as the international agreements made by those organizations played a major role in improving their condition. despite all efforts done, in this 21st century, the situation is still alarming. when looking towards a better future, the present is still a violent reality, especially when concerning fights over land. according to official data,10 12.54% of the entire national territory has already been demarcated as indigenous land”. most of the villages are located in the amazon rainforest. two-thirds of the indigenous population lives in these amazonian reserves and the remaining one-third is compressed in small remaining territory, spread around the entire country. between the years 2003 and 2011, more than 500 natives were killed, because of land issues. in the following year, the violence grew by 237%.11 this data indicates that land issues and tenure rights are the epicenter of the problem, because land is a powerful force and root of fundamental values for every culture. recognizing the importance of this matter, and pushed by social movements over land rights, in 1988 constitution of the federative republic of brazil (hereinafter, brazil’s constitution) declared that all people must be equal towards law without any kind of distinction. by doing so, the brazilian constitution recognized multiculturalism and expressively protected many indigenous rights, among them tenure over their immemorial land, and the preservation of their culture in their natural habitat. ii. approach this essay focuses on the cardinal point of brazilian legal debates: keeping indigenous people’s tenure over the land they have been occupying immemorially. here, the case under analysis will be a trial, decided by the brazil’s constitutional court – stf (supreme federal court), in the year of 2008. the review is going to be done from the perspective of a contemporary debate among today’s legal scholars: constitutional court’s lack of democratic legitimacy, considering constitutional judges are commonly not elected democratically, and therefore limit their ability to 10 funai,http://www.funai.gov.br/index.php/indios-no-brasil/terras-indigenas. 11 dermi azevedo,“cimi: novo genocídio ameaça povos indígenas do país”,http://www.cartamaior.com.br. 3 | broaden hermeneutics and introduce innovative interpretations of the constitution when faced a challenge of making a controversial decision. in the following pages, stf’s decision in the legal case “raposa serra do sol” (state of roraima vs. federal union and indigenous people’s council, 2008) will be analyzed from the point of view of rights protected, and the decision’s consistency with 1988’s constitution. this essay’s goal is to investigate this controversial decision’s democratic legitimacy in the context where the dichotomy judicialization of politics versus judicial activism is growing over the issue of global justice. iii. analysis 3.1. normative content – brazilian indigenous law through act 6001/1973, brazilian law has protected indigenous rights since the 1970s. unfortunately, this is a law diploma of its time, which means that it still brings the old vision of indigenous people who are in need of being introduced to and assimilated into western civilization. this law describes government charity and care towards the natives while adopting some progressive western approach and phagocytosis. of course that this outdated point of view is no longer in accordance to brazil’s constitution of 1988, which brings the latest concerns in relation to human rights and global justice. but when a new constitution is enacted, is impossible for one country to change all its legal system at once. therefore, brazil’s constitution, as did indonesia’s, provided transitional provisions. that leads to the fact that brazilian indigenous protective system is a complex and imperfect one, formed by six constitutional articles,12 one outdated law (act 6001/1973) and few other ordinances (ordinance 22/1991; ordinance 1775/1996). that means a lot of work to legal interpreters because many controversial legal concepts, such as “indigenous community” and “indigenous land”, need to be interpreted by constitutional court to define precise legal meaning. 3.2. “raposa serra do sol” jurisprudence a legal case “raposa serra do sol” state of roraima vs. federal union and indigenous people’s council, 200813 is a good example of how brazil’s constitution is apllied and interpreted in this issue. it was an emblematic trial that brought against each other various different segments of brazilian society. at one side there 12 brazil`s constitution, arts.22, xiv;129, v; 231; 232; transicional provisions, arts.14 § 1º; 67. 13 stf – brazil`s constitutional court. demarcação de terras indígenas: raposa serra do sol. brasília,http://www.stf.jus.br/arquivo/informativo/documento/informativo725.htm judicial activism in brazil’s constitutional court: studies in the recognition of brazilian indigenous tenure anna lucia berardinelli 4 10 | udayana journal of law and culture vol. 01 no.1, january 2017 were unhappy rice farmers, the state of roraima, part of the army, groups of landless people, all together against federal ordinance 534/2005 that fixed a huge part of roraima’s territory (raposa serra do sol area) as indigenous land. at the other side, brazil’s national government, catholic church, indigenous rights council and environmental council asserted that natives immemorially occupied controversial land, and that brazil’s constitution had secured indigenous tenure over it. after many violent conflicts, a roraima’s senator sued the national government, stating that land demarcation at “raposa serra do sol” area was done disregarding 1988’s constitution and pleaded the invalidity of ordinance 534/2005. he argued that, in essence, the ordinance in question possessed vices: a) people and entities affected by the controversy hadn’t all been heard; b) the anthropological report on the area under discussion would have been signed by just one professional; c) disastrous consequences would negatively affect both the state of roraima in the commercial, economic and social aspects, and the country in terms of compromises in national security and sovereignty; d) the land demarcation pattern, done without intervals between indigenous villages, almost transferred the power of state of roraima over a huge part of its territory towards national government, and therefore would have created an imbalance of the federation; e) the ordinance violates the principle of reasonableness by privileging the tutelage of natives against the private sector. in their defense, national government and indigenous council contended that: a) constitutional articles 231 and 232 predicted the guardianship of the natives and favor them in land tenure over the indigenous land; b) indigenous lands are national government’s property, as stated by the constitution; c) the state of roraima was created after 1988 when 1988’s constitution had already defined that indigenous land belonged to national government, therefore no territory subtraction, or lack of equity concerning the ordinance could be sustained by states. in the end of a long and polemic trial, the constitutional court – stf favored indigenous people’s theses, backing national government’s pleas. regarding indigenous tenure over borderland and potential sovereignty issues, the court ruled that the constitution did not make any exception and that natives have always opposed the attempts of foreign invasions. it was also added that this decision was indeed a excellent reason to increase border police presence in the region, not only to protect borders and sovereignty, but also indigenous people themselves. also concerning potential damages to landowners, it was held that the term “originários”,14 contained in article 231 of the constitution, reflects the oldest and most powerful right concerning land to prevail on any non-natives’ public deeds or tenure titles. it has been argued that private rice farmers, who were occupying indigenous lands since 1992, would not have a legitimate tenure, because the previous tenure was actually fraudulent. in addition to that, the presence of extensive rice farming 14 in free translation, originating. 5 | was turning the soil in this area an unfertile one, what could represent an immense damage to natives’ activities and also degrades environmental resources, necessary for the welfare of all natives. crowning the decision, it was stressed that brazil`s constitution would as well recognize indigenato,15 which is a legal institution that keeps tradition dating back to colonial times and that is more powerful than any other vulgar tenure, contained in civil law. by recognizing so, brazil is following an international tendency in dealing with the indigenous issue and global justice concern, such as concerns from australia, new zealand, canada and the usa. finally, the proportionality principle was emphasized to assure the dignity of indigenous life conditions to their present life and future generations. regarding the continuous format of the indigenous demarcation, without any interval between villages, it was stressed that the will of constitution was to be generous to native people. as said by the court, articles 231 and 232 have a clearly fraternal purpose, bringing natives a new kind of equality, namely, civil and moral minorities’ equality. it is clear, therefore, an option to adopt a mechanism of affirmative action (or positive discrimination). 3.3. affirmative action or positive discrimination–a new kind of equality to minorities to take affirmative action (or positive discrimination) means to promote the opportunities of defined minority groups within a society to give them equal access to what the majority of population already has. it is often instituted by government to ensure that certain designated “minority groups” have the equal rights. it also helps to compensate for past discrimination, persecution or exploitation by the ruling class of a certain culture16 and to address existing discrimination. the affirmative action or positive discrimination doctrine was introduced to deal with the finding that it is insufficient to treat individuals equally, in a generic way. it was found that to provide true equality it is necessary to treat each individual or group individually towards law, considering their uniqueness. this means to give certain groups special protection, making them able to face their own vulnerability. 15 the legal institution of indigenato is the recognition by brazilian government of immemorial indigenous land title, in order to assure natives have their social organization, customs, languages, beliefs and traditions, as well as tenure to the lands they traditionally occupy. 16 thomas sowell, affirmative action around the world: an empirical study (new haven: yale university press, 2004). judicial activism in brazil’s constitutional court: studies in the recognition of brazilian indigenous tenure anna lucia berardinelli 6 12 | udayana journal of law and culture vol. 01 no.1, january 2017 after brazil adopted international convention on the elimination of all forms of racial discrimination,17 many legal scholars in the nation, such as boaventura de souza santos, are developing theses about this subject, trying influence courts and judges, and by doing so, compensate many injustices in brazilian society, mostly regarding slavery and injustices towards indigenous people. bellow santos’s teaching in a translation: “... we have the right to be equal when our difference makes us inferior; and have the right to be different when our equality mischaracterizes us. hence the need for a kind of equality, that recognizes differences, but also the right to be different without producing, or reproducing inequalities”.18 north american experience19 proves that affirmative actions are effective in providing greater equality, what means that these actions are relevant in implementing right to equality. brazil’s legislative has already implemented some affirmative actions, especially concerning injustices related to slavery. but towards indigenous people not much has been done yet. therefore, the emergent adoption of affirmative action to promote better equality in opportunities to natives, especially through compensatory measures. and considering the legislative lack of action, it is very important that the judiciary assume its role in ensuring the constitution. 3.4. innovative jurisprudence: judicialization of politics or judicial activism? despite the fact that brazil’s constitutional court gave a brilliant and innovative decision to the case, it was subject of strong criticism, regarding the broadening interpretation given, in order to set new, and needed, regulation for the indigenous tenure issue. in recent years, stf20 has played an active role in brazil’s institutional life by deciding innumerous polemic social and political issues, always innovating in its jurisprudence. this is a phenomenon known as judicialization of politics, which means that some social or political issues are being decided by the judiciary, and not by conventional and democratically elected institutions, such as legislative and executive. but this is not a brazilian singularity: in many different parts of the world, in dif17 article 1 of the international convention on the elimination of all forms of racial discrimination defines racial discrimination as: “... any distinction, exclusion, restriction or preference based on race, color, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing of human rights and fundamental freedoms.” 18 boaventura de souza santos,“por uma concepção multicultural de direitos humanos”. 1997, revista crítica de ciências sociais, 48, 11-32.,”(são paulo, br: puc-sp, 2003), cadernos de pesquisa, v. 35, n. 124, p. 429-461. 19 flávia piovesan, açõesfirmativas da perspectiva dos direitos humanos (são paulo: puc-sp, 2005),cadernos de pesquisa, v. 35, n. 124, p. 53. http://egov.ufsc.br/portal/sites/default/files/ anexos/15390-15391-1-pb.pdf 20 brazil`s constitutional court, http://www.stf.jus.br. 7 | ferent times of history, constitutional and supreme courts stood out as protagonists in political issues of wider significance, helping implementing public policies.21 but what would be the phenomenon’s causes? the first one to be pointed out is recent democratization. that was clearly brazil’s case, especially considering the political environment after the end of dictatorship, and promulgation of 1988’s constitution. during dictatorship period, brazil’s judiciary was more a technical institution, but after the end of it, the judiciary system, mainly stf, could really take its place as a political power, enforcing the constitution. analytical constitutions, being very detailed ones, could be pointed as the second cause to the phenomenon, as stating about numerous matters, which were previously left to ordinary legislation. this kind of more detailed constitution was a worldwide trend, brought by portugal’s (1976) and spain’s (1978) constitutions. brazil also followed this trend in 1988. the issue with this pattern is that every matter stated by the constitution, is a potential new law case before the constitutional court that ends up deciding many social and political issues. therefore, it is possible to conclude that judicialization and the major role played by constitutional courts are more a natural consequence of democratizations than an evil to be avoided. but this could turn into an undemocratic way of acting, unbalancing political powers. this phenomenon is known as judicial activism and considered as undesirable. the origins of judicial activism date back to american jurisprudence. according to luis roberto barroso, a brazilian legal scholar and a judge at the brazilian constitutional court,22 judicial activism is “an attitude, choosing a specific and proactive way of interpreting the constitution, expanding its meaning and scope. usually it settles in legislative retraction situations, when a certain detachment between the political class and civil society, when denial of social incoming demands can be observed.”23 still learning from his teachings, what distinguishes judicial activism is a pattern in broadening the application of the constitution and enforcement hypotheses, forcing executive to take action in implementing public policies. in “raposa serra do sol” trial, the court established eighteen new premises concerning indigenous land and indigenous tenure.24 all premises were based on brazil’s constitution, acts and ordinances related to the subject. but as aimed bellow, 21 luis roberto barroso ,“judicialização, ativismo judicial e legitimidade democratica”,http:// www.direitofranca.br/direitonovo/fkceimagens/file/artigobarroso_para_selecao.pdf , page 2. 22 professor of constitutional law, phd and associate professor state university of rio de janeiro (uerj). master yale law school. author of contemporary course of constitutional law and judicial review in brazilian law, among others. judge at stf – brazil`s constitutional court. 23 luis roberto barroso, 17. 24 stf – brazil`s constitutional court. judicial activism in brazil’s constitutional court: studies in the recognition of brazilian indigenous tenure anna lucia berardinelli 8 14 | udayana journal of law and culture vol. 01 no.1, january 2017 the court progressed towards a much more detailed jurisprudence, truly innovating on the subject: 1) use of soil and its riches, rivers and lakes located in indigenous lands can be suppressed by the national government, based on national interest;25 2) indigenous tenure does not cover the exploitation of water resources, which always depends on legislative authorization;26 3) indigenous tenure does not cover research and mining, which always depends on legislative authorization;27 4) indigenous tenure does not include mining, or sparking mining, which depends on small-scale mining association’s authorization;28 5) national defense policy prevails over indigenous tenure, and the installation of military bases, military posts and other military interventions, can be implemented by the national defense council without any prior consultation towards communities or funai;29 6) as a matter of duty, military forces and federal law enforcement shall occupy indigenous land, and their presence will be guaranteed regardless of whether any consultation took place with communities or funai;30 7) indigenous tenure does not prevent the installation of public facilities, especially concerning health and education, but also communication networks, roads and transportation networks by the national government;31 8) indigenous tenure over environmentally protected areas restricts entry, transit and residence, as well as hunting, fishing and the extraction plant (restricted to periods, seasons and conditions fixed by law;32 9) chico mendes institute for biodiversity conservation in charge of environmentally protected area (also affected by indigenous tenure) is only allowed to give suggestions concerning indigenous communities, traditions and mores after consulting funai;33 25 brazil`s constitution, art. 231; act 6001/73, art. 62. 26 all of brazil`s constitution, arts. 49, xvi; 20, xi, 176; 231, § 3; ordinance 227/67, and act 9314/96. 27 brazil`s constitution, art. 231, § 3. 28 article 231, § 7, c / c 174 §§ 3 and 4 of brazil`s constitution. act 6567/78; act 7805/89; 29 brazil`s indigenous council, http://www.funai.gov.br and brazil`s constitution, art. 171, § 1, i; 142; 22, cf xxxviii; ordinance 5484 /05. 30 act 6001/73, art. 34. 31 brazil`s constitution, arts. 220; 224; 88; 21, xii, d); 22, xi; 177;178. cf 220/224/88), (articles 21, xii, d), xx all of brazil`s constitution. 32 act 7643/87; act 7679/88; ordinance 221/67 and act 11380/06, and brazil`s constitution, art. 231, § 2. 33 act 11.516 / 07. 9 | 10) non-natives are allowed to visit environmentally protected area (that is also indigenous land) at times and conditions stipulated by the park administration;34 11) concerning indigenous land, which is not designated as environmentally protected, non-natives’ entry, transit, or residence is subject to the conditions set out by funai;35 12) non-natives’ entry, transit, or residence is free of any charge from indigenous community;36 13) use of roads, public facilities, power transmission lines or other equipment and facilities placed in service to the public is free of any charge from indigenous community;37 14) indigenous lands shall not be subject to lease, selling or any other act or business that could restrict the full and direct exercise of indigenous tenure;38 15) hunting, fishing and gathering fruit as well as mining and agricultural activities are strictly prohibited on indigenous lands by any non-natives;39 16) indigenous tenure, and all assets that come from it, is free of any charge from the government, and enjoy full tax exemption, thus shall not be subjected to the collection of any taxes or fees;40 17) indigenous land shall not be expanded; 18) indigenous tenure shall prevail over any other tenure, under any circumstances, and indigenous land is inalienable and unavailable, and cannot be object of sale, donation or any business of any kind.41 from the above statements, it is possible to state that even though the stf has already done a great job, pushing jurisprudence further, there is still a long way ahead to effectively protect indigenous people. despite the activism sparkle in this decision, brazil’s law is still behind international standards. analyzing stf decision, it is possible to conclude that the judicialization phenomenon, but not judicial activism, is present in the “raposa serra do sol” trial. this case represents a natural consequence of the constitutional pattern adopted. even the most innovative aspects of this trial were based on the law. there is no trace of deliberate maneuver to turn it into a political decision. added to that, de34 act 11.516 / 07. 35 act 5371/67; ordinance 3156/99. 36 brazil`s constitution, art.150. 37 ibid. 38 ibid., art. 231, § 4. 39 ibid., art. 231, § 2. 40 act 6.001/73art. 60; act 9.393/96. 41 brazil`s constitution, art. 231, § 4. judicial activism in brazil’s constitutional court: studies in the recognition of brazilian indigenous tenure anna lucia berardinelli 10 16 | udayana journal of law and culture vol. 01 no.1, january 2017 spite all polemic concerning the trial, the court had to decide the law case, as a matter of duty, once indigenous land is a matter to be ruled under the 1988’s constitution. as explained above, this is a main aspect of this phenomenon. but above all, the decision was in accordance with a major thought in the country, and therefore a democratic and legitimate one. iv. concluding remarks in brazil’s legal system, indigenous land is demarcated by funai, the indigenous council, that is responsible for protecting interests of the indigenous people (land, culture, and way of living). this pattern differs from the one adopted by the united states of america, where the federal government signed treaties with native tribes to reserve land under tribal and individual native’s ownership. brazilian’s indigenous lands, as already stated above, even if already demarcated, are inalienable national government`s assets, over which indigenous people have lifetime tenure towards brazil’s constitution.42 disputes concerning indigenous land dating from colonial times always have been cause to controversy, violence, human rights violations and corruption.43 nowadays, the areas located outside amazon rain forest are the main stage where the most violent conflicts take place because of high population density. this was exactly the case of “raposa serra do sol” area, located on the state of roraima. indigenous people usually face a lot of opposition from farmers and mining corporations, particularly in areas where agribusiness, mining companies and industries use their enormous political power and economic influence to gain access to indigenous land, as happened in roraima. despite all difficulties, the solution to indigenous lands issue has important implications, not only for the survival of those peoples, but also for forests conservation. natives are known to deal with environment in a way to protect its reproductive capacities. it seems that there is still a long way in achieving the goals as expected in international agreements that have been adopted by brazil. according to millennium ecosystem assessment, a major scientific publication on environment issues, although more comprehensive scientific studies are necessary to confirm this, it seems that indigenous people’s occupation in their immemorial land and their continuation of traditional way of living as be an effective tool for the preservation of forests as wildlife 42 joênia batista de carvalho, a casa é um asilo inviolável. series via dos sabers n. 3 (brasília: mec/ enesco, 2006), 85-101. 43 liana laurence, “presidente da funai sai em meio a conflitos indígenas e mudanças nas regras de demarcação,”http://memoria.ebc.com.br/agenciabrasil 11 | judicial activism in brazil’s constitutional court: studies in the recognition of brazilian indigenous tenure anna lucia berardinelli 12 sanctuaries.44 brazil is one of the world champions in deforestation, and suffers from numerous other threats that endanger biodiversity and ecosystems, such as pollution and global warming. in this sense, the natives’ role, settled in their own land and keeping their traditional way of life, is an essential one. the entire world should learn from indigenous communities as they are considered examples of sustainable forest management. indigenous people fate, in brazil, is still uncertain, and many fights are to be expected ahead. disputes concerning their lands continuously multiply. even with all the advances and legal protection, even with all the communities’ political awareness, their joint mobilization, and even with the support of a significant portion of brazil’s non-native population and international organizations, many communities still face deaths, abuse, and violence. there is still a long way to ensure indigenous people get their land for their survival in a dignified and independent way. it would be ideal that they do not require government’s guardianship. historically, they were understood as incapable of living without such guardianship. yet, the government has been unable to provide indigenous people with the rights that have been constitutionally guaranteed. as a matter of fact, many changes will be brought by the creation of regional councils to address economic aspects of challenges by increasing business opportunities. proposed changes will inevitably lead to land issues. as discussed above, land plays a major role in keeping traditional ways of life. keeping traditional ways of life helps to protect the environment. it is a two-way road. unfortunately, many of today’s economic activities, such as mining, agricultural activities, and huge factories harm land. as a consequence, they can harm traditional communities in its existence and dignity. learning from brazil’s experience, is important to keep in mind when facing strong economic power and trying to provide global justice. sometimes legislative and executive actions may not be enough. a strong judiciary system, mainly a strong constitutional court, is needed that is mature enough to ensure the constitution protection for those who are most vulnerable against all threats. 44 core writing team, ecosystems and human well-being: a report of the millennium ecosystem assessment(washington dc: island press,2005). 18 | udayana journal of law and culture vol. 01 no.1, january 2017 bibliography books carvalho, joênia batista de. a casa é um asilo inviolável. series via dos sabers n. 3. brasília: mec/enesco, 2006. coelho, maria do carmo pereira. as narrações da cultura indígena da amazônia tese de doutorado. são paulo, br: puc-sp, 2003. core writing team. ecosystems and human well-being: a report of the millennium ecosystem assessment. washington dc: island press, 2005. freyre, gilberto. casa-grande & senzala: formação da família brasileira sob o regime da economia patriarchal. são paulo, br: global, 2006. narloch, leandro. guia politicamente incorreto da história do brasil. são paulo, br: leya, 2010. ribeiro, darcy. o povo brasileiro. são paulo, br: companhia de bolso, 2003. santos, ricardo ventura; flowers, nancy e coimbra jr., and carlos e. a., eds. demografia, epidemias e organização social: os xavánte de pimentel barbosa (etéñitépa), mato grosso. rio de janeiro: fiocruz, 2005. schmitz, pedro ignácio. migrantes da amazônia: a tradição tupiguarani. porto alegre, br: unisinos, 2005. sowell, thomas. affirmative action around the world: an empirical study. new haven: yale university press, 2004. journals piovesan, flávia. “ações afirmativas da perspectiva dos direitos humanos” (são paulo: puc-sp, 2005), cadernos de pesquisa, v. 35, n. 124, p. 53. http:// egov.ufsc.br/portal/sites/default/files/anexos/15390-15391-1-pb.pdf santos, boaventura de souza. (1997), “por uma concepção multicultural de direitos humanos “, revista crítica de ciências sociais, 48, 11-32. paulo, br: puc-sp, (2003), cadernos de pesquisa, v. 35, n. 124. 13 | 14 legal document act 5.371/67. establishes the creation of indigenous council, funai. act 6.001/73. indigenous law. act 6.567/78. establishes rules for mining. act 7.643/87. establishes rules for fishing. act 7.805/89. establishes rules for mining. act 9.393/96. establishes rules for rural property. act 11.516 / 07. establishes the creation of the chico mendes institute for biodiversity conservation instituto chico mendes. constitution of the federative republic of brazil international convention on the elimination of all forms of racial discrimination, united nations, treaty series, vol. 660, p. 195. internet azevedo, dermi. “cimi: novo genocídio ameaça povos indígenas do país,” http:// www.cartamaior.com.br barroso, luis roberto. “judicialização, ativismo judicial e legitimidade democratica,”http://www.direitofranca.br/direitonovo/fkceimagens/file/ artigobarroso_para_selecao.pdf biscardi, afrânio and frederico almeida rocha, eds., “o mecenato artístico de d. pedro ii e o projeto imperial”, http://www.dezenovevinte.net/ensino_artistico/mecenato_dpedro.htm funai, http://www.funai.gov.br/index.php/indios-no-brasil/terras-indigenas itamaraty, brazilian international relations department. “a cultura dos povos indígenas,” http://dc.itamaraty.gov.br laurence, liana. presidente da funai sai em meio a conflitos indígenas e mudanças nas regras de demarcação”, http://memoria.ebc.com.br/agenciabrasil judicial activism in brazil’s constitutional court: studies in the recognition of brazilian indigenous tenure anna lucia berardinelli 20 | udayana journal of law and culture vol. 01 no.1, january 2017 15 museu do ìndio. “influência da cultura indígena em nossa vida vai de nomes a medicina” ,http://prodoc.museudoindio.gov.brstf – brazil`s constitutional court, ”demarcação de terras indígenas: raposa serra do sol”,http:// www.stf.jus.br/arquivo/informativo/documento/informativo725.htm e-issn 2549-0680 vol. 7, no. 1, january 2023, pp. 102-120 doi: https://doi.org/10.24843/ujlc.2023.v07.i01.p06 this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licenses/by/4.0/) 102 towards alternative energy sources: is it time to switch to nyamplung? abdhy walid siagian* center for the study of energy law and policy, faculty of law, universitas andalas, padang, indonesia muhammad syammakh daffa alghazali** faculty of law, universitas andalas, padang, indonesia abstract nyamplung is one of the six priority non-timber forest products in indonesia. this type of mangrove has a high yield of oil as a raw material biofuel with a 40-70% higher percentage than other plants, such as oil palm, whose percentage is only 46-54%. this article examines indonesia's commitment to accelerate the transition to new and renewable energy through biofuels to meet the national electricity supply. in addition, it conducts an economic calculation of nyamplung as alternative energy for biofuels. the writing of this article reflects an economic analysis of law that combines legal analysis based on norms, guidelines, and plans as stipulated in indonesian laws and regulations and international instruments and economic analysis referring to relevant data and sources. this article concludes that nyamplung may serve as an alternative energy source to fulfill future national energy needs, which aligns with efforts to achieve a sustainable environment. despite laws and policies on national energy supporting any efforts to complement and substitute current energy sources, the utilization of nyamplung has yet to be optimized as a biofuel. keywords: economic analysis of law; environment sustainability; indonesia; nyamplung mangrove; national energy. 1. introduction the increasing energy demand is generally influenced by rapid industrialization and economic development. this increase has an impact, especially on environmental issues and, in the broader scope, climate change. most countries have made various efforts to address this issue by formulating environmentally friendly policies.1 indonesia is one of the developing countries most vulnerable to climate change impacts.2 for years, indonesia has been criticized for its slow *email/corresponding author: abdhy.walid11@gmail.com ** email: daffasyammakh@gmail.com 1 andreas goldthau and jan martin witte, global energy governance the new rules of the game (berlin: policy institute, 2010), 12. 2 diah apriani atika sari and rachma indriyani, “loss and damage due to climate change in indonesia: an overview of the asean cooperation adapting to global warming,” indonesian journal of international law 12, no. 3 (2015): 396. https://doi.org/10.24843/ujlc.2023.v07.i01.p06 http://creativecommons.org/licenses/by/4.0/ mailto:abdhy.walid11@gmail.com mailto:daffasyammakh@gmail.com towards alternative energy sources: is it time to switch to nyamplung? abdhy walid siagian and muhammad syammakh daffa alghazali 103 progress and lack of effort in dealing with climate change.3 however, indonesia is optimistic about mitigation and adaptation to climate change, to see the opportunities in law and regulation aspects and the various policies and regulations. some of these opportunities include: first, government policy and some arrangements have existed and continue to be prepared in the context of climate change mitigation and adaptation; and second, laws and regulations have adopted climate change issues, such as institutional formation specialized on climate change; the national action plan for greenhouse gas emission reduction as a climate change mitigation; environmental license mechanism systems approach to climate change mitigation; national development plans with the approach to climate change adaptation and energy support; and opportunities for international cooperation with regard to climate change mitigation and adaptation.4 natural resource based-energy is essential for controlling the lives of many people in indonesia. the 1945 constitution of the republic of indonesia (the 1945 constitution) covers the economic aspects of energy in chapter xiv concerning the national economy and social justice. article 33 (2) states that “production sectors important for the state and vital for the livelihood of the people at large shall be controlled by the state.”5 next, article 33 (3) stipulates that “the land and waters and the natural wealth contained in it shall be controlled by the state and utilized for the optimal welfare of the people.”6 in the meantime, these constitutional provisions become the foothold of energy sovereignty. in addition, the 1945 constitution determines that the national economy shall be conducted under economic democracy under some principles, among others, sustainability and environmental insight.7 the establishment of a foothold for the meaning of energy sovereignty is built. the concern for a sustainable environment in the implementation of the national economy reflects the 3 see caroline bulolo, “indonesia’s cew climate plan: slow progress but change imminent,” https://chinadialogue.net/en/climate/indonesias-new-climate-plan-slowprogress-but-change-imminent/ 4 see maret priyanta. “intergrated environmental law system strategies to adapt climate change impact from energy resilience in indonesia,” jurnal dinamika hukum 17, no. 3 (2017): 298. 5 the constitutional court has reviewed several laws regarding natural resources. according to the constitutional court, state control needs to be interpreted in depth which originates and is derived from the concept of people's sovereignty over all existing natural resources. it includes the notion of public ownership by the people's collectivity of natural resources. see lego karjoko, i gusti ayu ketut rachmi handayani, and willy naresta hanum, “legal policy of old wells petroleum mining management based on social justice in realising energy sovereignty,” sriwijaya law review 6 no. 2 (2022): 287-288. 6 pursuant to the english version of the 1945 constitution by the constitutional court of the republic of indonesia. see the constitutional court of the republic of indonesia, “the 1945 constitution of the republic of indonesia and law of the republic of indonesia concerning the constitutional court,” https://www.mkri.id/public/content/infoumum/regulation/pdf/uud45%20eng.pdf 7 the 1945 constitution of the republic of indonesia, art. 33 (4). https://chinadialogue.net/en/climate/indonesias-new-climate-plan-slow-progress-but-change-imminent/ https://chinadialogue.net/en/climate/indonesias-new-climate-plan-slow-progress-but-change-imminent/ https://www.mkri.id/public/content/infoumum/regulation/pdf/uud45%20eng.pdf udayana journal of law and culture vol. 7 no. 1, january 2023 104 incorporation of the concept of a ‘green constitution’ in the 1945 constitution.8 the development agenda contained in the 2016 national legal development document desires harmony in managing both natural resources and the environment, especially concerning the energy sector. it underlines the need to strengthen supply, mix, and energy consumption efficiency.9 indonesia is a country that has abundant natural resources, with an area of around 1.9 million km2 and a population currently reaching 278 million people with an average economic growth of 5% per year is faced with a trend of increasing needs and energy consumption.10 energy consumption, including in indonesia, is highly dependent on fossil fuels, especially oil and coal.11 the mass exploitation of fossil-based energy decreases the availability and reserves, leading to an effort to seek alternative energy as a substitution. the transition from fossil energy to new renewable energy on a large and rapid scale seems to be unavoidable.12 the transitional policy will achieve at least three goals in a single action, i.e., to mitigate the adverse impact of climate change, encourage sustainable economic growth, and maintain national energy security. the concept of new and renewable energy (energi baru terbarukan /ebt) then seems to be relevant.13 the use of ebt does not only aim at reducing the utilization of fossil energy but also as an embodiment of clean and environmentally sound energy.14 this embodiment was supported by the energy trilemma (three pillars of energy management principles), which explains that to produce sustainable energy is based on 3 (three) index 8 see i gede yusa dan bagus hermanto, “implementation of green constitution in indonesia: guarantees of constitutional rights of sustainable enviromental development,” jurnal konstitusi 15, no. 2 (2018): 310-315. see also sekar anggun gading pinilih, “the green constitution concept in the 1945 constitution of the republic of indonesia,” mimbar hukum 30, no. 1 (2018): 203-206. 9 national legal development agency, “national legal development document”, 70. https://www.bphn.go.id/dpage/reports/res_dphn 10 kompas, “total population of indonesia,” https://nasional.kompas.com/read/2022/04/27/03000051/jumlah-penduduk-indonesia2022 11 muhammad azhar, “the new renewable energy consumption policy of rare earth metals to build indonesia's national energy security,” conference guidelines the 1st sriwijaya international conference on environmental issues (2018): 84. 12 aditya arso perdana, muhammad ery wijaya, and ichsan, “accelerating renewable energy development toward energy security,” jurnal kebijakan publik 13, no.4, (2022): 405. 13 biro komunikasi. "layanan informasi publik dan kerja sama kementerian energi dan sumber daya mineral." jurnal energi: program strategis ebtke dan ketenagalistrikan, edisi 2 (2016): 9. 14 aan jaelani, “renewable energy policy in indonesia: the qur'anic scientific signals in islamic economics perspective,” international journal of energy economics and policy 7, no. 4 (2017): 193-204. https://www.bphn.go.id/dpage/reports/res_dphn https://nasional.kompas.com/read/2022/04/27/03000051/jumlah-penduduk-indonesia-2022 https://nasional.kompas.com/read/2022/04/27/03000051/jumlah-penduduk-indonesia-2022 towards alternative energy sources: is it time to switch to nyamplung? abdhy walid siagian and muhammad syammakh daffa alghazali 105 assessment dimensions, namely: the dimensions of energy security, energy equity (accessibility and affordability), and environmental sustainability.15 the utilization of ebt, also known as clean energy, has become a global concern.16 the 21st conference of the parties (cop) of the united nations framework for climate change (unfccc) in paris on 30-13 december 2015, agreed upon a joint action that aims to stop global warming below 2oc.17 the cop becomes a historic meeting as it concluded the first legally binding agreement since the kyoto protocol which was adopted at the 3rd cop meeting in 1997. this basis serves as a guide so that countries in the world are committed to presenting policies to reduce carbon emissions world.18 a promising development was when indonesia ratified the paris agreement to the united nations framework convention on climate change through law no. 16 of 2016. it then leads indonesia to strive for a renewable energy transition by reducing carbon emissions. law no. 30 of 2007 concerning energy (energy law) defines renewable energy as an energy source that is produced from sustainable energy resources if appropriately managed, including geothermal, wind, bioenergy, sunlight, water flows, and waterfalls, as well as the movement and temperature differences of the sea layers.19 energy transition efforts in indonesia mandate the realization of energy management that is just, sustainable, and environmentally sound in the context of realizing national energy independence and national energy security based on energy sovereignty and fair economic values. in line with this, it directly mandates indonesia to reduce the use of fossil energy by prioritizing fulfillment of new and renewable energy by 23% in 2025 and at least 31% in 2050.20 the fulfillment of the need for national energy has become an urgent matter in realizing national energy security.21 the national energy policy is conducted based on the principles of justice, sustainability, and environmental insight to achieve self-reliance and security of energy.22 the energy management effort referred to is the implementation of activities for supplying, exploiting, utilizing energy, providing strategic reserves, and 15 national energy council. national energy mix (jakarta: national energi council, (2020), 83. 16 national energy council, op.cit.,1. 17 united nations climate change, cop-21 paris,” https://unfccc.int/event/cop-21 18 ibid. 19 law no. 30 of 2007 concerning energy, art. 1(6). 20 grita anindarini widyaningsih, “presidential regulation number 22 of 2017 concerning the national energy general plan,” indonesian journal of environmental law 4, no. 1 (2017): 141. 21 gde pradnyana, "pemenuhan kebutuhan energi dalam rangka mewujudkan ketahanan nasional." jurnal maksipreneur: manajemen, koperasi, dan entrepreneurship 5, no. 2 (2016): 67. 22 government regulation no. 79 of 2014 concerning national energy policy, art.2. https://unfccc.int/event/cop-21 udayana journal of law and culture vol. 7 no. 1, january 2023 106 conserving energy resources.23 the energy law mandates the government to formulate a national energy policy or kebijakan energi nasional (ken) as a guideline for national energy management. as an implementing regulation of the energy law, the government regulation no. 79 of 2014 concerning national energy policy (peraturan pemerintah tentang kebijakan energi nasional/pp ken) determines policies to be implemented from 2014 to 2050. 24 further, presidential regulation no. 22 of 2017 concerning the national energy general plan (rencana umum energi nasional/ruen) determines a ruen for a period up to 2050 which includes among others current national energy conditions and future expectations; vision, mission, goals, and targets of national energy; and national energy management policy and strategy.25 the demand for energy in indonesia is continuously increasing along with the progress of industrialized development which then places indonesia facing the challenge of meeting its domestic energy consumption.26 energy consumption increased by an average of 2,6% per year, from approximately 99 million tons of oil equivalent (mtoe) in 1990 to 240 mtoe in 2017. besides, indonesia's per capita energy consumption has also increased from 0.71 tonnes of oil equivalent (toe)/per capita in 2010 to 0.76 toe/per capita in 2015, growing 1.5% per year. the increase has occurred in the need for energy consumption which so far has been chiefly met from fossil energy sources, ranging from petroleum, natural gas, and coal, which reached 91.45%.27 this dependency reflects a challenge for indonesia to diminish the availability of fossil energy reserves. undeniably, indonesia must strive an effort to replace the use of fossil energy with new and renewable energy. in addressing this concern, the government introduced a biofuel policy that is expected to be a solution to meeting national energy needs and at the same time fulfilling international commitments to reduce global emissions amid the threat of climate change.28 in indonesia, biofuel is generally called bahan bakar nabati (bbn). utilization of biofuels in the form of biodiesel, bioethanol, and bio avtur is part of the direct utilization of energy which is expected to meet 23 mtoe or 25% of the ebt contribution target in 2025. in 23 ibid., art. 1 (8). see also savira ayu arista et al., “national energy policy development and new and renewable energy in indonesia,” journal of syntax transformation 2, no. 12 (2021): 1780. 24 government regulation no. 79 of 2014 concerning national energy policy, art. 4. 25 presidential regulation no. 22 of 2017 concerning the national energy general plan, art. 2 (1). 26 poppy winanti, et.al., "indonesian energy diplomacy," figshare 25 (2020): 13. 27 ibid. see also ministry of energy and mineral resources, handbook of energy and economic statistics of indonesia (jakarta: ministry of energy and mineral resources, 2018), 18. 28 tiara yasinta and mahawan karuniasa, “palm oil-based biofuels and sustainability in indonesia: assess social, environmental and economic aspects,” iop conference series: earth and environmental science 716 (2021): 1. towards alternative energy sources: is it time to switch to nyamplung? abdhy walid siagian and muhammad syammakh daffa alghazali 107 2018 the production of biodiesel increased by 36% compared to 2017. this positive trend was an impact of the minister of energy and mineral resources regulation no. 41 of 2018 concerning the provision and procurement of biodiesel type, mainly under the framework of financing by oil palm plantation fund management agency (badan pengelola dana perkebunan kelapa sawit /bpdpks) and presidential regulation no. 66 of 2018 concerning the second amendment to presidential regulation no. 61 of 2015 concerning the collection and use of oil palm plantation funds. until present, the use of biofuels as fuel substitutes is biodiesel obtained from the esterification of crude palm oil (cpo) or castor oil. palm oil has faced sharp criticism, especially for sustainability and food security.29 in 2019, the phasing of biodiesel reached 20% (b20) for all sectors, with achievements that exceeded the target of ruen. the blending of biodiesel is increased to a level of 30% (b30) in diesel fuel starting in 2020. the b20 program can run well because of the existence of palm oil plantation funds, one of whose functions is to supply and utilize biodiesel. however, if there is a difference in the price of cpo and the price of petroleum getting higher, funds for other activities related to the development of plantations and the palm oil industry will be disrupted. the massive use of cpo also has a particular impact on the scarcity on people's need for cpo based-cooking oil. in this situation, nyamplung mangroves (calophyllum inophyllum) is proposed as a promising source of energy. as a type of mangrove tree, nyamplung is spread widely in almost all indonesian coastal areas. it offers a high oil yield in the percentage of 40-70%, compared to other plants, such as oil palm, which percentage is only 46-54%. therefore, nyamplung is very potential to be utilized. this article aims to offer a solution to address indonesia's energy problem by proposing using nyamplung mangroves to produce biodiesel. it will focus on two issues. first, it assesses indonesia's commitment to accelerate the transition to new and renewable energy through biofuels to meet the national electricity supply. second, it conducted an economic calculation of nyamplung mangrove as biofuel alternative energy. this article reflects an economic analysis of law.30 it combines legal analysis based on 29 douglas sheil, et.al., the impacts and opportunities of oil palm in southeast asia what do we know and what do we need to know? (bogor: center for international forestry research (cifor), 2009), 32. 30 economic analysis of law deploys the tools of micro-economic theory to study legal rules and institutions. it has been further developed by law scholars. for example, it assumes that every regulation is a economic arrangement that based on the idea of efficiency. see stanford encyclopedia of philosophy, “economic analysis of law,” revised version january 7, 2022, https://plato.stanford.edu/entries/legal-econanalysis/. see also fajar sugianto, velliana tanaya, and veronica putri, “penilaian efisiensi ekonomi dalam penyusunan langkah strategis terhadap regulasi,” jurnal rechtsvinding 10 no. 3 (2021): 447. https://plato.stanford.edu/entries/legal-econanalysis/ udayana journal of law and culture vol. 7 no. 1, january 2023 108 norms, guidances, and plans as stipulated in indonesian law and regulations and international instruments and economic analysis that refers to relevant data and resources. 2. result and analysis 2.1. indonesia's commitment to accelerate the transition of new and renewable energy through biofuels in 2016, the government explicitly mentioned the need to accelerate the development of electricity infrastructure. such an acceleration can be achieved through the construction of a 35,000 mw power plant and a 46,000 km transmission line by prioritizing the use of new and renewable energy in order to support efforts to reduce greenhouse gas (ghg) emissions.31 it becomes a general expectation that the government of indonesia can demonstrate a strong commitment to developing renewable energy, which requires achievable objectives and supporting policies.32 this section evaluates the commitment of the indonesian government to accelerate the transition of ebt through biofuel. the assessment mainly refers to compliance with international agreements and the adoption of national law, regulation, and policy that support the excessive use of biofuel. in the international context, the energy transition towards ebt is carried out to anticipate various activities that lead to an increase in ghg emissions. the massive increase in ghg emissions raised awareness of international society and triggers high-level meetings to adopt common measures as well as create programs to reduce it internationally,33 including the united nations conference on the human environment which was held in stockholm on 5-16 june 1972.34 the implementation of this idea was then set forth in the united nations framework convention on climate change (unfccc). in 2016, indonesia ratified paris agreement to the unfccc,35 which entails a commitment for indonesia to reduce emissions 31 presidential regulation no. 4 of 2016 concerning the acceleration of electricity infrastructure development, consideration (a). 32 aditya arso perdana, muhammad ery wijaya, and ichsan, loc.cit. 33 katadata, “energy transition: its definition, benefits, and technology," http://universitaspertamina.ac.id/berita/detail/transisi-energi-pengertian-manfaat-danteknologinya 34 this conference, among others, resulted in a common understanding that each person has fundamental rights to freedom, equality, and adequate conditions of the environment for the sake of life dignity, and prosperity. see made adhitya anggriawan wisadha and grita anindarini widyaningsih, “human rights and the environmental protection: the naïveté in environmental culture,” udayana journal of law and culture 2, no.1 (2018): 74. 35 law no. 16 of 2016 concerning the ratification of the paris agreement to the united nations framework convention on climate change. http://universitaspertamina.ac.id/berita/detail/transisi-energi-pengertian-manfaat-dan-teknologinya http://universitaspertamina.ac.id/berita/detail/transisi-energi-pengertian-manfaat-dan-teknologinya towards alternative energy sources: is it time to switch to nyamplung? abdhy walid siagian and muhammad syammakh daffa alghazali 109 by 29% on its own and to 41% if there is international cooperation by 2030.36 besides derived from international agreements, indonesian law and regulations also indicate a commitment to shifting to ebt. the energy law mandates president to establish a national energy council or dewan energi nasional (den) to be assigned to designing and formulating a national energy policy, to be stipulated by the government with the approval of the house of representatives, and stipulating a general national energy plan.37 pp ken emphasizes the strategy to ensure sustainability, security of supply, efficient use of energy, and the realization of an optimal energy mix by 2050. this policy further explains the country's goals, one of which is to reduce the final energy intensity by 1% per year until 2025 and increase the share of ebt in the energy mix by at least 23% in 2025 and at least 31% in 2050.38 sustainable development is a crucial factor in achieving energy.39 indonesia is rich in renewable energy resources such as geothermal, biodiesel, solar, wind, and water. however, this potential is not yet optimal for meeting national energy needs. among various types of new and renewable energy sources, biofuels are energy sources that have the opportunity to substitute fossil fuels.40 the global and indonesia's national commitment to reducing ghg encourage the indonesian government to increase the role of ebt in maintaining national security and energy. table 1 shows indonesia's potential to utilize ebt in order to achieve national energy security. table 1. new and renewable energy41 energy type potential hydro power 94 gw geothermal 23.966 mwe bioenergy 32.654 mwe solar 1.385.988 mwe wind 60.650 mwe ocean energy 4.294 mwe *mwe (megawatts of electricity) 36 dhysti winyswara, “alasan pemerintah indonesia meratifikasi paris climate agreement tahun 2016." ejournal ilmu hubungan internasional 6, no. 4 (2018): 1419. 37 law no. 30 of 2007 concerning energy, art. 12 (2). 38 maria lauranti and eka afrina djamhari. equal energy transition in indonesia: challenges and opportunities (jakarta: friendrich ebert stiftung, 2017), 5. 39 hayat khan, itbar khan, and truong tien binh, “the heterogeneity of renewable energy consumption, carbon emission and financial development in the globe: a panel quantile regression approach,” scientific research 9, no. 5 (2020): 860. 40 karna wijaya, “the role of biofuel research as new and renewable energy for strengthening chemical literacy in indonesia,” proceedings of the yogyakarta state university chemistry national seminar (2017): 18. 41 directorate general of new renewable energy and energy conservation, 2020. udayana journal of law and culture vol. 7 no. 1, january 2023 110 data presented in table 1 explains the potential of hydropower, geothermal, bioenergy, solar wind, and ocean energy to reduce the use of fossil energy. even solar energy has a potential of 1.385.988 mwe, while bioenergy has a potential of 32,654 mwe. the utilization of ebt for electricity generation, both fossil and non-fossil, is 64.5 gw.42 the minimal use of ebt in the electricity sector is due to several factors, one of which is the high cost of production from ebt-based power plants. this makes competition more complex against fossil energy such as coal. biofuels are fuels derived from vegetable materials and/or produced from other organic materials, which are traded as other fuels.43 biofuel may be formed in biodiesel (b100), bioethanol (e100), and pure vegetable oil (o100).44 among them, biodiesel has attracted wide public attention. biodiesel is a product of fatty acid methyl ester (fame) or mono alkyl ester, which is produced from biological raw materials and other biomass through esterification.45 technically, biodiesel can be mixed with diesel to produce a higher cetane blend of biodiesel, and this can reduce dependence on imported diesel by 39%.46 the mixture of biodiesel and diesel has been successfully carried out with mandatory b-20, where the fuel used consists of a mixture of 20% biodiesel and 80% diesel.47 this is as explained in presidential instruction no. 1 of 2006 concerning the provision and utilization of biofuels as alternate fuel.48 this presidential instruction was further elaborated through the minister of energy and mineral resources regulation no. 12 of 2015 concerning mandatory use of biofuels which states that since 2016 the power generation sector has had to use b30 for pltd engines that use diesel fuel/diesel oil.49 biodiesel can be used as a substitute for diesel fuel if it meets the indonesian national standard or standar nasional indonesia (sni) 7182:2015 concerning the characteristics of biodiesel.50 biodiesel can be produced from palm oil, coconut, jatropha, kapok, and nyamplung.51 among 42 abdurrahman, s., pertiwi, m. and walujanto. indonesia energy outlook 2019 (jakarta: secretariat general of the national energy council, ltd. 2019), 6. 43 regulation of minister of energy and mineral resources no. 32 of 2008 concerning the supply, utilization, and trading of biofuels as alternate fuel, art. 1 (2). 44 ibid., art. 2 (2). 45 ibid., art. 1 (3). 46 wijaya, loc.cit. 47 arya hadi dharmawan, et.al., “development of bioenergy in indonesia: opportunities and challenges for the biodiesel industry policy,” cifor, no. 242 (2018): 242. 48 presidential instruction no. 1 of 2006 concerning the provision and utilization of biofuels as alternate fuel, art. 2. 49 minister of energy and mineral resources regulation no. 12 of 2015 concerning mandatory use of biofuels, art. 1. 50 edhi sarwono, nutfahryza erzha, and budi nining widarti, “biodiesel processing from nyamplung seeds (calophyllum inophyllum l) using koh catalyst,” proceedings of the vi national seminar on technology (2017): 34. 51 wijaya, op.cit., 5. towards alternative energy sources: is it time to switch to nyamplung? abdhy walid siagian and muhammad syammakh daffa alghazali 111 the sources mentioned above of biodiesel, nyamplung (calophyllum inophyllum l), also known as bintangur, has not been very much utilized. it is a mangrove tree species spread throughout big indonesian islands, i.e., sumatra, java, kalimantan, sulawesi, papua, and other small islands. 52 the oil yield in nyamplung has 40-70% percentage, which is higher than other plants, such as oil palm, with only 46-54%. it indicates that nyamplung has the potential to provide a substitute for a mixture of diesel fuel. 2.2. economic calculation of nyamplung mangrove as biofuel alternative energy in terms of state development, forests play a significant role as it can provide maximum benefits for the prosperity and welfare of the people. article 33 (3) of the 1945 constitution determines the primary position of the state to control the utilization of natural resources in order to provide maximum benefits for the prosperity of the people. one form of utilization of natural resources is the utilization of forests. forests in indonesia have provided significant benefits for various needs of the country, i.e., as the source of food, wood, and medicines, as well as the water storage, flood barrier, and soil reinforcement.53 natural resources in indonesia are diverse, including forest natural resources. forests in indonesia have diverse ecosystem forests, freshwater swamps, and mangrove forests.54 according to law no. 41 of 1999 concerning forestry, mangroves are included in the protected forest category.55 besides, law no. 26 of 2007 concerning spatial planning includes mangroves in other protected areas, which serves to protect coastal and marine life.56 mangrove ecosystems are aquatic ecosystems with many environmental services, functions, and specific ecological conditions.57 mangroves have high economic and ecological values but are vulnerable to damage if they are not utilized wisely. indonesia has the largest mangrove ecosystem in the world and has the highest biodiversity. with a coastline length of 95.181 52 see budi leksono, eritrina windyarini, and tri maria hasnah. “nyamplung, superior local genetic resources for biofuel development,” proceedings of the national seminar on utilization of local genetic resources in supporting the success of breeding programs (2016): 529. 53 sum mintarsih, “socio-economic relations of klanggon forest farmers in towards independence,” patravidya: historical and cultural research publishing series 12, no. 4 (2011): 664. 54 abdhy walid siagian, “mangrove forest protection through economic valuation of carbon services as an effort to suppress climate change,” https://rechtsvinding.bphn.go.id/?page=artikel&berita=638 55 law no. 41 of 1999 concerning forestry, art. 41(2). 56 law no. 26 of 2007 concerning spatial planning, art. 5 (2). 57 haruni krisnawati. mangrove forests for mitigation of climate change (jakarta: agency for research development and innovation ministry of environment and forestry, 2017), 56. https://rechtsvinding.bphn.go.id/?page=artikel&berita=638 https://rechtsvinding.bphn.go.id/?page=artikel&berita=638 udayana journal of law and culture vol. 7 no. 1, january 2023 112 km2,58 based on data from the ministry of environment in 2021, indonesia has mangrove forests with an area of 3,364,080 ha. this area fills about 24% of the area of mangrove forests in the world.59 from the area of mangroves in indonesia, it is known that an area of 1,671,140.75 ha is in good condition, while the remaining area of 1,817,999.93 ha is in damaged condition.60 if the data coverage is reduced, in asia, mangroves are found in indonesia, most of which are in the provinces of papua, east kalimantan, south kalimantan, riau, and south sumatra.61 as well as in southeast asia itself, around 75% percent of mangroves are found in indonesia.62 as for the wide distribution of mangroves in indonesia, one type of mangrove tree is calophyllum inophyllum l, which in indonesian is known as nyamplung. indications of the potential land area for sampling cultivation in indonesia alone are divided into as many as 480,000 ha spread across various provinces, from west to east indonesia.63 nyamplung is one of the 6 (six) priority types of non-timber forest products in indonesia which has a high yield as a raw material for biofuels, namely in the form of biokerosene as a substitute for kerosene, and biodiesel as a mixture of diesel with particular composition, which can 100% be used if the processing technology is proper.64 the yield itself is the ratio of the dry weight of the product produced to the weight of the raw material.65 the high percentage of oil yield contained in nyamplung shows its potential to be an alternative source of biofuels as a mixture of diesel, which supports programs to reduce the use of fossil-sourced energy. 58 ministry of environment and forestry, “indonesia hosts 2017 international mangrove conference,” http://ppid.menlhk.go.id/siaran_pers/browse/561 59 ministry of environment and forestry, “national mangrove rehabilitation management baseline,” https://www.menlhk.go.id/site/single_post/4476/peta-mangrovenasional-tahun-2021-baseline-pengelolaan-rehabilitation-mangrove-nasional 60 ministry of environment and forestry, “own 23% of the world's mangrove ecosystem, indonesia hosts 2017 international mangrove conference,” http://ppid.menlhk.go.id/siaran_pers/browse/561 61 hery purnobasuki, “utilization of mangrove forests as a carbon storage,” https://www.researchgate.net/publication/236846548_peuntungan_hutan_mangrove_as_ pendinding_karbon 62 ibid. 63 s. t bustomi, et.al, “nyamplung (calophyllum inophyllum l): a potential biofuel energy source. forestry research and development agency, ministry of forestry, jakarta, https://onesearch.id/record/ios3332.slims-1595/details 64 budi leksono, “nyamplung fruit (calophyllum inophyllum) for energy security, feed and medicines: opportunities and challenges,” national seminar on the role and policy strategy for utilization of non-timber forest products (hhbk) in increasing the utilization of forest areas (2014): 302. 65 h. yuniarifin, v.p. bintoro, and a. suwarastuti, “"pengaruh berbagai konsentrasi asam fosfat pada proses perendaman tulang sapi terhadap rendemen, kadar abu dan viskositas gelatin." journal indon trop anim agric 31, no. 1 (2006): 55. http://ppid.menlhk.go.id/siaran_pers/browse/561 https://www.menlhk.go.id/site/single_post/4476/peta-mangrove-nasional-tahun-2021-baseline-pengelolaan-rehabilitasi-mangrove-nasional https://www.menlhk.go.id/site/single_post/4476/peta-mangrove-nasional-tahun-2021-baseline-pengelolaan-rehabilitasi-mangrove-nasional http://ppid.menlhk.go.id/siaran_pers/browse/561 http://ppid.menlhk.go.id/siaran_pers/browse/561 https://www.researchgate.net/publication/236846548_peuntungan_hutan_mangrove_as_pendinding_karbon https://www.researchgate.net/publication/236846548_peuntungan_hutan_mangrove_as_pendinding_karbon https://www.researchgate.net/publication/236846548_peuntungan_hutan_mangrove_as_pendinding_karbon https://onesearch.id/record/ios3332.slims-1595/details https://onesearch.id/record/ios3332.slims-1595/details towards alternative energy sources: is it time to switch to nyamplung? abdhy walid siagian and muhammad syammakh daffa alghazali 113 table 2. comparison of nyamplung production with other biodiesel66 energy sources oil production (liters/ha) description corn 172 staple feed ingredients soybean 446 staple feed ingredients sunflower seed (canola) 1190 staple feed ingredients jatropha 1892 staple feed ingredients coconut 2689 staple feed ingredients palm oil 5950 staple feed ingredients microalgae 70% 136.900 difficult to process microalgae 30% 58.700 difficult to process nyamplung (calophyllum inophyllum l) 4.500.000 easy to process referring to table 2, the economic advantage of utilizing nyamplung is very obvious: it contains high yield and is easy to be processed. it can also be economically compared with oil from palm, which is the basic ingredient of common vegetable oils. palm oil itself is a food ingredient that is not only utilized in the energy sector. besides, compared to other oils, the processing of nyamplung oil is more effective. furthermore, based on data from the daily chair of biofuel, paulus tjakrawan, indonesia still depends on palm oil as a mixture of biofuels to make biofuels. this can be seen in the data showing that the need for palm oil for biodiesel this year is 8.4 million tonnes. this amount is only around 16% of the total national palm oil production in 2022, which is projected to reach 52 million tonnes.67 so far, indonesia still relies on palm oil or crude palm oil mixture biofuel,68 from west to east indonesia.69 the utilization of nyamplung as a source of biodiesel has promising advantages, by looking at the need for energy, the availability of land that can be used as a place for cultivation, and the high yield contained in nyamplung itself. with the assumption that 1 liter of biodiesel requires 2.5 kg of nyamplung seeds, 2,691,920 liters of biodiesel will be obtained.70 as indicated in pp ken that the target for 66 suyono, ninik umi hartanti, agus wibowo, and naruto, “biodiesel from nyamplung mangrove types (calophyllum inophyllum) as an alternative to fossil fuels,” biosphere 34, no. 3 (2017): 129. 67 wilda asmarini, “biodiesel triggers cooking oil controversy? check the consumption of palm oil,” https://www.cnbcindonesia.com/news/20220511164226-4338245/biodiesel-pemicu-kisruh-oil-goreng-cek-konsumsi-sawitnya 68 directorate general of new, renewable energy, and energy conservation, “understand the terms b20, b30, b100, bbn in bioenergy,” https://ebtke.esdm.go.id/post/2019/12/18/2433/pahami.term.b20.b30.b100.bbn.dalam. bioenergi 69 bustomi, et.al, loc. cit. 70 abdul muis hasibuan, “prospects and feasibility of nyamplung (calophyllum inophyllum linn) farming,” research institute for spices and various industrial plants (2019): 82. https://www.cnbcindonesia.com/news/20220511164226-4-338245/biodiesel-pemicu-kisruh-oil-goreng-cek-konsumsi-sawitnya https://www.cnbcindonesia.com/news/20220511164226-4-338245/biodiesel-pemicu-kisruh-oil-goreng-cek-konsumsi-sawitnya https://ebtke.esdm.go.id/post/2019/12/18/2433/pahami.term.b20.b30.b100.bbn.dalam.bioenergi https://ebtke.esdm.go.id/post/2019/12/18/2433/pahami.term.b20.b30.b100.bbn.dalam.bioenergi https://ebtke.esdm.go.id/post/2019/12/18/2433/pahami.term.b20.b30.b100.bbn.dalam.bioenergi udayana journal of law and culture vol. 7 no. 1, january 2023 114 biodiesel utilization in 2025 is 10.22 kiloliters, thus nyamplung can contribute to at least 25% of such target. if the policy is taken correctly, nyamplung may become a pillar in realizing the national energy policy. the use of nyamplung seeds for biofuel seems to be very exclusive as it will not be traded for food purposes, which differs from the case of cpo.71 besides that, the cultivation of this type of plant is easy. nyamplung has been planted as a windbreaker plant since half a century ago in coastal marginal areas and other degraded lands. the waste generated from the process of making nyamplung biofuel is quite a lot and has economic value, thus it can increase added value.72 a correct technique of processing nyamplung into biofuel seems to be zero waste.73 the oil from nyamplung offers excellent biodiesel. it is clean and carbon neutral with a yield of 95% under optimal conditions and meets the american society for testing and materials (astm) standards.74 the regulation of the minister of energy and mineral resources no. 12 of 2015 determines the phasing of the minimum mandatory utilization of biofuel as a mixture of fuel oil. this includes the obligation for power plants to use biodiesel (b100) by 30% and pure plant oil (o100) by 20% of the total demand in january 2025.75 nyamplung waste can also be used as a mixture of biosolar,76 a plant oil processed fuel specially formulated for diesel engines. biosolar offers some advantages: it is renewable energy that is environmentally friendly; it has a complete combustion process with a lower cost of production than diesel fuel; and it can help reduce government subsidies for financing electricity.77 despite all the advantages and potential of nyamplung as a source of biofuels, the utilization of nyamplung needs to be improved, particularly in processing it as an energy raw material. the challenge is significant considering the need for upstream-downstream integrative research between related fields of science that can support the efficiency and effectiveness of 71 ibid. 72 ibid. see also leksono, op.cit., 303. 73 budi leksono, eritrina windyarini, and tri maria hasnah. cultivating nyamplung calophyllum inophyllum l. for bioenergy and prospects for other utilization (bogor: ipb press, 2014), 41. 74 center for international forestry research, “energy from calophyllum inophyllum forest,” https://www.cifor.org/id/feature/energi-dari-hutan/calophyllum-inophyllumtamanu-tree/ 75 minister of energy and mineral resources regulation no. 12 of 2015 concerning the amendment of minister of energy and mineral resources regulation no. 32 of 2008 concerning supply, utilization and trading procedure of biofuel as alternate fuel, annex. 76 national geographic indonesia, “limbah tanaman nyamplung untuk bahan biosolar, 21 may 2015, https://nationalgeographic.grid.id/read/13298782/limbahtanaman-nyamplung-untuk-bahan-biosolar?page=all 77 billy j. camerling, ra de fretes, “selection of alternative fuel engines for pltd generators using the value engineering method,” journal of metrics 1, no. 1 (2021): 46. https://www.cifor.org/id/feature/energi-dari-hutan/calophyllum-inophyllum-tamanu-tree/ https://www.cifor.org/id/feature/energi-dari-hutan/calophyllum-inophyllum-tamanu-tree/ https://nationalgeographic.grid.id/read/13298782/limbah-tanaman-nyamplung-untuk-bahan-biosolar?page=all https://nationalgeographic.grid.id/read/13298782/limbah-tanaman-nyamplung-untuk-bahan-biosolar?page=all towards alternative energy sources: is it time to switch to nyamplung? abdhy walid siagian and muhammad syammakh daffa alghazali 115 industrial processing so that the resulting product can be implemented on a production scale.78 while further research is still needed towards the effective and efficient utilization of nyamplung, the current situation requires a pro-government policy to enable its use on a large scale. 3. conclusion the high demand for energy now and in the future has urged the indonesian government to seek new renewable energy sources. research on natural energy sources found several promising alternative energies. however, using new energy sources needs attention to some aspects, including economic efficiency. nyamplung is a plant found in mangrove forests in coastal areas that meet aspects of economic efficiency when used as an energy source. even compared to other biofuels, nyamplung has the advantage of being abundantly available and producing high energy with an easy processing process. indonesian national laws and regulations in the energy, environment and forestry sectors allow the utilization of nyamplung as an environmentally friendly energy source in indonesia. the use of nyamplung is also in line with the direction of the national energy policy, which has a vision for a sustainable environment to support the fulfillment of indonesia's international commitments to reduce carbon emissions. unfortunately, until now, no visible policy instrument supports the use of nyamplung on a large scale. it, therefore, certainly needs to be a consideration for the government in the future. bibliography book abdurrahman, s., mustika pertiwi, and walujanto. indonesia energy outlook 2019. jakarta: secretariat general of the national energy council, ltd, 2019. goldthau, andreas and jan martin witte. global energy governance the new rules of the game. 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https://databoks.katadata.co.id/datapublish/2022/03/31/ini-jenis-pembangkit-listrik-pln-paling-banyak-pada-2021#:~:text=pembangkit%20listrik%20tenaga%20diesel%20(pltd)%20ada%205.258%20unit,bayu%20(pltb)%20ada%20150%20unit https://databoks.katadata.co.id/datapublish/2022/03/31/ini-jenis-pembangkit-listrik-pln-paling-banyak-pada-2021#:~:text=pembangkit%20listrik%20tenaga%20diesel%20(pltd)%20ada%205.258%20unit,bayu%20(pltb)%20ada%20150%20unit https://databoks.katadata.co.id/datapublish/2022/03/31/ini-jenis-pembangkit-listrik-pln-paling-banyak-pada-2021#:~:text=pembangkit%20listrik%20tenaga%20diesel%20(pltd)%20ada%205.258%20unit,bayu%20(pltb)%20ada%20150%20unit https://nasional.kompas.com/read/2022/04/27/03000051/jumlah-penduduk-indonesia-2022 https://nasional.kompas.com/read/2022/04/27/03000051/jumlah-penduduk-indonesia-2022 https://www.menlhk.go.id/site/single_post/4476/peta-mangrove-nasional-tahun-2021-baseline-pengelolaan-rehabilitation-mangrove-nasional 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%20indonesia%20to%2073,736,(gw)%20to%november 20%202021 https://databoks.katadata.co.id/datapublish/2022/01/26/kapasitas-pembangkitan-listrik-indonesia-reach-7374-gw-pada-2021-pltu-mendomin#:~:text=pembangkitan%20listrik %20indonesia%20to%2073,736,(gw)%20to%november 20%202021 https://databoks.katadata.co.id/datapublish/2022/01/26/kapasitas-pembangkitan-listrik-indonesia-reach-7374-gw-pada-2021-pltu-mendomin#:~:text=pembangkitan%20listrik %20indonesia%20to%2073,736,(gw)%20to%november 20%202021 https://www.researchgate.net/publication/236846548_peuntungan_hutan_mangrove_as_pendinding_karbon https://www.researchgate.net/publication/236846548_peuntungan_hutan_mangrove_as_pendinding_karbon https://www.researchgate.net/publication/236846548_peuntungan_hutan_mangrove_as_pendinding_karbon https://rechtsvinding.bphn.go.id/?page=artikel&berita=638 https://rechtsvinding.bphn.go.id/?page=artikel&berita=638 https://plato.stanford.edu/entries/legal-econanalysis/ udayana journal of law and culture vol. 7 no. 1, january 2023 120 the constitutional court of the republic of indonesia. “the 1945 constitution of the republic of indonesia and law of the republic of indonesia concerning the constitutional court.” https://www.mkri.id/public/content/infoumum/regulation/pdf/uud 45%20eng.pdf winanti, poppy. “indonesian energy diplomacy.” figshare (2020): 1-20, https://doi.org/10.6084/m9.figshare.12030381.v2 https://www.mkri.id/public/content/infoumum/regulation/pdf/uud45%20eng.pdf https://www.mkri.id/public/content/infoumum/regulation/pdf/uud45%20eng.pdf https://doi.org/10.6084/m9.figshare.12030381.v2 https://doi.org/10.6084/m9.figshare.12030381.v2 36 | udayana journal of law and culture vol. 01 no.1, january 2017 31 incorporating local wisdom into the consumer protection legal regime: a comparison between indonesia and australia i gusti ngurah parikesit widiatedja* ph.d student at melbourne university school of law i. introduction according to duncan kennedy there are three conceptual periods of institutional and legal theory development: classical legal thought, the social, and the current globalization that he described as an unsynthesized coexistence of transformed elements from both first and second thought.1 according to keleman, the globalization has spread common law style legal thinking around the world that has been propelled by economic liberalization and political fragmentation.2 these two factors have resulted in the transformation of modes of governance from informal, opaque, and cooperative to be formal, transparent, and adversarial ones.3 according to kagan, this outcome typically reflected the adversarial legalism that consists of three essential elements, namely policy making, policy implementation, and dispute resolution4. consumer protection is one of the most developed areas of law and has progressively adopted the rule of professional law,5 and the spirit of adversarial * corresponding: iwdiatedja@student.unimelb.edu.au 1 duncan kennedy, three globalizations of law & legal thought: 1850-2000, in trubeck, david and santos, alvaro, eds., the new law & economic development movement: a critical appraisal (new york: cambridge university press, 2006), 127. 2 daniel r kelemen and eric c. sibbitt, “the globalization of american law,” journal of international organization, vol. 58 (2004): 103. 3 ibid. 105. 4 robert a. kagan, adversarial legalism the american way of law (boston: harvard university press, 2003), 9. 5 ugo mattei, “three patterns of law: taxonomy and the change in the world’s legal systems,” american journal of comparative law 45, no. 5 (1997): 12-13. abstract globalization has affected legal services and converged legal systems, especially in consumer protection in indonesia and australia. this process has resulted to a more formal, transparent, and adversarial laws and regulations that typically reflect to the common law system. then, the incorporation of local wisdom encourages significantly for the receptiveness of this globalization and convergence process both in indonesia and australia. this paper will show and analyze the extent to which globalization has affectedconsumer protection in indonesia and australia by dividing the impact from the result of economic liberalization and political fragmentation. it will then show how the incorporation of local wisdom canaccelerate the globalization of legal services and convergence of legal systems on consumer protection in indonesia and australia keywords: local wisdom, consumer protection, law, indonesia, australia. udayana journal of law and culture vol. 01 no. 1, january 2017, pp. 31-45 e-issn 2549-0680 | 32 legalism as an inescapable impact from globalization and convergence of law. adversarial legalism is a main distinctive feature of the united states’ (us) and the united kingdom (uk) legal systems. formal legal contestation and litigant activism are the most crucial characteristics of this system, distinguishing them from other legal systems around the world.6 one of the most inseparable parts from adversarial legalism is adversarial civil procedure. under this mechanism, two parties, both plaintiff and defendant, play a dominant role. as justice seekers, they contend ardently in finding miscellaneous legal facts, rights, and duties by presenting evidence and arguments. in this scenario, a judge posits himself as a passive and neutral party acting as a referee who assures that the trial process complies with procedural requirements. as an active nation in international relations, indonesia has been affected substantially by the globalization of legal services and convergence of legal systems, especially in consumer protection. in australia, this process involved the australian and new zealand economies that are becoming increasingly integrated. this has arisen in the context of shared legal and political heritages, geographical proximity and similarity of policy measures adopted by governments in both countries.7 one important similarity on the convergence of legal systems is the incorporation of what has been regarded as local wisdom. this paper will analyze and compare the impact of globalization on consumer protection in indonesia and australia by dividing the impact from the result of economic liberalization and political fragmentation. then, each elucidation will encompass the level of policy making and policy implementation. lastly, this paper will also analyze and compare how the incorporation of local wisdom can avail the receptiveness of the globalization of legal services and convergence of legal systems on consumer protection in indonesia and australia. ii. analysis 2.1. economic liberalization it is unmistakable that the increase of globalization has been encouraged by economic liberalization. this ensued when many nations committed to the bilateral and multilateral free trade agreements, gradually reduced financial regulations, opened their markets to foreign investment or service providers and eliminated other cumbersome procedures in business transactions.8 the 6 ibid. 7 arlen duke, “representations as to the future under the proposed australian consumer law”melbourne university law review 33, no. 2 (2009): 41. 8 see further explanation at i gusti ngurah parikesit widiatedja, liberalisasi jasa dan masa depan pariwisata kita (liberalization of services and our tourism future), (denpasar: udayana university press, 2010), 36-37. incorporating local wisdom into the consumer protection legal regime: a comparison between indonesia and australia i gusti ngurah parikesit widiatedja 38 | udayana journal of law and culture vol. 01 no.1, january 2017 33 arguments for economic liberalization also include larger efficiency and effectiveness thatdiminish poverty and unemployment and increase the living standards of people, especially in the least developed countries.9 economic liberalization was formally embodied through comprehensive negotiations of trade in the uruguay round. at that unprecedented moment, 123 nations agreed to establish the world trade organization (wto) as the successor of the general agreement on tariffs and trade (gatt).10 it would be a stepping stone to extend the economic liberalization because of its substantial coverage encompassing investment, intellectual property rights and services as a part of tradable activities. indonesia bound itself through promulgating law no. 7 of 1994 regarding the ratification of agreement of establishing the wto. the increasing performance of economic development was an essential consideration in ratifying its agreement that progressively allowed the operation of foreign providers.11 as an affirmative action, government has enacted many laws that have adopted progressive economic liberalization.12 in consumer protection, the government of indonesia promulgated law no. 8 of 1999 that comprehensively regulated the protection for consumers in indonesia. the objective of this law can be categorized from the government, consumers, and entrepreneurs’ perspective. from the government perspective, this law intended to devise a consumer protection system containing legal safety and transparent information.13 concerning the consumer perspective, this law expected to improve the ability of consumers to select, determine and claim their rights as consumers.14 from the entrepreneurs perspective, this law aimed to strengthen the quality of the goods and services by forming an honest and responsible behavior in conducting business.15 in terms of policy making and policy implementation,the law of consumer protection represents a transparent principle that is typical to common law systems 9 see further in the preamble of agreement of establishing the wto and the preamble of the gats 10 peter van den bossche, the law and policy of the world trade organization, (new york: cambridge university press, 2010), 18. 11 it was expressly stated on consideration of law no. 7 of 1994 concerning the ratification of agreement on establishing the world trade organization. 12 for example, law no. 10 of 1998 concerning banking systems, law no. 8 0f 1999 concerning consumer protection, law no. 36 of 1999 concerning telecommunication, law no. 30 of 1999 concerning arbitration council, law no. 30 0f 2000 concerning trade secret, law no. 32 of 2000 concerning electronic circuit design, law no. 14 of 2001 concerning patent, law no.15 of 2001 concerning trademark, law no.19 of 2002 concerning copyright, law no. 25 of 2007 concerning investment, law no. 40 of 2007 concerning limited liability company, law no. 11 of 2008 concerning electronic transaction, and law no.10 of 2009 concerning tourism. 13 law no. 8 of 1999, art. 3. 14 ibid. 15 ibid. | 34 and legal practice.16 it is because this lawprovides detailed and elaborated rules and regulatory procedures as well as extensive disclosure requirements.17 specifically, this law required all entrepreneurs both foreign and domestic to produce and guarantee the goods and services based on the prevailing quality standard provisions.18 then, there are several administrative requirements for entrepreneurs including all products must be made to the indonesian national standard which is the only applicable standard in indonesia;19 they must have a manual book and after sale warranty card in indonesian language;20 they must pass technical rules and procedures for supervision of goods and services;21 and they must have labels on goods.22 equally important, this law also indicates the role of the government to protect self-realization of individual rights that were derived from classical legal thought 23and the concept of rule of professional law.24 there are several rights for consumers. firstly, the right to safety, that means the right to be protected against the marketing of goods and services, which are hazardous to life and property.25 secondly, the right to choose, that means the right to be assured, wherever possible, of access to a variety of goods and services with competitive prices.26 thirdly, the right to be informed about the quality, quantity, potency, standard, and price of goods and services.27 finally, the right to redress, that means consumers must obtain compensation, redress or substitution if the products received are not in accordance with the agreement or not received as requested.28 furthermore, this law has elaborately defined prohibited actions for the entrepreneurs while producing and trading goods and services. they have to follow these requirements including the following: meet or accord with the required standard and provisions of the law; accord with the net weight net volume, and the total amount as stated on the label of the said goods; accord with the actual size, measurement and total amount; accord with the condition, guarantee, specialty or efficacy as 16 keleman and sibbit, op.cit., 106. 17 ibid. 109. 18 law no. 8 of 1999, art. 6. 19 governmental regulation no. 102 of 2000 concerning national standardization. 20 minister of trade decree no. 19/m-dag/per/5/2009 concerning registration manual and card guarantee/warranty for sale in bahasa for telematica and electronic products. 21 minister of trade decree no. 20/m-dag/per/5/2009 concerning rules and procedures for goods and/or services control. 22 minister of trade decree no. 22/m-dag/per/5/2010 concerning amendment of minister of trade decree no. 62/m-dag/per/12/2009 concerning responsibility of label inclusion in goods. 23 kennedy, op.cit., 26 24 mattei, three patterns of law, 14. 25 law no. 8 of 1999, art. 4(a). 26 ibid. art.4(b). 27 ibid. art.4(c). 28 ibid. art.4(h). incorporating local wisdom into the consumer protection legal regime: a comparison between indonesia and australia i gusti ngurah parikesit widiatedja 40 | udayana journal of law and culture vol. 01 no.1, january 2017 35 stated on the label or information of the said goods and/or services; accord with the promise as stated on the label information, advertisement or sales promotion of the goods and/or services; mention expiry dates or best before for the use of the goods and/or services; include information and/or directions on the use of the goods in indonesian language to conform with the prevailing provisions of the law. in addition, entrepreneurs are prohibited from trading damaged, defective or used and tainted goods without providing complete and correct information.29 these efforts in defining consumer rights and prohibited actions are effective to educate and empower consumers to be less reluctant litigants30 for asserting their rights. furthermore, they also believe they will gain incentive from using this law.31 in this context, they can receive better quality and transparent information of goods and services after asserting their rights as consumers. for instance, from may to december 2013, national consumer protection agency has received 1,700 complaints from consumers because they felt dissatisfied related products purchased. the complaints related to banking, consumer finance, housing, transportation, insurance, electricity, telecommunications, water, and service delivery.32 besides, the financial services authority (ojk) received up to 1,078 complaints from january to june 2014 due to the lack of financial services. the public’s complaints usually mentioned violations by financial authorities over financial services, disputes between customers and financial services and complaints of which the ojk had no authority to settle. in general, from 2013 to june 2014, the ojk received 15,000 service requests, which comprised 1,967 complaints, 1,230 information inquiries and the rest being questions. around 47 percent of complaints concern problems with banks, 43 percent involve non-bank issues and 3.1 percent concern the stock market.33 with respect to dispute resolution, the consumer protection law and regulations express the empowerment of private actors to assert legal rights. it is because they provide extensive causes of action or remedies as a part of product liability procedures that typically associate with the american legal style.34 after receiving complaints from consumers, the government will identify meticulously defective products, and then punish manufacturers and sellers. for example, when a dentist 29 ibid, arts. 8 (1) and (2). 30 this is inspired by john owen haley, “the myth of the reluctant litigant,” journal of japanese studies 4 (2), no. 359 (summer 1978). 31 daniel berkowitz, katharina pistor, and jean-francois richard, “the transplant effect,” american journal of comparative law 51 (2003): 163. 32 wji nurhayat, dalam 6 bulan ada 1700 konsumen mengadu ke bpkn (in six months, there are 1700 consumers who complaint to bpkn), des.12.2013, http://finance.detik.com/read/2013/12/11/133 841/2438818/4/dalam-6-bulan-ada-1700-konsumen-ngadu-ke-bpkn?9911012 33 1078 complaints to ojk in first half of 2014, the jakarta post, june 16,2014, http://www.thejakartapost.com/news/2014/06/16/1078-complaints-ojk-first-half-2014.html 34 keleman and sibbit, op.cit., 107. | 36 bought a dental unit produced by a european company, there were some specifications that did not match as agreed. next, the ministry of trade took an investigation by requesting information from both the representative and consumer. however, due to insufficient data, the ministry of trade directly sent inquiries to the manufacturer. next, the manufacturer appointed its representative for southeast asia to solve this complaint. finally, the manufacturer agreed to provide compensation (refund) for consumer.35 besides, national agency of food and drug control recalled milk products from china because of tainted melamine in 2010.36 meanwhile, the national police have called on the public to join the global fight against counterfeit goods to deter the growing circulation of counterfeit goods in indonesia. in 2013, the national police investigated 589 cases of intellectual property rights violations. specifically, some counterfeited electronic and automotive brands are canon, hewlett-packard, microsoft, honda and toyota. fashion labels commonly ripped off include louis vuitton, chanel and gucci.37 equally important, consumer protection law also provides a class action mechanism for private actors to assert their rights. it states that the main prerequisite for a class action lawsuit is a group of consumers with the same interest.38 accordingly, the supreme court of indonesia enacted the procedure on filing a class action lawsuit in 2002.39 this regulation is a comprehensive guidance for courts all around indonesia in cases of class action. for example, one dispute that went to court was a case involving a price increase of liquefied petroleum gas (lpg) between consumers represented by several non-governmental organization and producer of lpg, pertamina, a state owned enterprise.40 the basis for the lawsuit was the pertamina’s arbitrary decision to increase 40% of the price of lpg without any prior notice.41 the court in its decision ruled that the pertamina has committed a tortious conduct by increasing the price of lpg arbitrarily without any prior notice. furthermore, the court declared the decision to increase the price was invalid, and then instructed pertamina to annul the decision.42 35 eric nababan, major consumer protection law enforcement and consumer issues in indonesia. august 27, 2012, http://aseanconsumer.org/misc/downloads/usftc-s2-indonesia-eric-nababan.pdf 36 national agency of food and drug control,“indonesia food recall system,” may 6, 2010, http:// fscf-ptin.apec.org/docs/events/food-safety-recall-system-development-and-strengthening/appendix%20 19.pdf 37 yuliasri perdani, police call concerted effort stop counterfeiting, the jakarta post, june 6, 2014, http://www.thejakartapost.com/news/2014/06/06/police-call-concerted-effort-stop-counterfeiting.html 38 law no. 8 of 1999, art. 46. 39 the supreme court regulation (perma) no. 1 of 2002 concerning class action. 40 civil case no. 550/pdt.g/2000/pn.jkt.pst. 41 ibid. 42 ibid. incorporating local wisdom into the consumer protection legal regime: a comparison between indonesia and australia i gusti ngurah parikesit widiatedja 42 | udayana journal of law and culture vol. 01 no.1, january 2017 37 2.2. political fragmentation historically, indonesia has a notorious record of governance and bureaucratic legalism43 that tended to produce repressive laws and regulations.44 at that period, the centralized legal system boosted an oligarchic economy in which political and business elites collaborated45 to exploit economic resources in indonesia in order to establish and preserve political stability and strong economic growth. moreover, judicial control was very weak and held the status of a non-independent legal institution because the department of justice was an executive power.46 regarding consumer protection, the legal basis for consumer tort was regulated vaguely under article 1365 of indonesian civil code. furthermore, most indonesian consumers had a poor awareness of their rights, and rarely disputed defective products. if they bought defective products, they usually just accepted them. some may return the defective goods to the store, but they were very reluctant to bring the dispute to the formal agency. moreover, consumers had a very limited option to consume products since products were mostly produced by entrepreneurs who had a close relationship with political power. as a part of the reformation process, the laws and regulations concerning consumer protection have adopted progressively a political fragmentation since 1999. in terms of policy making and policy implementation, the consumer protection law has established several agencies that have fragmented authority. hence, these figures reflect adversarial legalism that has resulted in more complex agencies that were supported by detailed guidelines and procedures in governing consumer protection in indonesia. specifically, the national protection consumer agency has a main objective to receive complaints from the consumer and to suggest technical and administrative policies to the government.47 besides, the non-governmental consumer protection foundation has responsibilities to advocate consumers’ rights, and to represent consumers in their cases.48 furthermore, consumer dispute settlement agency has a main objective to resolve a dispute outside the court.49 for administrative guidelines and procedures, ministry of trade verified the requirement of indonesia mandatory standard,50 and 43 kagan, adversarial legalism the american way of law, 10. 44 refers to opponent of responsive law from philipe nonet and philip selznik, law and society in transition: toward responsive law, (new york: harper and row, 1978), 36. 45 keleman and sibbit, op.cit., 132. 46 erman rajagukguk, “the prospect of legal institutions reform in indonesia,” http://www.ermanhukum.com/makalah%20er%20pdf/the%20prospect%20of%20legal%20institutions%20reform%20 in%20indonesia.pdf 47 law no. 8 of 1999, art. 34. 48 ibid, art 44. 49 ibid. art 49. 50 governmental regulation no. 102 of 2000 concerning national standardization. | 38 national agency of drugs and food control verified food products, cosmetics, medicine, and medical devices.51 in 2010, ministry of trade established a directorate general for standardization and consumer protection in a bid to enhance its efforts to protect consumers from faulty and non-standardized products.52 as a reflection of fragmented authority and how the legal elites try to participate in devising national strategies to direct economic and social change53 in consumer protection, some departments have shown their active role to assure the protection and safety of consumers by making responsive regulations. for example, the ministry of transportation issued a regulation on air carrier liability. this regulation, which adopted the montreal convention of 1999, stated that every commercial air transport in case of delay shall provide compensation for the amount of 300.000,00 rupiah (30 us$) if they delay the flight more than 4 hours.54 for consumers in the tourism sector, the ministry of tourism issued a regulation regarding management systems for hotel safety. this regulation stipulated all hotel owners to establish integrated safety systems to protect all consumers when they stayed in hotels.55 in financial services sector, financial services authority (ojk) has enacted a regulation to provide stronger protection for consumers of financial services, which not only includes banking and insurance but also those related to investment activities. every financial institution must provide transparency, fairness, confidentiality, reliability, and consumer data safety, as well as a simple, fast and affordable procedure for complaint and dispute resolution. equally important, the directors of financial service providers are responsible for complying with this regulation, and are obliged to have a reporting and monitoring system to follow up on consumer complaints within a year after this regulation entered into force.56 with respect to dispute resolution, the existence of consumer dispute settlement body for resolving all kinds of consumer dispute in indonesia has resulted in more formal procedures for resolving consumer disputes. it also provides more powerful legal sanctions.57 moreover, this fact also reflects how judges play a dominant role that can be assumed as a hero figure of the third globalization.58 for example, 51 governmental regulation no. 69 of 1999 concerning food labeling and advertising. 52 mustaqim adamrah, govt to launch new body on consumer protection, the jakarta post, february,17,2010,http://www.thejakartapost.com/news/2010/02/17/govt-launch-new-body-consumerprotection.html 53 kennedy, op.cit., 24. 54 ministry of transportation decree no: pm 77 tahun 2011 concerning liability of air force carrier. 55 minister of tourism and creative economy decree no. pm.106 / pw.006 / mpek / 2011 of 2011 concerning hotel security management system. 56 first ojk regulation increases customer protection, the jakarta post, july 31,2013, http://www. thejakartapost.com/news/2013/07/31/first-ojk-regulation-increases-customer-protection.html 57 kagan, op.cit.,18. 58 kennedy, op.cit., 65. incorporating local wisdom into the consumer protection legal regime: a comparison between indonesia and australia i gusti ngurah parikesit widiatedja 44 | udayana journal of law and culture vol. 01 no.1, january 2017 39 in the case law that involved nissan motor, ludmilla arief as a customer accused nissan of lying about fuel efficiency of the nissan march. she complained to nissan after buying and using nissan march that she was only getting 8 to 12 kilometers per liter of fuel from the car. however, nissan’s brochure said it could manage up to 21.8 km/l.59 as a result, consumer dispute settlement body decided that nissan motor had to buy back a car from its customer.60 interestingly, after a long-winded process from jakarta district court and jakarta appellate court, the supreme court of indonesia finally affirmed the decision from this body.61 for australia, competition and consumer protection used to be regulated under the trade practices act 1974 and the australian securities and investments commission act 2001 as well as the corporations act 2001.62 the australian competition and consumer commission is responsible for administration and enforcement of the trade practices act.63 the australian securities and investments commission also has enforced consumer protection inrelation to financial services.64 the australian consumer law has now replaced the trade practices act and covers a suite of enforcement powers, penalties and remedies for breaches of consumer laws.65 the australian consumer law also introduces a new set of enforcement powers, incuding the following:66 civil pecuniary penalties;• infringement notices allowing for minor infringements to be dealt with • through the payment of small sums; disqualification orders, banning individuals from managing corporations or • from engaging in specific forms of conduct; public warning notices, allowing for consumer agencies to warn the public • 59 rangga prakoso, indonesian court orders nissan to buy back gas-guzzling nissan march, the jakarta globe, april 17, 2012,http://www.thejakartaglobe.com/archive/indonesian-court-orders-nissanto-buy-back-gas-guzzling-nissan-march/ 60 consumer dispute settlement body decision no. 099/pts.a/bpsk-dki/ii/2012. 61 supreme court of indonesia decision no. 659k/pdt.sus/2013. 62 arlen duke, “representations as to the future under the proposed australian consumer law,”melbourne university law review 33, no. 2 (2009): 41. 63 ibid. 64 ibid. 65 http://consumerlaw.gov.au/consumer-policy-in-australia/resources/an-introduction-to-the-australian-consumer-law/ 66 ibid. | 40 about specific traders; substantiation notices, allowing consumer agencies to seek substantiation • of claims made in trade or commerce; and consumer redress orders, allowing non-party consumers to obtain redress • for breaches of the law. 2.3. the incorporation of local wisdom it is undeniable that globalization has resulted in a new concept, idea, and perspective of law that can change social behavior of society. to adopt globalization of law and legal thought effectively, the process of legal transplantation and reception should incorporate local wisdom67 or an indigenous element.68 the transplant process will work better if it is compatible with pre-existing social norms or the living law of society.69 then, it will encourage a better fit and generate sustained demand for further application, enforcement and development.70 the constitution of indonesia expressly stated that the government recognizes and respects all of the traditional communities along with their traditional customary rights as long as they are exist, and are in accordance with the social development and the principles of the unitary state of the republic of indonesia.71 in consumer protection, the incorporation of local wisdom can be identified from the provision that requires all entrepreneurs both foreign and local who produce and trade goods and services must follow halal production processes that are proven by a halal label.72 basically, the halal term refers to things or actions permitted by islamic law without imposing a punishment on the doer. it is usually used to describe food and drink that a muslim is permitted to consume.73 for example, food or drink is halal if it does not contain pork or alcohol, and all forms of intoxicating and hazardous drinks.74 as a result, foreign entrepreneurs who wish to access the indonesia’s market will be pressured to adopt this provision.75 furthermore, consumer protection law requires all entrepreneurs to include information or directions on the use of the goods in indonesian language to conform with the prevailing provi67 ibid, 63. 68 kennedy, op.cit., 23. 69 berkowitz, op.cit., 168. 70 ibid, 165. 71 the 1945 constitution of the republic of indonesia, art. 18b. 72 law no. 8 of 1999, art. 8(1)(h) 73 ibid. 74 ibid. 75 keleman and sibbit, “the globalization of american law,” 107. incorporating local wisdom into the consumer protection legal regime: a comparison between indonesia and australia i gusti ngurah parikesit widiatedja 46 | udayana journal of law and culture vol. 01 no.1, january 2017 41 sions of the law.76 in bali, entrepreneurs who want to develop a tourism destination should consider local wisdom based on balinese belief, cultural tradition, and sustainable environment.77 further more, they should give opportunities for local businesses who mainly produce handicrafts and agricultural products to exhibit their products in hotels and restaurants that are owned by those entrepreneurs.78 in addition, bali’s government requires the development of commercial buildings to adopt bali’s traditional architecture.79 for australia, in 1999, the aboriginal and torres strait islander commission (atsic) has established a national authenticity label, helping to protect indigenous artists and their art work from forgery and piracy.80 one of the main purposes behind the scheme was to promote products made by indigenous people, and increase fair and equitable returns to indigenous producers.81 this system was created to overcome some of the problems associated with copyright law and consumer protection law where it can threaten the creativity of indigenous peoples although it still focused on regulating art and craft products for the tourist market.82 australia also consistently promoted australian local products through an ‘australian made’ campaign.83 this campaign revealed that there is a direct correlation between consumer purchasing behavior and employment, local economic development and prosperity. when australian’s buy australian-made and grown products, they can be sure they are keeping their family members and friends employed.84 iii. conclusion it is unmistakable that the globalization of legal services and convergence of legal systems significantly affects the law and regulations concerning consumer protection in indonesia and australia. the economic liberalization and political fragmentation are the salient factors to create more formal, transparent, and adversarial law and regulations that typically reflect to the common law system. the incorporation of local wisdom encourages receptiveness of globalization and convergence of 76 law no. 8 of 1999, art. 8(1)(j) 77 provincial regulation of bali no. 2 of 2012 concerning bali cultural tourism, art.11. 78 ibid. 79 ibid., art.7. 80 matthew rimmer,“australian icons: authenticity marks and identity politics,”indigenous law journal 3, no. 1 (2004): 139, 141. 81 ibid. 82 ibid. 83 http://www.australianmade.com.au/why-buy-australian-made/ 84 ibid. | 42 consumer protection in indonesia and australia. bibliography books kagan, robert a., adversarial legalism the american way of law, boston: harvard university press, 2003. nonet, philipe and philip selznik, eds. law and society in transition: toward responsive law, new york: harper and row, 1978. trubeck, david and alvaro santos, eds. the new law & economic development movement: a critical appraisal, new york: cambridge university press, 2006. van den bossche, peter. the law and policy of the world trade organization, new york: cambridge university press, 2010. widiatedja, i gusti ngurah parikesit. liberalisasi jasa dan masa depan pariwisata kita (liberalization of services and our tourism future), denpasar: udayana university press, 2010. journals berkowitz, daniel, katharina pistor, and jean-francois richard. “the transplant effect.” american journal of comparative law, vol.51 (2003). duke, arlen. “representations as to the future under the proposed australian consumer law.” melbourne university law review 33, no. 2 (2009). haley, john owen. “the myth of the reluctant litigant.” journal of japanese studies 4 (2), no. 359 (1978). kelemen, daniel r and eric c. sibbit. “the globalization of american law.” journal of international organization, vol. 58 (2004). mattei,ugo. “three patterns of law: taxonomy and the change in the world’s legal systems.” american journal of comparative law 45, no. 5 (1997). rimmer, matthew. “australian icons: authenticity marks and identity politics.” indigenous law journal 3, no. 1 (2004). incorporating local wisdom into the consumer protection legal regime: a comparison between indonesia and australia i gusti ngurah parikesit widiatedja 48 | udayana journal of law and culture vol. 01 no.1, january 2017 43 legal documents indonesia. the 1945 constitution of the republic of indonesia ________. indonesian civil code ________. law no. 7 of 1994 concerning the ratification of agreement on establishing the world trade organization ________. law no.10 of 1998 concerning banking systems ________. law no. 8 of 1999 concerning consumer protection ________. law no. 36 of 1999 concerning telecommunication ________. law no. 30 of 1999 concerning arbitration council ________. law no. 30 of 2000 concerning trade secret ________. law no. 32 of 2000 concerning electronic circuit design ________. law no. 14 of 2001 concerning patent ________. law no. 15 of 2001 concerning trademark ________. law no. 19 of 2002 concerning copyright ________. law no. 25 of 2007 concerning investment ________. law no. 40 of 2007 concerning limited liability company ________. law no. 11 of 2008 concerning electronic transaction ________. law no. 10 of 2009 concerning tourism ________. governmental regulation no. 69 of 1999 concerning food labeling and advertising ________. governmental regulation no. 102 of 2000 concerning national standardization ________. minister of trade decree no. 19/m-dag/per/5/2009 concerning registration manual and card guarantee/warranty for sale in bahasa for telematica and electronic products ________. minister of trade decree no. 20/m-dag/per/5/2009 concerning rules and procedures for goods and/or services control ________. minister of trade decree no. 22/m-dag/per/5/2010 concerning amendment of minister of trade decree no. 62/m-dag/per/12/2009 concerning responsibility of label inclusion in goods | 44 _________. minister of tourism and creative economy decree no. pm.106 / pw.006 / mpek / 2011 of 2011 concerning hotel security management system _________. ministry of transportation decree no: pm 77 tahun 2011 concerning liability of air force carrier _________. provincial regulation of bali no. 2 of 2012 concerning bali cultural tourism _________. the supreme court regulation (perma) no. 1 of 2002 concerning class action australia. trade practices act 1974 _________. the australian securities and investments commission act 2001 _________. the corporations act 2001 case law civil case number 550/pdt.g/2000/pn.jkt.pst consumer dispute settlement body decision no. 099/pts.a/bpsk-dki/ii/2012 supreme court of indonesia decision no. 659k/pdt.sus/2013 internet nababan, eric. “major consumer protection law enforcement and consumer issues in indonesia.” http://aseanconsumer.org/misc/downloads/usftc-s2indonesia-eric-nababan.pdf rajagukguk, erman. “the prospect of legal institutions reform in indonesia.” http://www.ermanhukum.com/makalah%20er%20pdf/the%20prospect%20of%20legal%20institutions%20reform%20in%20indonesia.pdf food and agriculture organization of the united nations. “general gudelines to use the term “halal.” http://www.fao.org/docrep/005/y2770e/y2770e08.htm national agency of food and drug control. “indonesia food recall system.” http:// fscf-ptin.apec.org/docs/events/food-safety-recall-system-developmentand-strengthening/appendix%2019.pdf prakoso, rangga. “indonesian court orders nissan to buy back gas-guzzling nissan march, the jakarta globe.” http://www.thejakartaglobe.com/archive/ indonesian-court-orders-nissan-to-buy-back-gas-guzzling-nissan-march/ incorporating local wisdom into the consumer protection legal regime: a comparison between indonesia and australia i gusti ngurah parikesit widiatedja 50 | udayana journal of law and culture vol. 01 no.1, january 2017 45 nurhayat, wji. “dalam 6 bulan ada 1700 konsumen mengadu ke bpkn (in six months, there are 1700 consumers who complaint to bpkn).” http://finance.detik.com/read/2013/12/11/133841/2438818/4/dalam-6-bulanada-1700-konsumen-ngadu-ke-bpkn?9911012 the jakarta post, “first ojk regulation increases customer protection.” http:// www.thejakartapost.com/news/2013/07/31/first-ojk-regulation-increases-customer-protection.html _______, “1078 complaints to ojk in first half of 2014.” http://www.thejakartapost. com/news/2014/06/16/1078-complaints-ojk-first-half-2014.html vol. 4, no. 1, january 2020, pp. 104-118 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3398 e-issn 2549-0680 104 what indonesia should learn from china's social credit system?: measuring government authorities and citizen’s privacy rights cokorda istri chandra devi padmananda* faculty of law udayana university, bali, indonesia i nyoman suyatna** faculty of law udayana university, bali, indonesia article received: 4th july 2019; accepted: 28th january 2020; published: 31st january 2020 abstract china's social credit system (csc) is a reputation system adopted by the government of the peoples’ republic of china that establish a mechanism of rewarding and imposing punishment to its citizen, by taking into account the behavioral performance and compliance to the law and regulation. this article aimed to reviews the concept and the scope of implementation of china’s scs and to analyze the possibility of the indonesian government to adopt it into indonesia’s legal system and legal culture. this article reflects a doctrinal legal research that collects primary and secondary sources and uses statutory, comparative, and analytical approaches. this article found that scs basically aims at creating a comprehensive data based-system to improve the citizen's behavior based on the scoring system that entails rewards and sanctions. the widely accepted of this system by the citizen of prc, however, does not correspond to a remaining legal issue about the lack of protection of privacy rights, particularly regarding the naming and shaming of a blacklisted person. this article suggests that indonesia may adopt some china’s scs aspects, including the basic idea of the upgrading of the standard of citizen behavior, the establishment of a comprehensive system that integrating all data, and partial adoption of the data analysis. however, it seems that the naming and shaming for blacklisted persons do not relevant to be adopted by the indonesian government in the near future, in a consideration of the legal culture in indonesia and the communal life of the indonesian peoples. keywords: social credit system; government authorities; rights of privacy; peoples’ republic of china; republic of indonesia. how to cite: devi padmananda, cokorda istri chandra, and i nyoman suyatna. “what indonesia should learn from china's social credit system?: measuring government authorities and citizen’s privacy rights.” udayana journal of law and culture 4, no. 1 (2020): 104–118. https://doi.org/https://doi.org/10.24843/ujlc.2020.v04.i01.p06. doi: https://doi.org/10.24843/ujlc.2020.v04.i01.p06 * email/corresponding author : cokdevi00@yahoo.com ** email : nyoman_suyatna@unud.ac.id https://ojs.unud.ac.id/index.php/ujlc/issue/view/3398 https://doi.org/10.24843/ujlc.2020.v04.i01.p06 mailto:cokdevi00@yahoo.com mailto:nyoman_suyatna@unud.ac.id what indonesia should learn from china's social credit system?: measuring government authorities and citizen’s privacy rights cokorda istri chandra devi padmananda and i nyoman suyatna 105 i. introduction i.1 background term ‘privacy’ becomes more and more important in the current life of the peoples. each individual tends not to share or publicly release his/her privacy for security and comfort reasons. in general, there is also an increasing awareness of respecting the privacy rights of others. but, still, a concern of public interests and national security, to some extent, is considered as an exemption. a controversy raises when the government peoples’ republic of china (prc) issued a policy that introducing a social credit system. a preliminary step was taken by operating more than 200 million surveillance cameras,1 to be put mainly in public spaces such as streets, supermarkets, malls, and government buildings across the country. it may watch some practical activities of the peoples: who they meet, what they buy, or what they do. this monitoring mechanism would threaten individual privacy in their lives.2 the objective of social credit is to track and value the actions of every people.3 it is intended to establish a uniform scs system based on mechanisms of rewarding and imposing penalties. the scs inherently entails a far-reaching effect as it enables the blacklisting system. this national policy is not only implemented at the central level. it urges local government, as well as social and business entities, to take specific action including penalties and limitations to those who were blacklisted.4 further, it is also implemented until the level of the village.5 it is, indeed, a huge and systematic system. a skeptical view on prc’s scc, mainly from analysts and outsiders, does not parallel to the opinion of chinese citizens, who have directly experienced this system. the 2018 survey reveals that four out of five (eighty percent) respondents agreed to both government and commercial scc. among those who agreed to this system, the wealthy and well-educated citizens as well as the elderly, strongly support scc.6 a village leader 1 daithi mac sithigh and mathias siems. 2019. the chinese social credit system: a model for other countries ?. european university institute department of law, research paper no.2019/01.european university institute, italy, 13 2detik news, china bangun kediktatoran digital lewat sistem kredit sosial, 21 september 2018, https://news.detik.com/abc-australia/d-4222035/china-bangunkediktatoran-digital-lewat-sistem-kredit-sosial 3 larry catá backer, china’s social credit system: data-driven governance for a ‘new era’, current history (2019), 213 4 rogier creemers, 2018, china's social credit system: an evolving practice of control, leiden university-van vollenhoven institute, netherlands, 15. 5 sophia yan, the village testing china’s social credit system: driven by big data, its citizens earn a star rating, post magazine, 2 june 2019, https://www.scmp.com/magazines/post-magazine/long-reads/article/3012574/villagetesting-chinas-social-credit-system 6 genia kostka, what do people in china think about ‘social credit’ monitoring?, washington post, march 21, 2019, https://news.detik.com/abc-australia/d-4222035/china-bangun-kediktatoran-digital-lewat-sistem-kredit-sosial https://news.detik.com/abc-australia/d-4222035/china-bangun-kediktatoran-digital-lewat-sistem-kredit-sosial https://www.scmp.com/magazines/post-magazine/long-reads/article/3012574/village-testing-chinas-social-credit-system https://www.scmp.com/magazines/post-magazine/long-reads/article/3012574/village-testing-chinas-social-credit-system udayana journal of law and culture vol. 4 no. 1, january 2020 106 believes that scc would lead villagers to become better persons because it increases the good-faith as well as moral and family values.7 i.2 purpose this article aimed to analyze two main issues. first, it reviews the concept and the scope of implementation of china's social credit system (scs). in addition, it will analyze the possibility of the indonesian government to adopt china’s scs in its legal system and culture. i. 3 research method this article reflects a doctrinal legal research that collects the various type of legal documents dealing with this topic (primary sources) besides journal articles (secondary sources) that can be seen as normative.8 in particular, it uses statutory, comparative, and analytical approaches. the statutory approach is used to analyze relevant legal instruments while the comparative approach is used to compare the situation in china and indonesia. lastly, the analytical approach is used to deal with some analysis of legal concepts. 1.4 literature review rogier creemers studies how the idea as well as to indicate its evolution at the party-state, both at central and local levels9 while daithí mac síthigh and mathias siems assess the current and future operation of china’s scs as well as the range of regulatory approaches.10 genia kostka carried out a survey in 2018 with more than two thousand respondents through in-depth interviews. the study suggests that prc citizens tend to respond to the scs in positive thinking.11 karen li xan wong and amy shields dobson conduct comparative research that juxtaposes china scs and systems that are developed in western democratic countries.12 they found that despite western democratic countries do not have a comprehensive system as china’s csp, but the same cultures and structures are already in place in those https://www.washingtonpost.com/politics/2019/03/21/what-do-people-china-thinkabout-social-credit-monitoring/(genia kostka 1) 7 sophia yan, loc.cit 8 see ian dobinson and francis johns,. “legal research as qualitative research,” in research methods for law, ed. mike mcconville (edinburgh: edinburgh university press ltd, 2006) 9 rogier creemers, op.cit, 3. 10 daithi mac sithigh and mathias siems, op.cit, 2 11 genia kostka 1, op.cit 12 karen li xan wong and amy shields dobson, “we’re just data: exploring china’s social credit system in relation to digital platform ratings cultures in westernised democracies,” global media and china 4, no.2 (2019) : 222. what indonesia should learn from china's social credit system?: measuring government authorities and citizen’s privacy rights cokorda istri chandra devi padmananda and i nyoman suyatna 107 countries.13 there is a very lack of literature that discusses the impact of csc to indonesia. istigfaro anjaz ajizi reviews the impact of csc on indonesia. besides, he predicts indonesia’s future programs to make used big data technology optimally for the national interest.14 2. result and analysis 2.1. the concept and the scope of implementation of china's social credit system 2.1.1. the concept of china’s social credit system the basic idea of china’s social credit system (scs) is to create a comprehensive data based-system to improve the citizen's behavior. there are two basic elements of scs. first of all, a set of data that integrates data held by government and non-governmental bodies all over prc and the extension of means of collecting data. the second element is a system that ensures the citizens and other entities more earnest and reliable. it creates a comprehensive scoring system for every person’s social credit. a total score can be obtained as it integrates a variety of data collection system.15 the scs covers four scopes of measurement to assume whether or not persons comply with the law and social obligation, namely sincerity in government affairs, commercial sincerity, societal sincerity, and judicial credibility.16 this system assesses the realibilitiness of persons, business and social entities, and government agencies. the big data is exploited to conduct social control and management by virtue of addressing matters in society and preventing social instabilities in a very early stage.17 as previously informed, the scs based on mechanisms of giving reward and imposing punishment based on the scoring system. if a person places a high score in this system, he/she will enjoy some privileges in hotels and airports, low-rate loans, access to higher education, and the best position of employments.18 in case a person finds and then returns the lost items to the belonging person, he/she will be attributed some good sign, for 13 ibid, 228. 14 istigfaro anjaz ajizi, china’s social credit: new challenges and benefits, the jakarta post, february 27, 2018, https://www.thejakartapost.com/academia/2018/02/27/chinas-social-credit-newchallenges-and-benefits.html 15 martin chorzempa, paul triolo, and samm sacks. 2018. china’s social credit system: a mark of progress or a threat to privacy? policy brief, peterson institute for international economics. washington dc, 2 https://www.piie.com /system/files /documents/ pb18-14.pdf., 16 larry catá backer, op.cit., 210-211. 17genia kostka, 2019, “china’s social credit systems and public opinion :explaining high levels of approval,” new media & society 21, no. 7 (2019): 2, (genia kostka 2) 18detik news, china bangun kediktatoran digital lewat sistem kredit sosial, 21 september 2018, https://news.detik.com/abc-australia/d-4222035/china-bangunkediktatoran-digital-lewat-sistem-kredit-sosial https://www.thejakartapost.com/academia/2018/02/27/chinas-social-credit-new-challenges-and-benefits.html https://www.thejakartapost.com/academia/2018/02/27/chinas-social-credit-new-challenges-and-benefits.html https://www.piie.com/system/files/documents/pb18-14.pdf, https://www.piie.com/system/files/documents/pb18-14.pdf, https://news.detik.com/abc-australia/d-4222035/china-bangun-kediktatoran-digital-lewat-sistem-kredit-sosial https://news.detik.com/abc-australia/d-4222035/china-bangun-kediktatoran-digital-lewat-sistem-kredit-sosial udayana journal of law and culture vol. 4 no. 1, january 2020 108 example ‘helpfulness’ and “care-taking for others”.19 the blacklist is basically imposed by a legally binding supreme people's court. besides, specific government ministeries may also execute it. as an example, the ministry of culture and tourism may determine persons who violated rules in transportation, such as smoking or carrying prohibited items. there might also a joint punishment system in which breach of regulation entails a multifariousness or tiers of penalties. for example, the first sanction is in begun with imposing a fine and may be continued with a travel ban (flight or high-speed trains). one of the most economically-impact punishments for the blacklisted residents is the restriction to purchase specific goods and kinds of stuff from their bank account. 20 the main website that includes the names of the blacklisted person is publicly available, it means that everyone can access it easily. it is quite clear that such a system infringes on the internationally recognized right of privacy, in which everyone is protected not to be subjected to attacks upon his honor and reputation.21 individuals have grown up over the centuries in the struggle for human rights, and are now protected by international code that the rights to be fit alone, to live one's life as one pleases without interference by the state or its public authorities unless one is doing demonstrable harm to others.22 if we look at china’s national law and regulations, there is a provision that protects the citizen's privacy simply, if a person violates public rules, such as stealing items, blacklisting will be imposed, entails that he/she is not allowed using civil aircraft or high-speed train. according to article 40 of the constitution law of people’s republic of china: “the freedom and privacy of correspondence of citizens of the people’s republic of china are protected by law. no organizations or individual may, on any ground, infringe upon the freedom and privacy of citizens correspondence except in cases where, to meet the needs of state security of investigation into criminal 19severin engelmann, op.cit, 7 20 daithi mac sithigh and mathias siems, op.cit.,13 21 see article 12 of the universal declaration of human rights; article 17 (1) and (2) of international covenant on civil and political rights; article 1 of the convention for the individuals about automatic processing of personal data; article 16 (1) and (2) of convention on the rights of the child; article 14 of international convention on the protection of the rights of all migrant workers and members of their families; article 22 (2) of convention on the rights of persons with disabilities; article 5 of the american declaration on the rights and duties of man; article 10 of the african charter on the rights and welfare of the child; article 8 of the african declaration on internet rights and freedoms; article 11 of the american convention on human rights; article 21 of the asean human rights declaration; article 17 of the arab charter on human rights; article 8 (1) and (2) of the european convention for the protection of human rights and fundamental freedoms 22 paul siegbart, 1986, the lawful rights of mankind (new york: oxford university press, 1986), 161 what indonesia should learn from china's social credit system?: measuring government authorities and citizen’s privacy rights cokorda istri chandra devi padmananda and i nyoman suyatna 109 offenses, public security or procuratorial organs are permitted to censor correspondence in accordance with procedures prescribed by law”. 2.1.2. scope of implementation of the china social credit system: how far the local governments take step? even the local governments do not have all data like what central government has, they still have a big proportion of access in developing systems that connecting the accessed data in their authorities.23 progressive initiatives, even more than what the central government has done, were implemented by many local governments in prc. then as seen earlier, a considerable number of local governments had initiated social credit initiatives far ahead of the central government, including the city of ningbo, shenzhen, and shanghai.24 until march 2019, there are 43 cities in prc, in which local governments have initiated scc as a mandatory program.25 act of interference was practiced by some cities. in the city of dengfeng (henan province), a caller receives an audio message greeting, informing that the intended person to talk with is a not trustable person who has been blacklisted. in the city of taishan, the photos of the blacklisted persons are ‘advertised’ in light-emitting diode (led) billboards and tv screens situated in public spaces.26 local government officials conducted some technical works e.g collecting and uploading data, making a classification, as well as imposing a sanction. moreover, local tribunals, by taking an example of those in luoyuan (fujian province) and qichun (hubei province), also play a role in naming and shaming the blacklisted person in the local forum and specific means.27 the city of rongcheng (shandong province) becomes a pilot project. every single inhabitant at the beginning will be given 1000 points. a person who could reach beyond 1050 points is classified as an ideal resident, while resident who only could reach 849 is considered at the alert situation. the blacklisted persons are residents who scored below 599, which entails that their name will be widely exposed and published publicly, as well as will be thoroughly watched.28 it is, indeed, a huge and systematic mechanism. whatsoever, a survey reveals that most prc citizens tend to believe that the central government should steer a nationwide scs, compare to delegate the authority of taking 23 see martin chorzempa, paul triolo, and samm sacks, loc.cit. 24 ibid, 17-18. 25 genia kostka 1, loc.cit. 26 karen li xan wong and amy shields dobson, op.cit., 224. 27 chuncheng liu, “multiple social credit systems in china”, economic sociology 21, no. 1 (2019): 25 28 karen li xan wong and amy shields dobson, op.cit., 223. udayana journal of law and culture vol. 4 no. 1, january 2020 110 it lead to local governments.29 2.2. would the concept of social credit system be adopted in indonesia? daithí mac síthigh and mathias siems argue that the new approach of china scs should be learned by westerns, including lawmakers, as a picture to consider the impact of current emphasis upon quantification and reputation across a range of domains, personal and official.30 what then indonesia could learn from china scs? istigfaro anjaz ajizi pays attention that css includes foreign companies operating in china, in which indonesian companies that have business relations with the prc have to learn the ccs and to some extent, adjust and comply with the rules. an issue raises if indonesian business entities operating in prc are requested required to disclose their internal information to the chinese authorities. there may also be a case if chinese companies that perform their business activities in indonesia are requested to open their data from indonesia to the chinese authorities. would indonesia benefit from the big data revolution? again, as pointed out by istigfaro anjaz ajizi, its legal regime has to be directed clearly not only for the sake of protecting the national interests, but it could ensure the simplify the domestic business. besides, big data could ensure government transparency and increase public participation in policymaking.31 indonesia does not have legal protection upon personal data. the protections are stipulated in various sectoral regulations. further, there is either a clear or proper monitoring mechanism over business entities that collect and process personal data in indonesia.32 the chip inside the electronic national identity card (e-ktp) can function as a resident electronic data storage device, including biometric data such as a record of fingerprints.33 the national government is striving for a single identity system to build the nation's reputation in the global world. it will establish a single identity number in the various sector by using the population identification number (id number) that is listed on the ektp. this card will also be connected to the data contained in the driving license, social health insurance card, tax, military, police, and the national land agency. until may 2019 the ministry of home affairs has collaborated with 1,210 institutions that have integrated their institutional data with 29 genia kostka 1, loc.cit. 30 daithí mac síthigh and mathias siems, op.cit., 29-30. 31 istigfaro anjaz ajizi, loc.cit. 32 alia yofira karunian, helka halme, and ann-marie söderholm, " data profiling and elections: has data-driven political campaign gone too far?" udayana journal of law and culture 3, no.1 (2019): 117. 33article 58 (2) and 64 (6) of law of the republic of indonesia no 23 year 2006 concerning population administration as ammended by law no. 24 year 2013. what indonesia should learn from china's social credit system?: measuring government authorities and citizen’s privacy rights cokorda istri chandra devi padmananda and i nyoman suyatna 111 population data. the national amil zakat agency is one of the agencies that collaborate with the ministry of home affairs regarding the use of population databases to map muzaki and mustahik zakat. it is hoped that the national zakah service can use fingerprints and id number only. director-general of population and civil registration of the ministry of home affairs conveyed the public not to worry about integrating population data with a number of institutions because data confidentiality is guaranteed.34 constitutional court of the republic of indonesia has clarified the norms regarding the right of privacy. the court repeatedly rules that right of privacy is a type of derogable rights, but its restriction can only be exercised by the law, as stipulated in article 28j (2) of the 1945 constitution of the republic of indonesia. the court examines the issue of privacy rights in dealing with the case of wiretapping. it explicitly rules that wiretapping is a form of violation of the rights of privacy.35 it is as internationally accepted principles and norms, in which indonesia also fully respects those, underlining that restrictions on rights for privacy can not be done arbitrarily and that restrictions must meet certain conditions.36 in indonesia, violation of privacy rights may be imposed on various types of punishment, including criminal and administrative sanctions.37 what about the china scs that establishes a reward and punishment system? rewards to the citizen in indonesia is not given in an integrated system. instead, the rewards are given in particular fields. in the field of environment and nature, the national government since 1980, gives the kalpataru award as the highest appreciation given to individuals and groups who are considered to be instrumental in pioneering, serving, saving and fostering environmental and forestry protection and management.38 in security affairs, the police regularly give an award to residents who provide assistance. for example, the honour was given to a public transport driver 34 e-ktp, pemerintah fokus terapkan sistem identitas tunggal (terkoneksi dengan sim, bpjs, asuransi, pajak, dan data lain), 14 may 2019, https://www.e-ktp.com/2019/05/pemerintah-fokus-terapkan-sistem-identitastunggal-terkoneksi-dengan-sim-bpjs-asuransi-pajak-dan-data-lain/ 35 constitutional court of the republic of indonesia, case no. 5/puu-viii/2010, para 3.21. 36 see damian agata yuvens, rangga sujud widigda dan aisyah sharifa, dilema upaya hukum terhadap penyadapan, jurnal hukum dan pembangunan 47, no. 3 (2017): 298. 37 alia yofira karunian, helka halme, and ann-marie söderholm, op.cit, 115 38 article 6 of the regulation of the minister of environment and forestry of the republic of indonesia no.p.30/menlhk/setjen/kum.1/4/2017 concerning the conferment of kalpataru awards and kementerian lingkungan hidup dan kehutanan republik indonesia, 39 tahun penghargaan kalpataru, 11 juli 2019, https://www.menlhk.go.id/site/single_post/2217 https://www.e-ktp.com/2019/05/pemerintah-fokus-terapkan-sistem-identitas-tunggal-terkoneksi-dengan-sim-bpjs-asuransi-pajak-dan-data-lain/ https://www.e-ktp.com/2019/05/pemerintah-fokus-terapkan-sistem-identitas-tunggal-terkoneksi-dengan-sim-bpjs-asuransi-pajak-dan-data-lain/ https://www.menlhk.go.id/site/single_post/2217 udayana journal of law and culture vol. 4 no. 1, january 2020 112 who caught perpetrator of cellphone grabbing in jakarta.39 appreciation is also given to professions. in the field of national defense, some dedicated indonesian citizens who are a member of society, are eligible to be awarded a state defence award. 40 in sports, athletes are protected under the national social security program, mainly for work accident and death matters, following the formal cooperation between indonesian national olympic committee and badan penyelenggara jaminan sosial (bpjs) ketenagakerjaan is a public body tasked to protect all workers.41 the most area that clearly values the society is taxation, in 2018, the national government gave awards to 31 large taxpayers who are widely known as public figures. the award was aimed to send an implicit message to the public that even though they are known as successful figures or entrepreneurs, but in fact, it is also compliant with tax regulations.42 in 2019, some 6 out of the total 30 taxpayers are individuals, while the rests are big corporations. 43 for individual taxpayers, this kind of award becomes a pride because the large amounts of money that they have paid in the form of tax payments was valuable in the achievement of tax revenue targets and help state revenue. in addition, media reports will increase their reputation and finally, will have an impact to voluntarily increase compliance to the tax 44. in the city of bandung, land and building tax relief is given to those who have been contributed to the countries (retirees and veterans) as well as owners of cultural heritage buildings.45 in indonesia, social punishment is developed as a part of the state legal system and customary practice. for example, the police of denpasarbali regularly shows the suspected narcotics couriers and dealers to the 39 devi nindy sari ramadhan, polrestro jakbar beri penghargaan warga dan polisi berjasa, antara, 17 september 2018, https://www.antaranews.com/berita/749128/polrestro-jakbar-beri-penghargaan-wargadan-polisi-berjasa 40 articel 3 (a) and 4 (d) regulation of the minister of defense of the republic of indonesia no. 37 year 2013 concerning the conferment of state defense awards 41 putri syifa nurfadilah, bpjs ketenagakerjaan berikan pelindungan untuk atlet kompas.com, 30 july 2018, https://ekonomi.kompas.com/read/2018/07/30/130400726/bpjs-ketenagakerjaanberikan-pelindungan-untuk-atlet 42 direktorat jenderal pajak, penghargaan wajib pajak untuk apresiasi kontribusi kepatuhan, 7 november 2018, https://www.pajak.go.id/id/artikel/penghargaan-wajibpajak-untuk-apresiasi-kontribusi-kepatuhan 43 berita satu, ini 30 wajib pajak besar ri yang terima penghargaan kemkeu, 13 maret 2019, https://www.beritasatu.com/ekonomi/542705/ini-30-wajib-pajak-besar-riyang-terima-penghargaan-kemkeu 44 aditya wibisono, makna apresiasi dan penghargaan untuk wajib pajak, majalah pajak, 23 april 2019, https://majalahpajak.net/makna-apresiasi-dan-penghargaan-untukwajib-pajak/ 45 tri ispranoto, bukan hanya warga miskin, veteran juga dapat keringanan pajak, detik news, 29 july 2018, https://news.detik.com/berita-jawa-barat/d4139440/bukan-hanya-warga-miskin-veteran-juga-dapat-keringanan-pajak https://www.antaranews.com/berita/749128/polrestro-jakbar-beri-penghargaan-warga-dan-polisi-berjasa https://www.antaranews.com/berita/749128/polrestro-jakbar-beri-penghargaan-warga-dan-polisi-berjasa https://ekonomi.kompas.com/read/2018/07/30/130400726/bpjs-ketenagakerjaan-berikan-pelindungan-untuk-atlet https://ekonomi.kompas.com/read/2018/07/30/130400726/bpjs-ketenagakerjaan-berikan-pelindungan-untuk-atlet https://www.pajak.go.id/id/artikel/penghargaan-wajib-pajak-untuk-apresiasi-kontribusi-kepatuhan https://www.pajak.go.id/id/artikel/penghargaan-wajib-pajak-untuk-apresiasi-kontribusi-kepatuhan https://www.beritasatu.com/ekonomi/542705/ini-30-wajib-pajak-besar-ri-yang-terima-penghargaan-kemkeu https://www.beritasatu.com/ekonomi/542705/ini-30-wajib-pajak-besar-ri-yang-terima-penghargaan-kemkeu https://majalahpajak.net/makna-apresiasi-dan-penghargaan-untuk-wajib-pajak/ https://majalahpajak.net/makna-apresiasi-dan-penghargaan-untuk-wajib-pajak/ https://news.detik.com/berita-jawa-barat/d-4139440/bukan-hanya-warga-miskin-veteran-juga-dapat-keringanan-pajak https://news.detik.com/berita-jawa-barat/d-4139440/bukan-hanya-warga-miskin-veteran-juga-dapat-keringanan-pajak what indonesia should learn from china's social credit system?: measuring government authorities and citizen’s privacy rights cokorda istri chandra devi padmananda and i nyoman suyatna 113 members of the society in public spaces along with evidence of various types of drugs.46 the policy of imposing social sanctions is complementing the charge of criminal sanctions to perpetrators. despite critics from human rights advocates, the chief of police still continues its policy by arguing that it aims at shaming the perpetrator ashamed and willing to not repeat his actions again, as well as to become a means of public education about the dangers of narcotics.47 another example of social punishment is the execution of whipping (caning) to perpetrators of immoral acts in aceh as a violation of qanun48 that, for years, executed in a public space. the recent development, the whipping can be executed in a correctional facility (penitentiary), may be attended by members of society (the public) that have been reached 18 years old.49 a customary sanction that reflects social publishment is also imposed on those who are considered to violate customary rules of the village. for instance, customary villages in bali have the rule to impose kasepekang and other types of sanctions on its member who cannot fulfil social and financial obligations to the village community.50 reward and punishment mechanisms have been well-practiced to the performance of civil servants. the government regulation determines that civil servants who have shown loyalty, dedication, skill, integrity, discipline, and work performance in carrying out their duties can be given appreciation.51 these dedicated civil servants may be awarded some type of appreciation, including the sign of honor; special promotions; priority opportunity for development competence; and/or opportunity to attend official events and/or state events.52 on the contrary, civil servants who commit disciplinary violations are sentenced to discipline by officials who have the authority to punish.53 there is also an ongoing development in which some government departments and state-owned enterprises apply more creative financial remuneration, performance allowance, as well as reward and punishment systems to their servants.54 46 balinews network, polresta denpasar kembali pajang wajah pengedar narkoba di lapangan renon, 8 september 2019, http://balinewsnetwork.com/2019/09/08/polrestadenpasar-kembali-pajang-wajah-pengedar-narkoba-di-lapangan-renon/ 47 kumparannews, alasan kapolresta denpasar pajang bandar narkoba di cfd: sanksi sosial, 2 maret 2019, https://kumparan.com/kumparannews/alasan-kapolrestadenpasar-pajang-bandar-narkoba-di-cfd-sanksi-sosial-1551503520217472792 48 qanun aceh no. 6 year 2014 concerning jinayat law 49 article 30 of the governor regulation of aceh province no. 5 year 2018 concerning the implementation of jinayah procedural law 50 see article 31 (f) regulation of bali province no. 4 year 2019 concerning customary village in bali 51 article 231 of the of the government regulation of the republic of indonesia no. 11 year 2017 concerning civil servants management 52 ibid, article 232. 53 ibid, article 229. 54 see for example reward and punishment at pt. telkom (indonesian telecomunication) in rendra maulana suryadilaga mochammad al musadieq gunawan eko nurtjahjono, “pengaruh reward dan punishment terhadap kinerja: studi pada karyawan http://balinewsnetwork.com/2019/09/08/polresta-denpasar-kembali-pajang-wajah-pengedar-narkoba-di-lapangan-renon/ http://balinewsnetwork.com/2019/09/08/polresta-denpasar-kembali-pajang-wajah-pengedar-narkoba-di-lapangan-renon/ https://kumparan.com/kumparannews/alasan-kapolresta-denpasar-pajang-bandar-narkoba-di-cfd-sanksi-sosial-1551503520217472792 https://kumparan.com/kumparannews/alasan-kapolresta-denpasar-pajang-bandar-narkoba-di-cfd-sanksi-sosial-1551503520217472792 udayana journal of law and culture vol. 4 no. 1, january 2020 114 there are some aspects that indonesia may adopt from china scs. first of all, the main purpose of this system is to steer the behavior of the citizen into a better level. the system guides all citizens to act in accordance with law and regulation and to behave in a proper manner. for indonesia, this may become a tool of social engineering to all indonesian peoples in achieving a standard way of behaving and create an ideal legal culture. second, china’s scs establishes a comprehensive system that integrating all data. such a comprehensive system may be adopted by the indonesian government in advancing the current e-ktp project. but, it must ensure that the data is collected from available sources and aimed for a public purpose. looking at the massive implementation of scs by chinese local governments, a concern should be given with regards to harmonize the authority between national and local government in indonesia, especially with regards to the development of regional development information system.55 basically, local government is obliged to acknowledge the public service information, in which the local government may use information and communication technology.56 third, partial adoption of the data analysis. china’s scs applies an analytical means in assessing the collected data from various sources. this may be adopted by the indonesian government, but not in a quantitative means. the analysis should be limited only to perform cross-checking data that may have been changed or invalid. therefore, the analysis is not performed to indicate any person deserves to be given an award or to be put on a blacklist. on the contrary, there is one aspect of chinese scs that should not be adopted by indonesia, at least for the current societal development. it is the naming and shaming in a public space that should be avoided as much as the government can. one hand, it infringes on the right of privacy that is legally protected and on the other hand, it may have a psychological impact not only on the individual who is blacklisted but also for their family and relatives. this may be a serious issue for indonesian peoples who mostly live in a communal life. in addition, indonesia upholds the rule of law. this means nobody is subject to arbitrary measures by the government. the punishment should be decided by competence authorities, primarily the court system, to ensure that a person is treated equally before the law and to give a room for the alleged person to defend his/her self before the pt telkom indonesia witel jatim selatan malang,” jurnal administrasi bisnis 39, no.1 (2016) and pt. kereta api (indonesian railways company) in dicky saputra, nurlina, lenny hasan, “pengaruh reward (penghargaan) dan punishment (sanksi) terhadap produktivitas kerja karyawan pt. kereta api indonesia (persero) divisi regional ii sumatera barat,” jurnal manajemen dan kewirausahaan 8, no.1, (2017) 55 article 274 of the law of the republic of indonesia no. 23 year 2014 concerning regional government 56 ibid, article 347. what indonesia should learn from china's social credit system?: measuring government authorities and citizen’s privacy rights cokorda istri chandra devi padmananda and i nyoman suyatna 115 tribunal bench. 3. conclusion the china’s social credit system (scs) basically aims at creating a comprehensive data based-system to improve the citizen's behavior. it covers four scopes of measurement to assume whether or not persons comply with the law and social obligation, namely sincerity in government affairs, commercial sincerity, societal sincerity, and judicial credibility.57 the scs applies a reward and punishment for chinese citizens based on the scoring system. despite a massive implementation and positive response from the majority of its citizens, this system inherently raises a question of the protection of privacy rights, especially with regards to the exposure of a blacklisted person to the public through various means and channels. would indonesia 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https://www.scmp.com/magazines/postmagazine/long-reads/article/3012574/village-testing-chinas-socialcredit-system legal documents international covenant on civil and political rights universal declaration of human rights the constitution law of people’s republic of china, translation https://www.wipo.int/edocs/lexdocs/laws/en/cn/cn147en.pdf law of the republic of indonesia no 23 year 2006 concerning population https://www.pajak.go.id/id/artikel/penghargaan-wajib-pajak-untuk-apresiasi-kontribusi-kepatuhan https://www.pajak.go.id/id/artikel/penghargaan-wajib-pajak-untuk-apresiasi-kontribusi-kepatuhan https://www.e-ktp.com/2019/05/pemerintah-fokus-terapkan-sistem-identitas-tunggal-terkoneksi-dengan-sim-bpjs-asuransi-pajak-dan-data-lain/ https://www.e-ktp.com/2019/05/pemerintah-fokus-terapkan-sistem-identitas-tunggal-terkoneksi-dengan-sim-bpjs-asuransi-pajak-dan-data-lain/ 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https://ekonomi.kompas.com/read/2018/07/30/130400726/bpjs-ketenagakerjaan-berikan-pelindungan-untuk-atlet https://ekonomi.kompas.com/read/2018/07/30/130400726/bpjs-ketenagakerjaan-berikan-pelindungan-untuk-atlet https://www.antaranews.com/berita/749128/polrestro-jakbar-beri-penghargaan-warga-dan-polisi-berjasa https://www.antaranews.com/berita/749128/polrestro-jakbar-beri-penghargaan-warga-dan-polisi-berjasa https://majalahpajak.net/makna-apresiasi-dan-penghargaan-untuk-wajib-pajak/ https://majalahpajak.net/makna-apresiasi-dan-penghargaan-untuk-wajib-pajak/ https://www.scmp.com/magazines/post-magazine/long-reads/article/3012574/village-testing-chinas-social-credit-system https://www.scmp.com/magazines/post-magazine/long-reads/article/3012574/village-testing-chinas-social-credit-system https://www.scmp.com/magazines/post-magazine/long-reads/article/3012574/village-testing-chinas-social-credit-system https://www.wipo.int/edocs/lexdocs/laws/en/cn/cn147en.pdf udayana journal of law and culture vol. 4 no. 1, january 2020 118 administration as ammended by law no. 24 year 2013. law of the republic of indonesia no. 23 year 2014 concerning regional government government regulation of the republic of indonesia no. 31 year 2013 concerning the implementation of law number 6 year 2011 concerning immigration government regulation of the republic of indonesia no. 11 year 2017 concerning civil servants management regulation of the minister of defense of the republic of indonesia no. 37 year 2013 concerning the conferment of state defense awards regulation of the minister of environment and forestry of the republic of indonesia no.p.30/menlhk/setjen/kum.1/4/2017 concerning the conferment of kalpataru awards regulation of financial services authority no. 42 /pojk.03/2017 concerning obligations for arrangement and implementation of credit policies or bank financing for commercial banks qanun aceh no. 6 year 2014 concerning jinayat law regulation of bali province no. 4 year 2019 concerning customary village in bali governor regulation of aceh province no. 5 year 2018 concerning the implementation of jinayah procedural law case law constitutional court of the republic of indonesia, case no. 5/puuviii/2010 62 | udayana journal of law and culture vol. 01 no.1, january 2017 57 global justice: building international and supranational structures on the basis of fundamental rights edgar lammertse* senior coordinating legal and policy advisor and lawmaker at the ministry of education, culture, and science of the netherlands i. introduction it is important to recognize that the increase of interdependency between nations and citizens in modern global society urges to build new legislative structures that go beyond local, regional and national sovereignty. it is also to be noticed that, unlike the asian, arabian or african world, in western europe, local tribes and communities with their own history, culture, social and legal systems never existed or lasted long enough to play a dominant role in shaping or changing structures of governmental and legal regimes.1 in fact these local tribes and communities were easily “eaten up” by bigger powers, for example the roman empire, the franks, and the teutons. the present governmental and legal structures in western europe are still partly designed on the basis of or derived from the structures these big powers brought in. for instance, a major part of western european legal systems, especially in the field of civil law and criminal law, can be directly related back to the french legal systems and governmental structures of the french period at the end of the eighteenth and the beginning of the nineteenth century. * correspondence: l.g.lammertse@minocw.nl 1 see how local laws, customs, and roman law had ever played in legal practice in europe in tammo wallinga, “the common history of european legal scholarship,”erasmus law review 4, issue 1 (2011): 3. http://www.erasmuslawreview.nl/tijdschrift/elr/2011/1/elr_2210-2671_2011_004_001_002.pdf it is interesting to take note that, however, local law may be taken into account (ius romano-germanicum and roman law) to be applied to cases of local importance. see martin otto, law (european history online,2011), http://ieg-ego.eu/en/threads/backgrounds/law see also friedeburg, robert von state forms and state systems in modern europe, european history online, http://ieg-ego.eu/en/threads/crossroads/politicalspaces/robert-von-friedeburg-state-forms-and-state-systems-in-modern-europe/at_download/dnb. abstract this article is intended to share a few thoughts, notions and questions about regulatory and governmental structures, both national and international, with regard to the development of global justice. it will highlight the issue whether or not local wisdom can contribute to global justice. in addition, this writing will discover legal problems that arise from the idea of global society and global justice by analyzing jurisdictional aspects and by explaining a little bit about dematerialization of crime, as it has been affected by the changing of communities behavior in global contexts after the era of computer and information and communication technology (ict). progressive development in europe, especially regarding the european union law, will also be explored in order to describe the respect for fundamental rights in this region. keywords: global justice, international society, development, local wisdom. udayana journal of law and culture vol. 01 no. 1, january 2017, pp. 57 70 e-issn 2549-0680 | 58 for centuries western europe was sparsely populated, without much social and cultural tradition, economic activities and trade, and without mature administrative and governmental structures. this more or less forgotten swampy area was an easy prey for invading powers, due to desintegration and the lack of coherent structures. as far as there were local communities with specific traditions, structures and believes, they could not stand up or maintain their position against the often violent and ruthless occupiers. western europe is relatively flat, except for the mountainous areas: the alps and pyrenees. people could travel quite easily and invaders were not hindered by too difficult geographic obstacles. this situation entails that there was no chance for local communities to survive the dominance of greater powers, however, it should be noted that this does not mean that there was no social-cultural diversity in europe. on the contrary, this may form one of the social, demographic and geological explanations2 behind the fact that in western-europe the creation of international and supranational economic and legal structures are relatively “easily” established. this situation differs from the situation in other parts of the world, especially the east. throughout millennia this part of the world has experienced the development of many civilizations and is still rich of indigenous social and cultural groups. indeed, geographic conditions play a key role in the development of social, cultural, governmental and legal structure of countries. the geographic conditions in some parts of asia are very different. inhospitable mountainous areas and many isolated islands enabled local communities to develop and maintain their own specific traditions, beliefs and regulatory systems,even without any connection to other social groups and communities. unlike in western europe, the traditions, religions and wisdom of the indigenous groups in the east still have enormous influence on all day life, morality, social positions, behavior, legal positions and regulatory systems. therefore it raises the question if and how this local wisdom can be recognized, described, reached, validated, judged, connected with and incorporated in the present global governmental and legislative structures. ii. the purpose of article this article is intended to share a few thoughts, notions and questions about regulatory and governmental structures, both national and international, with regard to the development of global justice and seen from the – perhaps limited – scope of a governmental employee in a small country in western europe, the netherlands. these thoughts, notions and questions not only emerge from the author’s experiences as a law maker, but also from personal interests and experiences. it will 2 analysis on ecodemographic dimension of human collectivities may be read in john gerard ruggie,”territoriality and beyond: problematizing modernity in international relations,” international organization 47, no. 1 (winter, 1993): 152-154, http://www.rochelleterman.com/ir/sites/default/files/ruggie%201993.pdf. global justice: building international and supranational structures on the basis of fundamental rights edgar lammertse 64 | udayana journal of law and culture vol. 01 no.1, january 2017 59 address some issues that arise from the question whether local traditions, insights and wisdoms should influence legislative and governmental structures and can contribute to global justice and will also provide a short introduction to global and european legal systems. the following description will be outlined as follow. first, this writing will highlight the issue whether or not local wisdom can contribute to global justice. second, it will discover legal problems that arise from the idea of global society and global justice by analyzing jurisdictional aspects and by explaining a little bit about dematerialization of crime, as it has been affected by the changing of communities’ behavior in global contexts after the era of computer and ict. lastly, a conclusion will sum up the analysis of this article. iii. can local wisdom contribute to global justice? it is undeniable that everybody is willing to recognize and respect the old traditions and wisdoms of traditional local communities and indigenous groups and value their contribution to the variety of the human race as the basis on which we are able to build the world of today. i remember the images taken in 2011 from a plane, showing a primitive tribe in the dense rainforests at the border of peru in south america, which existence was unknown until then. it is estimated that there are still a few dozens of these indigenous tribes, living isolated from the outside world.3 when i saw the pictures i tried to connect what i saw with our modern world. and i realized that when we observe these traditional people we are looking back in time. like watching the stars, knowing that the light was emitted a long time ago and that the particular star you are staring at probably already extinguished. in the meantime the universe and the world have changed. today we send outer-space probes on far away missions into the universe. we study ancient stars, distant galaxy’s and planets, black holes and other mysterious phenomenon’s of the universe, hoping to find facts and explanations that can reveal and explain our presence on planet earth and our place in the universe. today we live in a worldwide community, using high-tech communication systems and modern techniques to travel all around the world and beyond. we do not live anymore in hidden and unexplored places, with ancient traditions and beliefs, but in a global village, trying to live together in peace, harmony and prosperity on the basis of commonly accepted principles of human rights and human dignity. the world changes undeniable and unstoppable. and it changes fast. we study nature and ancient civilizations to learn about the meaning of human life, our behaviour and our thoughts and to know where we come from. knowledge gives us insight in how we think, act and believe today and helps us to make progress in building a better world. that in my opinion is the meaning and purpose 3 see survival international, “the uncontacted indians of brazil,” http://www.survivalinternational. org/tribes/uncontacted-brazil andinformation provided in http://www.funai.gov.br/. | 60 of studying the traditions of ancient civilizations and still existing local communities and indigenous people. but this is not yet followed by the logical conclusion that all the old wisdoms owned by these local communities and indigenous people are suitable to be incorporated in today’s modern legal systems. it is interesting to cite the speech of the former united states president barack obama on 26th july 2015 when he visited kenya, the country where he was born.4 besides speaking with respect about the people of kenya and their culture and traditions, he also addressed the problems and challenges the country is facing by mentioning some local traditions, for instance the old habit of genital mutilating of young girls and the bad treatment of girls and women as second-class citizens.5 he strongly pleaded for abolishing these traditions, arguing that they do not fit in the twenty-first century and our modern views on the rights of every human being. in other words, such local traditions do not contribute to equality, social and economic progress, peace and justice. former president obama hereby referred to the new kenyan constitution, where it is stated that “every person has inherent dignity and the right to have that dignity respected and protected.”6 the former president put the finger on the sore spot by saying that just because something is a tradition or part of our past does not make it right. we should understand our history, but we have to recognize that it also sends bad messages to those who suffered from bad treatment or injustice. rather than on preserving traditions, the focus of life in modern times lies on and efforts are directed towards economic growth, prosperity, education, eradication of the great misbalance between rich and poor, the combat against diseases and preserving nature. these elements, alongside the recognition of the principle of human dignity and the essential human rights for every person, are of great importance in achieving worldwide harmony, justice and peace. this raises the question whether we should try by all means to preserve local communities and indigenous people just for the sake of preventing them from extinguishing. certainly, we treasure the existence of indigenous people and traditional communities. we also recognize the right of these people to maintain their traditional way of living. that is why we make efforts to protect and preserve them, on a national and international scale by binding regulations, declarations and treaties.7 but with our modern techniques we are able to explore and cultivate every inch of 4 https://www.whitehouse.gov/the-press-office/2015/07/26/remarks-president-obama-kenyanpeople. 5 an interesting analysis regarding this issue may be read in geofrey towett, peter gutwaoino, and audrey matere, “the female genital mutilation act 2011 of kenya: challenges facing its implementation in kajiado 6 constitution of kenya, art.28. national council for law reporting with the authority of theattorney general, laws of kenya: constitution of kenya,the official law reports of the republic of kenya, revised edition 2010. 7 see for instance the united nations declaration on the rights of indigenous peoples, adopted by the general assembly of the united nations on september 17th 2007,61/295. global justice: building international and supranational structures on the basis of fundamental rights edgar lammertse 66 | udayana journal of law and culture vol. 01 no.1, january 2017 61 our planet. sooner or later modern society will penetrate into the life of indigenous people and their communities and affect their way of living. from that moment on they are caught up in the slipstream of modern society. the question is how long the traditions will last. are young people, who taste the temptations of earning money, modern life and possessing economic goods, still willing to learn and maintain the old traditions and wisdoms of their community and ancestors and transfer them to next generations? or will they choose for education and jobs in the hunt for the luxury of the modern life? we can and must try to preserve traditions. but sooner or later and with all respect, they become more and more items like art pieces in a global museum. we can study them, but the basic question is whether we can use them as the binding regulator and guidance for global society and global justice. local traditions and wisdoms are more and more becoming sanctuaries for those who seek personal enrichment and inner peace. thinking about incorporating the local, traditional philosophies as well as wisdom in legal systems that are binding, places us in front of some challenges. the first one is to obtain consensus about the idea of incorporating local wisdom in regulatory systems. we can have discussion about this, because the world today is asking for new and modern concepts of basic principles and structures on which global legal systems have to be built in order to create a safe and harmonious world. the incorporation of local wisdoms and philosophies that are traditional and typical for a limited group in legally binding systems conflicts with the idea that global justice requires the adoption of commonly accepted principles. the second challenge is to determine the criteria to validate and judge local wisdoms for their appropriateness with regard to global justice. it is a very difficult task. it should be clear that there is no traditional wisdom that can be accepted for incorporation in legislative systems that conflicts with human dignity and human rights, that discriminates, or that has violent propaganda elements.8 for instance, the caste-system according to which people are divided in groups with different legal rights and social and economic opportunities is only on the basis of descent or origin, the more fundamentalist visions with violent elements of corporal punishment, and the denying of women’s rights. to me such “wisdoms”, although they may be traditional and ancient, can never contribute to any form of global justice in our modern world. and i want to add something more. we have to learn from the past, we have to learn from the wisdoms, traditions, religions, achievements and mistakes of our ancestors and all kinds of traditional communities. but today, human dignity, reason, economics, progress and science are our guidelines for building legal systems for the benefit of all individuals on earth. policy making and law making in modern society are evidence 8 in respect of preserving the rights of indigenous people, the un declaration on the rights of indigenous peoples states in article 34 that indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards. | 62 based and the legal rights and obligations of people should be as much as possible determined by objective criteria and at least commonly accepted principles. otherwise we turn into a legal system that bertrand russel (1872-1970) characterized as “wherein law in origin is merely a codification of the power of dominant groups, and does not aim at anything that to a modern man would appear to be justice.”9 and i again refer to the kenya-speech of former president obama, when he said that a politics that is based solely on tribe and ethnicity is a politics that is doomed to tear a country apart.10 iv. legal problems that arise from the idea of global society and global justice due to modern information and communications techniques, enormous social and economic changes are going on today. the development of what we call “the information society” offers unique and unforeseen chances for worldwide social and economic activity and prosperity. but the development of the information society has also its drawback. a lot of questions and problems arise with regard to security, crime, privacy, morality and health. opinions differ a lot whether the development of the information society is a blessing to the world, or a blessing in disguise. in this part of this article i would like to jump into modern times and address some legal issues that arise simultaneously with the development towards a modern global information society. the first issue is jurisdiction. the second issue is the changing character of crimes. although they are of a different nature, these issues play a key role in thinking towards the establishment of global legal systems and global justice. globalization and internationalization ask for standardization (techniques, measures, language, terms of education) and regulation. for instance, if we do not speak the same language and do not understand each other in the field of technical specifications needed for manufacturing information and communication technology (ict) systems, outer-space crafts, air planes, and communication systems, we will never be able to communicate with each other and, consequently, disaster will occur. the modern techniques and communication systems provide not only an environment for new versions of existing crimes like theft, shake-down and blackmailing, but also the occurrence of new crimes related to ict that can endanger and jeopardize the peaceful co-existence of people and communities.11 and we 9 b. russell, bertrand russell’s best (new york: routledge classics, 2009), 117 10 https://www.whitehouse.gov/the-press-office/2015/07/26/remarks-president-obama-kenyanpeople. 11 see for example university twente news, “ict plays an increasing part in criminal activities:perpetrators are often young, female, and dutch,”https://www.utwente.nl/en/ news/!/2013/3/158372/ict-plays-an-increasing-part-in-criminal-activities see also united nations office on drugs and crime, “study on the effects of new information technologies on the abuse and exploitation of children, vienna-new york,”https://www.unodc.org/documents/organized-crime/cybercrime/study_ on_the_effects.pdf. global justice: building international and supranational structures on the basis of fundamental rights edgar lammertse 68 | udayana journal of law and culture vol. 01 no.1, january 2017 63 have to be aware that modern communication techniques offer new opportunitiesfor radical and terrorist groups to disseminate their propaganda and plant their violent ideas in the minds of people throughout the world. in order to address these issues properly, global understanding and cooperation are needed. 4.1 jurisdiction in the modern global information society where borders disappears, jurisdiction is one of the problematic issues. communication, services and information go in a split second beyond national borders. the scale of activity has become worldwide. and that does not fit any longer in the way states organize their governmental and legal structures, which are based on territorial sovereignty. it is often difficult to determine where for example a crime is committed and which state has jurisdiction. we are still far away from consensus about establishing a global legal system for addressing transnational legal cases. the sovereignty of states is a big obstacle towards the development of global legal systems that preside over and overrule individual states. a complication behind this is the fact that visions about what is allowed or not, for instance in the light of freedom of expression,12 freedom of speech and freedom of religion, differ throughout the world. there is no consensus and the way in which these visions are converted in constitutional legal provisions and legal systems depends on to the political, social, cultural and religious traditions and morality of individual sovereign states. but it is not impossible to create global legal systems. the international community was successfully able to establish the international court of justice (icj) and the international criminal court (icc), both residing in the hague in the netherlands.13 the icj is a principal judicial organ of the united nations.14 it has 12 international covenant on civil and political rights, art. 19. 13 the international court of justice (icj) first appeared on april 18th 1946 after its predecessor, the permanent court of international justice, was abrogated. the international court of justice has its legal basis in the un-charter, but it has its own statute. the international criminal court (icc) was established on the initiative of the united nations by the rome statute of the international criminal court in 1998 and was started effectively in 2002. up to now, some 124 countries have become state parties to the statute. https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20 to%20the%20rome%20statute.aspx. these two courts are not the only ones with a global jurisdiction. in 1994 the international tribunal for the law of the sea, itlos, was established. after world war ii special ad-hoc tribunals were established on the basis of international agreements: the nurenberg tribunal and the tokyo tribunal. in 90s, special tribunals were established by the security council of the un: in 1993 international criminal tribunal for the former republic of yugoslavia (icty) and in 1994 the international criminal tribunal for rwanda (ictr). the reason that these two tribunals were established under the powers of the security council, derived from article vii of the un-charter, was that the security council considered the situation in both cases as a threat for international peace and security and that the establishment of the tribunals contributed to the restoration of peace in both regions. the attempt to establish a tribunal under the auspices of the security council was in july 2015 for the prosecution of those who are responsible for shooting down flight mh17 of malaysia airlines above ukraine in july 2014. this attempt failed because of a russian veto. 14 the charter of the united nations, art. 7 (1). | 64 competence to settle cases involving states regarding public international law issues15 and to give a so called advisory opinion.16 contrary to the icj that has mandate to proceed legal maters between states, the icc solves the problem of jurisdiction in prosecuting genocide, crimes against humanity, war crimes and the crime of aggression.17 although the establishment and legal powers of the icc depend on the subscription of individual sovereign states that ratified the rome statute, the icc can exercise its jurisdiction in a case that is brought before the court on the own initiative of the un security council or the initiative of the prosecutor.18 on a global scale, there is still no such thing as a supranational system, in which states delegate some of their sovereignty to supranational governmental bodies. such supranational legal systems exist only on a regional scale. the good example is the european union (eu), particularly its economic pillars. the process of building the eu started in 1957 with the establishment of the european coal and steel community (ecsc).19 the idea of creating a european community was a reaction after decades of very bloody wars, culminating in the horrific world war ii.20 it was the start of uniting european countries in order to secure long lasting peace, economic growth, employment and stability. it was then understood that peace is not reached by political cooperation only, but also that economic cooperation and the recognition of essential human rights is conditio sine qua non to establish a situation where neighbouring countries can exist together in harmony. beginning with putting the production of coal and steel – the former two pillars of war industries under supranational supervision, the eu now has extended its supranational powers to many fields, including food/agriculture production,21 free flow of people and goods by abolishing protectionism, encouraging the creation of jobs, supporting poorer areas, preserving nature and issues concerning security and defense.22 15 the statute of the international court of justice, arts. 34 (1) and 36. 16 ibid, art. 65 17 the rome statute of the international criminal court and resolution, art.5. rc/res.6,http:// www.icc-cpi.int/iccdocs/asp_docs/resolutions/rc-res.6-eng.pdf. 18 ibid, art.13. 19 treaty of paris, 1951, establishing the european coal and steel community (ecsc). 20 preamble of the treaty on the european union, consolidated version of the treaty on european union and the treaty on the functioning of the european union, official journal c 326 , 26/10/2012 p. 0001 – 0390 21 treaty of rome, 1967. by this treaty the european economic community (eec) was established. the eec was a merger of the european coal and steel community (ecsc), the european economic community established in 1957 and the european atomic energy community, also established in 1957. although the treaty of rome expanded the powers of the eec to more economic sectors, most important were an agriculture subsidizing system and a toll free region. 22 treaties of maastricht (1992) and amsterdam (1997). the treaty of maastricht turned the eec into the european community (ec) and formed the basis for the economic and monetary union (emu) and prepared the introduction of a common currency, the euro (€). in 2001 the treaty of nice was signed. rather than expanding the powers of the ec this treaty mainly dealt with reforming the internal structures. in 2007 the treaty of lisbon was signed. by this treaty the european community was transformed into european union (eu). the treaty mentions climate change and energy issues as focus areas without extending the powers of the eu. the treaty also changed internal procedures and introduced a procedure for the exit of member states. global justice: building international and supranational structures on the basis of fundamental rights edgar lammertse 70 | udayana journal of law and culture vol. 01 no.1, january 2017 65 in 1985 the schengen agreement was signed by france, germany, belgium, luxembourg and the netherlands, establishing the so called “schengen-area” where internal borders were abolished to guarantee free flow of people and easy traffic of goods. the schengen agreement also aims at cooperation in the field of police services and judicial authorities. this agreement is now becoming part of the legal framework of the eu. the schengen area has expanded to almost all member states of the eu, and is regarded as one of the most ambitious realizations of the eu.23 within the borders of the schengen area, people can travel freely without being checked and common rules apply for visa and asylum. the recent case of refugees, mainly from syria, who try to enter the western european countries has raised an issue about the effectiveness of the schengen agreement for its parties. the character of the eu as a supranational governmental body is shown in its binding legislative powers. for example, eu can create regulations as binding legislative act that must be applied in its entirety across the eu. besides, eu may also impose directives, decisions, reccommendations, and opinions that have lower binding power compared to regulations. secondly, the eu is a real political and governmental institution that can act on its own initiative. the european commission as executive power and the european court of justice as judicial power can supervise the compliance by member states with the eu-legislation and can impose severe sanctions. the most recent step towards further integration of the economies of the member states is the establishment of the economic and monetary union (emu). the emu aims at the coordination and harmonization of economic, monetary and fiscal policy and the introduction of a common currency (the euro).24 majority of eumember states are involved in the emu and the purpose is that in the end all eumember states fulfil the criteria for adopting the euro. most of eu members have adopted the euro as currency.25 it is to be noticed that the emu is seen as an irreversible project. member states cannot step out and no procedure is foreseen for pushing a member state out. to what consequences this can lead shows the recent case of greece. greece balances on the edge of bankruptcy and the leftwing administration refused to fulfil the conditions and arrangements set out by the monetary institutions and european leaders. although an exit procedure is debatable,26 at some point a “grexit” – the exit of greece out of the emu – seemed 23 anna kiefer, “the thirtieth anniversary of the schengen agreement: retrospective and perspective in light of the migrant crisis” (cornell int’l l.j. online, (2015) vol. 3: 25. http://cornellilj.org/wp-content/ uploads/2015/12/anna-kiefer-the-thirtieth-anniversary-of-the-schengen-agreement-3-ciljo-22.pdf 24 see description on monetary union in klaus-dieter borchardt, the abc of european union law (luxembourg: publications office of the european union, 2010), 20, 34, 54, 73, 74, 96. 25 the united kingdom, denmark, and sweden have special treaty-based position. they are allowed to maintain their own currency. see seth shobhith, why these european countries don’t use the euro, (investopedia,2016). http://www.investopedia.com/articles/investing/050515/why-these-european-countries-dont-use-euro.asp 26 see analysis by jens c.damman,“the right to leave the eurozone,”texas international law journal,48:125, issue 2 (2013): 126-137. http://www.tilj.org/content/journal/48/num2/dammann125.pdf. | 66 to be the only way out of the trouble in order to maintain the position of the euro and with that the economic stability of the european market. in last resort and after months of negotiations a “grexit” was averted. there is a lot of debate going on whether the greece-case demonstrates the weakness of such supranational systems, or evidences the working of the system and the need for keeping everybody on board for the higher purpose of the prosperity of the european people. the shocking ‘brexit’-the exit of united kingdom (uk) out of the eualso raises concern about the ability of the eu to maintain its supranational character. it cannot be denied that the uk is one of the big players in the eu, and a brexit will definitely have impact on the eu system.27 the supranational character of the eu-system means that cooperation and harmonization within the eu is not optional for member states. by the signing and ratification of the treaties that establish the eu, member states delegate a part of their sovereignty to the eu-institutions and accept the binding eu-regulations and directives which can be enforced through the eu-commission and the court of justice of the eu. the eu is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. these values are common to the member states in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.28 the eu-treaty recognizes and incorporates the fundamental human rights stipulated by other international treaties and conventions, like the european convention for the protection of human rights and fundamental freedoms (echr) and the charter of fundamental rights of the european union of 7 december 2000, as adopted in strasbourg, on 12 december 2007, which shall have the same legal value as the treaties.29 furthermore, in the preamble of the eu-treaty it is said that inspiration is drawn from the cultural, religious and humanist inheritance of europe, from which the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law have developed.30 4.2 dematerialization of crime i would like to pay a little attention to the phenomenon that the immaterial becomes more and more important. in the modern world we spend a lot of time online on the internet and there are a lot of young people who not only ‘live with internet’, but actually ‘live on the internet’. the online world is a virtual world. physical products and acts are increasingly replaced by virtual services and information, while 27 see for example the impact of brexit on the eu environmental agreements in colin t reid, “brexit and the future of uk environmental law,”journal of energy & natural resources law, 34:4, (2016) : 407-415, http://dx.doi.org/10.1080/02646811.2016.1218133. 28 the treaty on the european union, art. 2. 29 ibid, art. 6. 30 ibid, preambule. global justice: building international and supranational structures on the basis of fundamental rights edgar lammertse 72 | udayana journal of law and culture vol. 01 no.1, january 2017 67 business transactions are progressively carried out on the basis of virtual money and in a virtual trading environment. people do not meet physically on the streets, in the cafes and public places, but by joining virtual communities and groups on the internet. this “dematerialization”31 together with the aforementioned “deterritorialization” causes the difficulty to retrieve the objects and perpetrators of crimes. it is also not so easy to determine the “crime scene” and to find out who the perpetrator is. in many cases, computers and computer systems communicate with each other without any human interference. the real threat is that new forms of crimes have occurred, such as hacking, dissemination of viruses, and attacks on computer systems that can only be committed through ict and where ict itself is the target. these new cyber-crimes can be a big threat, not only to the privacy or goods of individuals, but also to national, international and global communities and in the end to world peace. they can destabilize economies and nations. think of what can happen when criminals or terrorists get access to and power over computer systems that are vital to (atomic) energy supply, worldwide trading and banking or defense. it is obvious that efforts must be made to design and establish international cooperation and legal systems in order to address these threats. v. conclusion what i wanted to show is that global justice asks for transnational and global consensus, cooperation and solutions. we can learn from local wisdom, but the difficulty lies in formulating the right criteria for choosing the appropriate local values and philosophies that qualify for incorporation in judicial regulatory systems. the connection or association with traditional beliefs, religion or spirituality in legal structures is far from commonly accepted and often strongly opposed. in the eyes of many people, governmental and legal structures should be neutral and only be based on modern principles that are commonly accepted. it is not so long ago that in many western european countries, government and legislation were the domain of religion. it is beyond the scope of this article to describe the horrific practices and injustice this has brought and the bloodshed that took place before the people were freed from the yoke of the reign of religion. tradition, spirituality and religion in western europe are seen as a personal matter and as guidance for personal attitude, rather than the basis on which governmental and legal frameworks are built. the situation in many other countries is completely different. in many countries forces are strong to build a nation on the basis of principles and rules of traditions and religions. it is a challenge to combine old wisdoms, traditions, philosophies and believes with modern concepts of justice and fundamental rights. and it demands courage to acknowledge that in the words of former president obama “just because something is a tradition or part of our past does not make it right”. 31 the term ‘dematerialization of crime’ is used, for instance in benjamin noys, psychopatology as a game: j.g ballard and conceptual crime, in nicol, bran,eugene mcnulty,patricia pulham, eds., (crime culture: figuring criminality in fiction and film, continuum library studies, 2011): 48. | 68 bibliography books borchardt, klaus-dieter. the abc of european union law , luxembourg: publications office of the european union, 2010 noys, benjamin. psychopatology as a game: j.g ballard and conceptual crime, in nicol, bran, eugene mcnulty, patricia pulham, eds. crime culture: figuring criminality in fiction and film, continuum library studies, 2011 russell, b. bertrand russell’s best. new york: routledge classics, 2009 journals wallinga, tammo. “the common history of european legal scholarship.”erasmus law review 4, issue 1 (2011): 3. http://www.erasmuslawreview.nl/tijdschrift/ elr/2011/1/elr_2210-2671_2011_004_001_002.pdf ruggie, john gerard. ”territoriality and beyond: problematizing modernity in international relations.”international organization 47, no. 1 (1993): 152-154. http://www.rochelleterman.com/ir/sites/default/files/ruggie%201993.pdf towett, geofrey, peter gutwa oino, and audrey matere, eds. “the female genital mutilation act 2011 of kenya: challenges facing its implementation in kajiado central sub-county, kenya.”international journal of innovation and scientific research10, no. 1 (oct. 2014): 40-49. http://www.ijisr.issr-journals.org/issue.php?issue=19 kiefer, anna. “the thirtieth anniversary of the schengen agreement: retrospective and perspective in light of the migrant crisis ” cornell int’l l.j. online, (2015) vol. 3 http://cornellilj.org/wp-content/uploads/2015/12/anna-kiefer-the-thirtieth-anniversary-of-the-schengen-agreement-3-ciljo-22.pdf damman, jens c. “the righ to leave the eurozone.”texas international law journal 48:125, issue 2 (2013): 126-137. http://www.tilj.org/content/journal/48/ num2/dammann125.pdf reid, colin t. “brexit and the future of uk environmental law.” journal of energy & natural resources law, 34:4 (2016) : 407-415. http://dx.doi.org/10.1080/ 02646811.2016.1218133 global justice: building international and supranational structures on the basis of fundamental rights edgar lammertse 74 | udayana journal of law and culture vol. 01 no.1, january 2017 69 legal documents charter of the united nations constitution of kenya. national council for law reporting with the authority of the attorney general, laws of kenya: constitution of kenya, the official law reports of the republic of kenya, revised edition 2010 international covenant on civil and political rights rome statute of the international criminal court and resolution rc/res.6, http:// www.icc-cpi.int/iccdocs/asp_docs/resolutions/rc-res.6-eng.pdf statute of the international court of justice treaty establishing the european coal and steel community (treaty of paris, 1951) treaty establishing the european economic community (treaty of rome 1967) treaty on european union (maastricht treaty, 1992) treaty of amsterdam amending the treaty of the european union, the treaties establishing the european communities and certain related acts (amsterdam treaty, 1997) treaty of lisbon amending the treaty on european union and the treaty establishing the european economic community (lisbon treaty, 2007) united nations declaration on the rights of indigenous peoples, adopted by the general assembly of the united nations on september 17th 2007, 61/295. internet otto, martin. law. european history online,2011.http://ieg-ego.eu/en/threads/ backgrounds/law shobhith, seth. why these european countries don’t use the euro. investopedia, 2016 http://www.investopedia.com/articles/investing/050515/why-these-europeancountries-dont-use-euro.asp survival international.“the uncontacted indians of brazil.” http://www.survivalinternational.org/tribes/uncontacted-brazil andinformation provided in | 70 http://www.funai.gov.br/ united nations office on drugs and crime. “study on the effects of new information technologies on the abuse and exploitation of children, vienna-new york.” https://www.unodc.org/documents/organized-crime/cybercrime/ study_on_the_effects.pdf university twente news. “ict plays an increasing part in criminal activities: perpetrators are often young, female, and dutch.”https://www.utwente.nl/en/ news/!/2013/3/158372/ict-plays-an-increasing-part-in-criminal-activities _______, https://www.whitehouse.gov/the-press-office/2015/07/26/remarks-president-obama-kenyan-people e-issn 2549-0680 vol. 7, no. 1, january 2023, pp. 1-24 doi: https://doi.org/10.24843/ujlc.2023.v07.i01.p01 this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licenses/by/4.0/) 1 the indian rape law: vocabulary of protest, reactionary legislations and quality of equality culture shruti bedi  university institute of legal studies, panjab university, chandigarh, india; national institute of military justice, washington dc, united states of america abstract the problem of violence perpetrated against women in india is not simple. it is embroiled in the historical subjugation of the ‘weaker sex.’ women have been unable to claim equality in society despite mandatory provisions in the constitution of india and other legislations in their favour. despite numerous amendments to the indian criminal law, rape, one of the most heinous crimes, continues to be committed in india at an alarming rate. the law on rape in india has undergone three phases of amendments, and all precipitated in the aftermath of public fury on account of brutal and heinous incidents of rape. this paper employs the sociolegal approach to assess the efficacy and impact of these amendments in changing social behaviour. it concludes that though the massive public outrage undoubtedly led to radical amendments, it was a knee-jerk reaction that suffered from legislative ambiguities. the increase in the retributive content of the law ultimately resulted in reduced convictions. although law is believed to be an instrument of social change, the amendments in the antirape legislation have been unable to bring about a positive transformation in the existing cultural inequality. keywords: gender; india legislation; rape; women. 1. introduction former judge, the supreme court of the united states of america, ruth bader ginsburg said “i don’t say women’s rights—i say the constitutional principle of the equal citizenship stature of men and women.”1 commenting on the lack of equality culture, simone de beauvoir, in her seminal work, the second sex, writes, “the world has always belonged to males, and none of the reasons given for this have ever seemed sufficient.”2 beauvoir is believed to have been instrumental in spurring the ‘second wave’ of feminism. on the issue of rape and other sexual crimes against women, feminism has a vital role to play. however, it is important to understand that feminism does not refer to the philosophy of women hating men.  email/corresponding author: sbedi@pu.ac.in and dr.shrutibedi@gmail.com 1 american academy of achievement, “ruth bader ginsberg on integrity,” https://achievement.org/video/ruth-bader-ginsburg-20/ 2 simone de beauvoir. the second sex (london: vintage books, 2011), 73. https://doi.org/10.24843/ujlc.2023.v07.i01.p01 http://creativecommons.org/licenses/by/4.0/ mailto:sbedi@pu.ac.in mailto:dr.shrutibedi@gmail.com https://achievement.org/video/ruth-bader-ginsburg-20/ the indian rape law: vocabulary of protest, reactionary legislations and quality of equality culture shruti bedi 2 beauvoir believed in the philosophy of equality and it is this philosophy that needs propagation in deciphering the problem of violence against women.3 on the night of december 16, 2012, a horrifying and brutal gang-rape of a young para-medic student took place in new delhi, india. this barbaric act of five perpetrators resulting in the death of the victim shook the nation. public outrage and fury poured out into the streets in the form of protests and candlelight marches. women broke their silence against the reality of sexual violence and claimed their right to equal citizenship in the freedom to think, live and dress without fear of retribution.4 this public outrage took the form of a movement of feminist activism that challenged the existing patriarchal notions of the indian society and the embedded structural inequality. as a result, the authorities in india not only were compelled to take immediate and robust action against the six accused but also overhaul the criminal justice system including the law on sexual violence against women. the number of rape victims is an insight into the situation in india. from 2001 to 2018, a total of 1,597,466 rape-related crime cases were reported in this country.5 according to the national crime records bureau (ncrb) of india, 31,677 cases of rape were registered in 20216 as opposed to 28,046 in 2020.7 even as recently as 6th october, 2022, a 15-year-old girl was allegedly set on fire by a man accused of raping and impregnating her.8 india prescribes life imprisonment or death penalty as punishment for rape and has made the rape law even more stringent. however, this has not had the desired deterrent effect. south africa reports the highest number of cases of rape (42,289 cases in 2019/2020) in the world.9 it has not been 3 ht correspondent, “it’s time to reclaim the legacy of simone de beauvoir and see feminism for what it is,” https://www.hindustantimes.com/editorials/it-s-time-to-reclaimthe-legacy-of-simone-de-beauvoir-and-see-feminism-for-what-it-is/storyffw9y9pcrzzooysc3qdldo.html 4 vrinda grover, “citadels of power and impunity, disturbed but not dislodged: evaluating the 2013 law reforms in the anti rape law in india” in sexualized violence in the national debate: cross-border observations on india and south africa, eds. melanie verwoerd & claudia lopes (south africa: heinrich böll foundation, 2015), 114. see also suvarna cherukuri, "sexual violence against women, the laws, the punishment, and negotiating the duplicity" laws 10, no. 2 (2021): 3. 5 rakhi dandona, et.al., “administrative data deficiencies plague understanding of the magnitude of rape-related crimes in indian women and girls,” bmc public health 22 (2022): 3. 6 ncrb, “crime in india 2021,” vol. 1 (2021): 218, https://ncrb.gov.in/sites/default/files/cii-2021/cii_2021volume%201.pdf 7 ibid, 206. 8 rhea mogul, swati gupta and manveena suri, “alleged rapist and his mother set teenage girl on fire after learning she was pregnant, indian police say,” https://edition.cnn.com/2022/10/12/india/india-girl-rape-pregnancy-attempted-murderintl-hnk/index.html 9 amanda gouws, “rape is endemic in south africa. why the anc government keeps missing the mark,” https://mg.co.za/opinion/2022-08-09-rape-is-endemic-in-southafrica-why-the-anc-government-keeps-missing-the-mark/ https://www.hindustantimes.com/editorials/it-s-time-to-reclaim-the-legacy-of-simone-de-beauvoir-and-see-feminism-for-what-it-is/story-ffw9y9pcrzzooysc3qdldo.html https://www.hindustantimes.com/editorials/it-s-time-to-reclaim-the-legacy-of-simone-de-beauvoir-and-see-feminism-for-what-it-is/story-ffw9y9pcrzzooysc3qdldo.html https://www.hindustantimes.com/editorials/it-s-time-to-reclaim-the-legacy-of-simone-de-beauvoir-and-see-feminism-for-what-it-is/story-ffw9y9pcrzzooysc3qdldo.html https://ncrb.gov.in/sites/default/files/cii-2021/cii_2021volume%201.pdf https://edition.cnn.com/2022/10/12/india/india-girl-rape-pregnancy-attempted-murder-intl-hnk/index.html https://edition.cnn.com/2022/10/12/india/india-girl-rape-pregnancy-attempted-murder-intl-hnk/index.html https://mg.co.za/opinion/2022-08-09-rape-is-endemic-in-south-africa-why-the-anc-government-keeps-missing-the-mark/ https://mg.co.za/opinion/2022-08-09-rape-is-endemic-in-south-africa-why-the-anc-government-keeps-missing-the-mark/ udayana journal of law and culture vol. 7 no. 1, january 2023 3 able to reduce the levels of rape. in usa, over 40% of the women have experienced sexual violence.10 the problem of violence perpetrated against women is not simple. it is embroiled in historic subjugation of the ‘weaker sex.’ women have been unable to claim equality in society despite the mandatory provisions under the law in their favour. consequently, a latent bias exists against women in the sphere of prosecution of crimes. the lack of financial independence and security has further added to the subjugation of women. the words of mahbub-ul-haq hold promise during such moments and engender hope for the future: “as we approach the 21st century, we hear the quiet steps of a rising revolution for gender equality... it is quite clear that the 21st century will be a century of much greater gender equality than the world has ever seen before.”11 women in india have continued to suffer on various fronts, including bodily integrity, physical and mental health, education, relationships in society, work environment, etc. the de facto equality guaranteed to them by the constitution has yet to be converted into equality in real terms. a joint effort of the individual in the society and the state seem to be the only means to achieve a culture of equality. the need for an efficient law enforcement and justice delivery system, along with every citizen of india performing his/her fundamental duties, must be emphasised. despite numerous amendments to the indian criminal law, rape continues to be committed in india at an alarming rate. more than 1,100 cases of rape have been registered in the first six months of the year in delhi itself. the rise has been on account of “active registration and the introduction of women-friendly helplines and booths.”12 however, the increase in the reported cases of rape is not the only cause for concern. many such cases still go unreported due to the societal pressure.13 in a poll conducted in indonesia, it was seen that more than 90% of the rape cases go unreported as the victims are afraid of being blamed for the act.14 the societal challenge is that despite the changes in legislation, the rape victim continues to face stigma from the society and the system in general. the criminal law in india comprises of the indian penal code, 1860 (ipc); the criminal procedure code, 1973 (crpc); and the indian evidence 10 jenifer kuadli, “32 shocking sexual assault statistics for 2022,” https://legaljobs.io/blog/sexual-assault-statistics/ 11 the mahbub ul haq human development centre. human development in south asia, 2000: the gender question (pakistan: oxford university press, 2000), v. 12 jignasa sinha, “delhi recorded 6 rape cases every day this year: police data,” https://indianexpress.com/article/cities/delhi/delhi-rape-cases-2022-police-data8081517/ 13 rajeev ranjan and tanya grover, “comparison and critical analysis on rape laws in india (before and after criminal law amendment act 2013),” indian journal of creative research thoughts 6, no. 2 (2018): 178. 14 beh lih yi, “over 90 percent rape cases go unreported in indonesia: poll,” https://www.reuters.com/article/us-indonesia-crime-women-iduskcn1051sc https://legaljobs.io/blog/sexual-assault-statistics/ https://indianexpress.com/article/cities/delhi/delhi-rape-cases-2022-police-data-8081517/ https://indianexpress.com/article/cities/delhi/delhi-rape-cases-2022-police-data-8081517/ https://www.reuters.com/article/us-indonesia-crime-women-iduskcn1051sc the indian rape law: vocabulary of protest, reactionary legislations and quality of equality culture shruti bedi 4 act, 1872 (iea), primarily.15 there are other laws like the protection of children from sexual offences act, 2012 (pocso) which also form a part of this basic criminal law structure which will be referred to in the paper. the law on rape in india has undergone three phases of amendments, all which were precipitated in the aftermath of the public fury on account of brutal and heinous incidents of rape. however, despite the indian criminal law being made more stringent, the situation at the ground level has not improved. the massive public outrage undoubtedly led to radical amendments, a knee-jerk reaction that suffers from legislative ambiguities and defeats the objective of justice. the paper traverses the path of highlighting the three infamous and brutal cases of rape in india that led to mass-level public protests, which in turn precipitated the passing of the amendments in criminal law. it analyses the effectiveness and the repercussions of these amendments. the reason behind the inability of the amendments to deter the occurrence of such heinous crimes is scrutinised. this article's endeavour is to discuss the impetus behind the perpetration of sexual offenses against women, the societal attitude in india towards women, and the ineptitude of the anti-rape legislation to bring about a positive transformation in the inequality culture. this paper concludes that increasing the punitive content in rape legislation does not result in 'deterrence' in the commission of rapes and the protection of women in society. conclusively, change in law does not necessarily bring about change in societal mindset. considering law plays a significant role in any society as it helps speed the process of social reform, the article adopts a socio-legal approach to examine and explore the dilemma in societal perceptions of gender in india, the lack of equality culture, and the lacunae in the indian rape law. socio-legal research is a type of study wherein the “science of law meets the science of society.” herein a multidisciplinary approach is adopted to “analyse and interpret the law, the legal phenomenon, the relationship between these two and also their relationship with the society in its widest sense.”16 the paper follows the doctrinal methodology that examines the legal norms in the indian national legislations and judicial pronouncements on rape. it conducts a social audit of the law to appreciate the social factors that impacted the enactment of the amendment in indian criminal law. the gap between the ideal law on rape and social reality is sought to be analysed. this legal writing relies on primary and secondary sources of information like legislation, rules, regulations, reports, and the authoritative decisions of the courts, as well as information from legal commentaries, journal articles, and websites. 15 shruti bedi, “bodily integrity and the extensity of women’s human rights under indian criminal law,” in the assurance of women’s human rights in criminal justice, eds. wu guang hong et al. (hanoi: vietnam national university, 2021), 229-230. 16 raghav kansal, “the basics of socio-legal research” indian journal of law and public policy. https://ijlpp.com/3688-2/ https://ijlpp.com/3688-2/ udayana journal of law and culture vol. 7 no. 1, january 2023 5 2. result and analysis 2.1. rape: societal, cultural and legal perspectives as reflected in the justice verma committee (jvc) report,17 the societal stigma ensures that the victim of rape remains a victim throughout her life. the report categorically notes, “in our tradition bound society, structured on the basis of conservative values, when a woman is subjected to sexual assault in any form, it translates into a multiple crime. she is raped at home (literally and figuratively) and in public, followed by demeaning medical examination, examination, and cross-examination by the police and in court, in salacious media reports, and in the insensitive response of society, including family and acquaintances. in sum, the victim suffers intermittent rape in full public glare.”18 in addition to this humiliation, the society’s patriarchal structure along with the embedded inequities of social status and caste prejudices warrants gender injustice. the state has been mandated by the constitution of india to secure “social order in which justice, social, economic and political, shall inform all the institutions of national life”19 and further “to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people.”20 however a change in law is not the answer to eliminate the ‘rape culture’, it is the change in the mindset of the society which will be the harbinger of gender equality and justice. rape culture as a phenomenon is related to “slut-shaming and victim blaming, wherein rape victims are considered to be at fault for being raped.”21 the reason behind such a culture is the ‘objectification of women’. unfortunately, “violence against women has been problematised, naturalised, and trivialised.”22 physical violence against women takes the form of rape, wife-battering, marital rape, honour killings, female genital mutilation, forced prostitution and pornography, etc. additionally, the disposal and conviction rates for crimes against women are low. rape speaks to a “pervasive, deeply embedded misogyny whose roots run bedrock-deep in our society and are directly proportional to the extent of our denial of this very misogyny.”23 victims of rape are hesitant to identify 17 justice verma committee was appointed by the central government of india notification no. s0 (3003) e, dated december 23, 2012 in the aftermath of the nirbhaya gang-rape case, with the mandate to suggest amendments in the indian criminal law on rape and to provide for quicker trial and enhanced punishment for criminals committing sexual assault of extreme nature against women. report of the committee on amendments to criminal law, january 23, 2013 (justice verma committee report). https://adrindia.org/sites/default/files/justice_verma_amendmenttocriminallaw_jan2013 .pdf 18 ibid., 14. 19 the constitution of india, 1950, art. 38(1). 20 ibid., art. 38(2). 21 prabhat tyagi, “prevalence of rape culture in india: where are we heading?,” international journal of law management & humanities 3, no. 3 (2020): 834. 22 jean chapman, “violence against women in democratic india: let's talk misogyny,” social scientist 42, no. 9/10 (2014): 50. 23 pubali ray chaudhuri, “india hates women,” https://msmagazine.com/2013/01/07/being-female-in-india-a-hate-story/. https://adrindia.org/sites/default/files/justice_verma_amendmenttocriminallaw_jan2013.pdf https://adrindia.org/sites/default/files/justice_verma_amendmenttocriminallaw_jan2013.pdf https://msmagazine.com/2013/01/07/being-female-in-india-a-hate-story/ the indian rape law: vocabulary of protest, reactionary legislations and quality of equality culture shruti bedi 6 their experience as rape. this is primarily due to the society that blames the rape victim and denigrates them as damaged goods. unfortunately, as pointed out by charlotte l. mitra, the initial rape laws were worded so as to safeguard “masculine pride in the exclusive possession of a sexual object.”24 history shows that if a woman was abducted and sexually violated, the crime was not against the woman but was considered as a violation or theft of a woman against the consent of her father, husband, brother, son or guardian.25 rape is defined by brownmiller as “conscious process of intimidation by which all men keep all women in a state of fear.”26 it is a mechanism through which men perpetuate their dominance over women. one of the achievements of mobilisation of peaceful public protest and the feminist activism post the 2012 delhi gang-rape was that rape came to be named as an act of power, and not sex.27 it is time to strengthen our understanding and challenge the traditional patriarchal definition of rape. this will pave the way for identifying rape as an assault on individual autonomy that will result in gender-neutral legislation and procedure. the discriminatory procedures of a rape trial where the integrity of a witness is under question, need to be eliminated so that rape is assessed as a crime and not as an issue of shame. andre beteille, a well-respected indian sociologist says that it is our social and cultural conditions that intensify or perpetuate rape.28 the reason behind such acts is the existing social structure. like other nations, rape in india is an outcome of gender inequality and is used as a tool to impose social boundaries for women.29 since rape is linked to social inequality and social hierarchy, certain categories of women and men are more vulnerable. because of their lower social standing, the dalit and tribal women are treated like slaves without human rights and therefore are raped by upper caste men.30 women and girls are sexually assaulted by persons who are known to them, family members, friends, and neighbours.31 rape in india is defined under its most important piece of criminal legislation, the ipc. section 375 ipc32 defines it as penile penetration into the vagina, which makes it a gender-specific crime, where only men can be 24 see sarbani guha ghosal, “socio-political dimensions of rape,” the indian journal of political science 70, no. 1 (2009): 109. 25 ibid. 26 susan brownmiller, against our will: men, women and rape (new york: simon & schuster, 1975), 6. 27 pratiksha baxi, “understanding rape law reform,” yojana 58 (2014): 38. 28 adfer rashid shah, “understanding delhi rape horror and underlying perspectives,” the tibet journal 38 no. 1-2 (2013): 48. 29 poulami roychowdhury, “rape and the seduction of popular politics,” gender and society 30, no. 1 (2016): 81. 30 ranjan and grover, op cit., 182. 31 pti, “98% of delhi’s rape victims were relatives or acquaintances of accused, say police,” https://theprint.in/india/98-of-delhis-rape-victims-were-relatives-oracquaintances-of-accused-say-police/547263/ 32 the indian penal code, 1860, section 375. https://www.indiacode.nic.in/showdata?actid=ac_cen_5_23_00037_186045_1523266765688&orderno=424 https://theprint.in/india/98-of-delhis-rape-victims-were-relatives-or-acquaintances-of-accused-say-police/547263/ https://theprint.in/india/98-of-delhis-rape-victims-were-relatives-or-acquaintances-of-accused-say-police/547263/ https://www.indiacode.nic.in/show-data?actid=ac_cen_5_23_00037_186045_1523266765688&orderno=424 https://www.indiacode.nic.in/show-data?actid=ac_cen_5_23_00037_186045_1523266765688&orderno=424 udayana journal of law and culture vol. 7 no. 1, january 2023 7 perpetrators and only women can be victims of rape.33 the law does not categorise marital rape as rape, except where the wife is under 15 years of age.34 interestingly, indonesia recently in april 2022 passed the longawaited law against sexual violence. the new law extends the definition of rape to cover marital rape, and recognizes men and boys as victims of sexual violence.35 the criminal law in india has often been criticised for its inability to protect women who have suffered from different sexual assaults. 36 the law has subsequently undergone various amendments; however, the ‘deterrence’ effect remains invisible. the increase in the harshness of the sentences and punishments have not had the desired effect in reducing the existing inequality culture. 2.2. public protests and imperfect legislations reforms and amendments in the anti-rape law in india did not come about due to the initiative of the parliament but were brought about by the outpouring of public fury after four incidents of rape that shook the nation. the criminal (amendment) act (claa) 1983 was the result of a nationwide protest after the indian supreme court’s infamous decision in tukaram v. state of maharashtra.37 the claa 2013 was triggered on account of public protests against the brutal gang-rape of a young woman in new delhi. similarly, the claa 2018 was the consequence of public fury after the two rapes of minor girls in unnao and kathua. every campaign against violence against women has resulted in enactment of new legislations, with no positive outcome. public outrage is not always the best source of change in public policy as it detracts from the quality of the required change in legislation. public disobedience movements where emotions are strong are recognised sources of activism to bring in change; however, they must be given a reasonable response.38 the public fury emanating from these four incidents and the resulting impulsive criminal law amendments are 33 geetanjali gangoli, “controlling women’s sexuality: rape law in india” in international approaches to rape, eds. nicole westmarland and geetanjali gangoli (policy press, 2011), 103. see also soyonika gogoi, “consent matters: a comparative study of rape laws in india, uk and canada,” international journal of law mangement and humanities 5 no. 1 (2022): 1399, 1405. 1395-1405 34 the indian penal code, 1860, section 375, exception ii. see also the discussion regarding this issue in t.s. sathyanarayana rao, nilesh shah, and chittaranjan andrade, “marital rape in india,” journal of psychosexual health 4, no.4 (2022): 221-222. 35 chad de guzman, “after a teacher was convicted of raping 13 girls, indonesia finally passed sexual violence reform,” https://time.com/6166853/indonesia-sexualviolence-law/ 36 k.i. vibhute, “victims of rape and their right to live with human dignity and to be compensated: legislative and judicial responses in india,” journal of the indian law institute 41, no. 2 (1999): 222. 37 tukaram v. state of maharashtra, (1979) 2 scc 143. 38 tamara abdelwahed, stella gaumert and laura konrad, “the influence of public outrage on law making,” law and politics in africa, asia and latin america 51, no. 4 (2018): 481-482. https://time.com/6166853/indonesia-sexual-violence-law/ https://time.com/6166853/indonesia-sexual-violence-law/ the indian rape law: vocabulary of protest, reactionary legislations and quality of equality culture shruti bedi 8 scrutinised to decipher the reason behind the lack of reduction in the number and brutality of rapes in india. 2.2.1. mathura rape case, 1972 and the criminal (amendment) act 1983 in the first incident, a minor girl was raped by two police officials in police custody on 26th march 1972 in the desai gunj police station in maharashtra.39 the sessions court did not hold the defendants guilty as it stated that mathura (rape victim) had willingly given her consent to it as she was habituated to it. although on appeal the high court held the two accused guilty, the supreme court acquitted the two policemen in 1983. they held that mathura was “habituated to sex”40 and that she was not subjected to any “fear or compulsion such as would justify any inference of “passive submission”.”41 her claims were discredited based on her sexual history and lack of visible resistance. the verdict spurred law professors from delhi university to write an open letter to the supreme court criticising the notion of consent that equated submission to consent.42 this further led to agitation by women’s movement ultimately resulting in the first phase of amendments to the rape law.43 for the first time since 1960, the rape law was amended through claa 1983 as a reaction to the demands of the public movement.44 “custodial rape”45 came to be located at the “intersection of state power and gender inequality”46 through the amendment. instances of ‘aggravated rape’ were added to section 376, ipc.47 a new section 114(a) was added to the indian evidence act (iea), 1872 wherein the burden of proving consent was shifted to the accused in cases of aggravated rape when the victim stated that she did not consent to the intercourse.48 section 228a, ipc was added which makes it punishable to disclose the identity of the victim of rape. this case is a clear example of the fact that public protests have not only led to reforms in the law on sexual offences in india but also the struggle to change the antiquated rape law has facilitated a wider discourse in society on the issue.49 39 jyoti yadav, “a rape forgotten—50 years ago, mathura was denied justice. then society betrayed her,” https://theprint.in/features/a-rape-forgotten-50-years-ago-mathurawas-denied-justice-then-society-betrayed-her/972230/ 40 tukaram, op cit., para 10. 41 ibid., para 14. 42 upendra baxi, et.al., "an open letter to the chief justice of india." supreme court cases 4, no. j17 (1979): 17. 43 flavia agnes, “protecting women against violence? review of a decade of legislation, 1980-89,” economic and political weekly 27, no. 17 (1992): ws20. 44 pratiksha baxi, “rape, retribution, state: on whose bodies?,” economic and political weekly 35, no. 14 (2000): 1197. 45 the criminal law amendment act, 1983, section 376c, ipc. 46 grover, op cit., 115. 47 the indian penal code, 1860, sections 376 a to d. 48 the indian evidence act, 1872, section 114a. 49 abdelwahed, gaumert, and kondrad, op cit., 486. https://theprint.in/features/a-rape-forgotten-50-years-ago-mathura-was-denied-justice-then-society-betrayed-her/972230/ https://theprint.in/features/a-rape-forgotten-50-years-ago-mathura-was-denied-justice-then-society-betrayed-her/972230/ udayana journal of law and culture vol. 7 no. 1, january 2023 9 2.2.2. nirbhaya case, 2012 and the criminal (amendment) act 2013 the ‘nirbhaya case’, also known as the ‘delhi gang-rape case’50 is about a 23-year-old female physiotherapist who was brutally gang-raped on december 16, 2012 by five men and a minor on a moving bus in new delhi. the inhumanity of the act was visible when the victim’s intestines were pulled out using an iron rod. this nirbhaya (or braveheart as she popularly came to be called)51 lost the struggle for life two weeks later. one of the accused was reported to have committed suicide in jail, while four adults were sentenced to death and one juvenile was punished with three years in a juvenile facility.52 more significantly, the brutality of the act inspired a mass scale movement against sexual violence. the widespread agitation and protests compelled the legislature to make the rape law more stringent by introducing harsher punishments besides widening the definition of ‘rape’.53 justice j.s. verma, justice leila seth and gopal subramaniam, eminent members of the legal fraternity comprised the jvc that was set up to suggest amendments and changes to the law on sexual offences.54 the jvc submitted its report on january 23, 2013.55 because of the report submitted by the committee, claa 2013 was enacted to provide for amendments to various laws related to sexual offences and crimes against women. it contained amendments to the ipc, 1860; the crpc, 1973; the iea, 1872; and the pocso, 2012.56 a. definition of rape widened prior to the amendment, the definition of ‘rape’ under the ipc was coercive non-consensual sexual intercourse between a man and a woman. the claa 2013 enlarged the scope of the offence of rape to include acts other than penile-vaginal penetration.57 with this the notion of bodily integrity was given its due place under law, reflecting the violations suffered by women.58 50 state govt of nct of delhi v. ram singh & ors., (2013) sc 114. 51 the name nirbhaya was given to her by ‘the times of india’ meaning ‘braveheart’ or ‘fearless’. the times of india, “support grows for nirbhaya,” https://timesofindia.indiatimes.com/city/bengaluru/support-grows-fornirbhaya/articleshow/17738427.cms 52 law insider, “landmark judgements that shaped the rape laws in india,” https://www.lawinsider.in/columns/landmark-judgements-that-shaped-the-rape-laws-inindia#:~:text=the%20objective%20of%20section%20375,more%20serious%20crime%20tha n%20murder 53 ranjan and grover, op cit., 180. 54 justice verma committee report, loc cit. 55 ibid. 56 abdelwahed, gaumert, and kondrad, op cit., 491. 57 the criminal law amendment act, 2013, section 375, ipc. 58 grover, op cit., 117. https://timesofindia.indiatimes.com/city/bengaluru/support-grows-for-nirbhaya/articleshow/17738427.cms https://timesofindia.indiatimes.com/city/bengaluru/support-grows-for-nirbhaya/articleshow/17738427.cms https://www.lawinsider.in/columns/landmark-judgements-that-shaped-the-rape-laws-in-india#:~:text=the%20objective%20of%20section%20375,more%20serious%20crime%20than%20murder https://www.lawinsider.in/columns/landmark-judgements-that-shaped-the-rape-laws-in-india#:~:text=the%20objective%20of%20section%20375,more%20serious%20crime%20than%20murder https://www.lawinsider.in/columns/landmark-judgements-that-shaped-the-rape-laws-in-india#:~:text=the%20objective%20of%20section%20375,more%20serious%20crime%20than%20murder the indian rape law: vocabulary of protest, reactionary legislations and quality of equality culture shruti bedi 10 b. use of force and consent over a period, the general definition of rape has changed from the requirement of use of force or violence to the requirement of lack of consent.59 in majority of the legal systems around the world, both force and lack of consent constitute the dual requirement for the offence of rape. in india as well, the procedure is to use medical evidence to look for resistance on the part of the victim in order to verify the victim’s claim. but, in many cases consent is adduced simply on the absence of refusal or resistance by the victim.60 in fact, many times sexual consent of a woman has been implied from the manner of her dress or her behaviour.61 such an attitude puts a woman’s integrity under question, thereby treating her as the culprit instead of a victim. rape survivors are indelibly marked with shame and stigma, resulting in a life devoid of dignity in the society. in any rape trial, it is extremely difficult to establish consent of the victim or the absence thereof. claa 2013 now specifies that “consent means an unequivocal voluntary agreement when a woman by words, gestures or any other form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act”,62 “provided that the woman who does not physically resist the act of penetration shall not by reason only of that fact, be regarded as consenting to the sexual activity”.63 the amendments of sections 53a, iea mandates that if a woman’s consent is under question, her character or previous sexual experience would not be relevant to the quality of her consent.64 section 114a, iea states that if a woman has allegedly been raped and states that she did not give her consent, the court shall not presume otherwise.65 c. marital rape and age of consent unfortunately, even though the jvc recommended that the exception for marital rape should be removed,66 claa 2013 did not incorporate it. sexual intercourse by the husband against the consent of the wife who is above fifteen years of age is not considered rape.67 consequently, a man can rape his wife without it being categorised as a crime, even if she is not an adult and even though claa 2013 raised the age of consent to 18 years under section 375, ipc. claa 2013 only made the concession to extend the 59 united nations. handbook for legislation on violence against women (new york: united nations, 2010), 27. 60 rebecca whisnant, “feminist perspectives on rape,” the stanford encyclopedia of philosophy (fall 2021), ed. edward n. zalta, https://plato.stanford.edu/archives/fall2021/entries/feminism-rape/ 61 editor, “a critique on anti-rape laws in india,” https://journal.rostrumlegal.com/a-critique-on-anti-rape-laws-in-india/#_ednref9 62 the criminal law amendment act, 2013, explanation ii, section 375, ipc. 63 ibid., proviso to explanation ii, section 375, ipc. 64 ibid., section 53a, iea. 65 ibid., section 114a, iea. 66 justice verma committee report, op cit., 117. 67 indian penal code, 1860, section 375, exception ii. https://plato.stanford.edu/archives/fall2021/entries/feminism-rape/ https://journal.rostrumlegal.com/a-critique-on-anti-rape-laws-in-india/#_ednref9 udayana journal of law and culture vol. 7 no. 1, january 2023 11 purview of the law to rape in case of a wife living separately, albeit entailing a shorter prison sentence. the jvc report notes that “the immunity has been withdrawn in most major jurisdictions”68 including english law which forms the basis of our law. however, exception ii, section 375, ipc was declared illegal by the supreme court of india in october 2017, in as far as it applies to wives under the age of 18 years.69 recently in may 2022, the delhi high court delivered a split verdict in a case challenging the marital rape exception under ipc. since the two judges were divided in their opinion, the marital rape exception continues on the books.70 on september 29, 2022, the supreme court of india in x v. principal secretary, health and family welfare department, govt of nct of delhi, stated that the meaning of rape must be held to include ‘marital rape’ for the purpose of abortion under the medical termination of pregnancy act, 1971.71 hopefully, this will pave the way for marital rape being accepted as rape under the indian criminal law. contrarily, the protection of women from domestic violence act, 2005, provides for ‘sexual abuse’ as a form of domestic violence. this anomaly and conflict between the two legislations is a cause for concern and a subject of future law reform.72 further, since the age of consent was raised to 18, this means that ‘consensual sex’ between the age of 16 and 18 years is statutory rape. such provisions lead to misuse of the law as is evidenced by five studies based on reviews of district court cases of sexual assault filed under pocso in delhi, mumbai, and lucknow between 2013 and 2016. almost 54% of rape cases were of ‘consensual sex’ between young persons.73 the disruptive impact of criminal law on cases of consensual sex and other similar relationships is clearly visible.74 d. medico-legal examination the issue of whether rape has taken place or not is a legal issue to be determined by the doctors. the medical examination report is therefore only required to record the medical findings.75 despite clear international legal guidelines to the contrary, the authorities used to routinely conduct the ‘two-finger test’ to assess the size of the vaginal introitus, the elasticity of the 68 justice verma committee report, op cit., 113. 69 independent thought v. union of india and anr., (2017) w.p. (c) no. 382 of 2013. https://indiankanoon.org/doc/87705010/ 70 rit foundation v. uoi and other connected matters 2022 livelaw (del) 433. 71 padmakshi sharma, “rape includes "marital rape" for the purposes of mtp act, wife conceiving out of forced sex can seek abortion: supreme court,” https://www.livelaw.in/top-stories/rape-includes-marital-rape-for-the-purposes-of-mtpact-wives-conceiving-out-of-forced-sex-can-seek-abortion-supreme-court210551?infinitescroll=1 72 grover, op cit., 117. 73 amita pitre and lakshmi lingam, “age of consent: challenges and contradictions of sexual violence laws in india,” sexual and reproductive health matters 29, no. 2 (2021): 7. 74 swagata raha and shruthi ramakrishnan, “changing the age of consent,” https://www.thehindu.com/opinion/op-ed/changing-the-age-ofconsent/article65849243.ece 75 justice verma committee report, op cit., 274-275. https://indiankanoon.org/doc/87705010/ https://www.livelaw.in/top-stories/rape-includes-marital-rape-for-the-purposes-of-mtp-act-wives-conceiving-out-of-forced-sex-can-seek-abortion-supreme-court-210551?infinitescroll=1 https://www.livelaw.in/top-stories/rape-includes-marital-rape-for-the-purposes-of-mtp-act-wives-conceiving-out-of-forced-sex-can-seek-abortion-supreme-court-210551?infinitescroll=1 https://www.livelaw.in/top-stories/rape-includes-marital-rape-for-the-purposes-of-mtp-act-wives-conceiving-out-of-forced-sex-can-seek-abortion-supreme-court-210551?infinitescroll=1 https://www.thehindu.com/opinion/op-ed/changing-the-age-of-consent/article65849243.ece https://www.thehindu.com/opinion/op-ed/changing-the-age-of-consent/article65849243.ece the indian rape law: vocabulary of protest, reactionary legislations and quality of equality culture shruti bedi 12 vagina or the nature and tear on the hymen.76 such practices lead to the inference that the rape victim is habituated to sex, thereby bringing past sexual history and along with it prejudice, into the rape trials. the apex court in 2013 held that “medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence.”77 the court further held that “undoubtedly, the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.”78 it believed that even if the report is affirmative, it cannot ipso facto, give rise to presumption of consent.” the government has banned this test since march 2014.79 it is indeed ironical that medical evidence which is considered to be objective and scientific is in reality plagued with cultural bias in matters of rape. such medical tests do not have the ability to prove the occurrence of rape beyond reasonable doubt. they only question the victim’s claim by raising a presumption that “women frequently make false allegations of rape.”80 strangely medical evidence simply banks on signs of injuries or the lack thereof to determine a woman’s lack of consent. such attitude negates and overlooks those categories of rapes that occur in a non-violent manner. e. punishment the public protests demanded the stringent punishments of castration81 or death for the offence of rape. however, the women’s movement did not support such demands.82 this was due to the belief that death penalty is neither a deterrent nor an effective or ethical response to these acts of sexual violence. it was stated that “the most important factor that can act as a deterrent is the certainty of punishment, rather than the severity of its form.”83 consequently, the jvc resisted prescribing the death penalty generally,84 but introduced in three circumstances, i.e. where the injury inflicted in the course of the commission of the rape caused the woman to die, or be in a persistent vegetative state;85 and for repeat 76 grover, op cit., 119-120. 77 lillu @ rajesh & anr vs state of haryana on 11 april, 2013, criminal appeal no. 1226 of 2011, para 12. https://indiankanoon.org/doc/78844212/ 78 ibid., para 13. 79 pratiksha baxi (2014), op cit., 40. 80 rostrum’s law review, loc cit. 81 the justice verma committee did not recommend the punishment of castration stating that “castration fails to treat the social foundations of rape which is about power and sexually deviant behaviour.” justice verma committee report, op cit., 253. 82 nivedita menon, “statement by women’s and progressive groups and individuals condemning sexual violence and opposing death penalty,” https://kafila.online/2012/12/24/statement-by-womens-and-progressive-groups-andindividuals-condemning-sexual-violence-and-opposing-death-penalty/; also see pratiksha baxi (2014), op cit., 39. 83 menon, ibid. 84 justice verma committee report, op cit., 245. 85 the indian penal code, 1860, section 376a. https://indiankanoon.org/doc/78844212/ https://kafila.online/2012/12/24/statement-by-womens-and-progressive-groups-and-individuals-condemning-sexual-violence-and-opposing-death-penalty/ https://kafila.online/2012/12/24/statement-by-womens-and-progressive-groups-and-individuals-condemning-sexual-violence-and-opposing-death-penalty/ udayana journal of law and culture vol. 7 no. 1, january 2023 13 offenders.86 to appease the outcry, claa 2013 also introduced imprisonment for the remainder of the accused’s natural life, as a sentence. on similar lines, the indonesian president had approved harsher punishment for child sex offenders after the brutal gang-rape and murder of a schoolgirl. the law added tougher punishments for child sex offenders which includes the maximum penalty of death and chemical castration.87 the justification for this harsh punishment was that such sexual crimes against children threaten the lives of children.88 the bill had been languishing in the legislature since 2016 and was finally passed in april 2022.89 such punitive moves however lead to adverse consequences such as a reduced rate of conviction. in a study conducted by the indian law review journal, researchers examined 1,635 rape judgments from trial courts of delhi pronounced between 2013 and 2018. it was found that out of the 909 cases adjudicated under the new law, only 5.72% resulted in conviction.90 innumerable cases of rape and murder, where the capital punishment has been awarded, have failed to produce any effect of deterrence. in fact, the possibility of women being killed, mutilated, burnt or terrorised is likely to increase on account of harsher punishments.91 f. absence of gender neutrality the claa 2013 failed to make rape a gender-neutral offence. this is a noticeable lacuna in the substantive law as it fails to provide protection to transgenders and men from sexual violence. this is so because many times sexual minorities92 and men93 are subjected to sexual assault and abuse especially at police stations or jails. the jvc recommendation94 to make the category of the victim, gender-neutral was rejected. the definition of rape opts for specificity of both the victim and the perpetrator.95 accordingly, rape is an offence in india only when the victim 86 the indian penal code, 1860, section 376e. 87 rebecca henschke, “indonesia approves death penalty for child rapists,” https://www.bbc.com/news/world-asia-36385909 88 the guardian, “indonesia introduces death penalty and chemical castration for paedophiles,” https://www.theguardian.com/world/2016/may/26/indonesia-introducesdeath-penalty-and-chemical-castration-for-paedophiles. 89 niniek karmini, “‘long-awaited law’: indonesia passes law against sexual violence,” https://www.csmonitor.com/world/asia-pacific/2022/0412/long-awaited-lawindonesia-passes-law-against-sexual-violence 90 kanu sarda, “tougher anti-rape law led to lower conviction, says study,” https://www.newindianexpress.com/thesundaystandard/2020/jun/14/tougher-antirape-law-led-to-lower-conviction-says-study-2156264.html 91 baxi (2014), op cit., 38. 92 suresh bada math and shekhar p. seshadri, “the invisible ones: sexual minorities,” indian journal of medical research 137, no. 1 (2013): 4-6. 93 jagbir singh malik and anuradha nadda, “a cross-sectional study of genderbased violence against men in the rural area of haryana, india,” indian journal of community medicine 44, no. 1 (2019): 35-38. 94 justice verma committee report, op cit., 416. 95 baxi (2014), op cit., 40. https://www.bbc.com/news/world-asia-36385909 https://www.theguardian.com/world/2016/may/26/indonesia-introduces-death-penalty-and-chemical-castration-for-paedophiles https://www.theguardian.com/world/2016/may/26/indonesia-introduces-death-penalty-and-chemical-castration-for-paedophiles https://www.csmonitor.com/world/asia-pacific/2022/0412/long-awaited-law-indonesia-passes-law-against-sexual-violence https://www.csmonitor.com/world/asia-pacific/2022/0412/long-awaited-law-indonesia-passes-law-against-sexual-violence https://www.newindianexpress.com/thesundaystandard/2020/jun/14/tougher-anti-rape-law-led-to-lower-conviction-says-study-2156264.html https://www.newindianexpress.com/thesundaystandard/2020/jun/14/tougher-anti-rape-law-led-to-lower-conviction-says-study-2156264.html the indian rape law: vocabulary of protest, reactionary legislations and quality of equality culture shruti bedi 14 is a woman. this reflects the societal acceptance of one gender’s ownership and right to identity over the other.96 2.2.3. unnao case, 2017 and kathua case, 2018 and the criminal (amendment) act 2018 rape against minor girls has been a growing cause for concern in india. two heinous incidents led to the enactment of claa 2018. in the unnao case, in 2017, a 17-year-old girl was kidnapped and raped by a former member legislative assembly (mla) kuldeep singh sengar, along with his brother and other men. later the father of the girl was arrested in an arms case, where he was beaten up in custody and resultantly died.97 subsequently, there was a serious car accident in which the victim was injured severely and her two aunts died. the case provoked a serious reaction from the public. the apex court in this matter transferred the unnao rape case from the lucknow court to the delhi court.98 the case ultimately resulted in the conviction of the mla with life imprisonment and a fine of rs. 25 lakhs to be paid to the victim.99 in the kathua rape case, an 8-year-old girl was raped by six men for a week in kathua, jammu & kashmir, and thereafter she was murdered.100 the minor girl was a muslim and the perpetrators in the case were hindus. this became an issue of communal politicking and religion was dragged into this heinous crime. due to the heightened communal tension in the area, the apex court decided to transfer the case from jammu & kashmir to punjab, in order to ensure a fair trial.101 three of the main accused were sentenced to life imprisonment while the rest were awarded a five-year sentence.102 96 caroline zielinski, “why women are still the property of men,” https://www.dailytelegraph.com.au/rendezview/why-women-are-still-the-property-ofmen/news-story/b18f0a4d456db6967e7c05f4f309604f 97 web desk, “unnao rape and murder: no judge to hear kuldeep singh sengar case,” https://www.indiatoday.in/news-analysis/story/unnao-rape-and-murder-no-judge-to-hear-kuldeepsingh-sengar-case-1575728-2019-07-31 98 india news, “court verdict in unnao rape case against kuldeep sengar likely today,” https://www.hindustantimes.com/india-news/court-verdict-in-unnao-rape-caseagainst-kuldeep-sengar-likely-today/story-8avdmeud3ogav1uatbhcfi.html 99 tejaswini mallick, “an extensive study of rape laws in india,” https://articles.manupatra.com/article-details/an-extensive-study-of-rape-laws-in-india. 100 nishu singh, “kathua rape case: critical analysis of pocso,” international journal of advanced legal research, https://ijalr.in/kathua-rape-case-critical-analysis-ofpocso/ 101 bhadra sinha, “supreme court transfers kathua rape and murder case to punjab’s pathankot court, rules out cbi probe,” https://www.hindustantimes.com/indianews/supreme-court-transfers-kathua-rape-and-murder-case-to-punjab-s-pathankotcourt/story-dwddtg1ft07cjw5lomeswo.html 102 express web desk, “kathua rape case verdict highlights: three main accused sentenced to life imprisonment, 5-year jail term for others,” https://indianexpress.com/article/india/kathua-rape-murder-case-verdict-live-updates5772581/ https://www.dailytelegraph.com.au/rendezview/why-women-are-still-the-property-of-men/news-story/b18f0a4d456db6967e7c05f4f309604f https://www.dailytelegraph.com.au/rendezview/why-women-are-still-the-property-of-men/news-story/b18f0a4d456db6967e7c05f4f309604f https://www.indiatoday.in/news-analysis/story/unnao-rape-and-murder-no-judge-to-hear-kuldeep-singh-sengar-case-1575728-2019-07-31 https://www.indiatoday.in/news-analysis/story/unnao-rape-and-murder-no-judge-to-hear-kuldeep-singh-sengar-case-1575728-2019-07-31 https://www.hindustantimes.com/india-news/court-verdict-in-unnao-rape-case-against-kuldeep-sengar-likely-today/story-8avdmeud3ogav1uatbhcfi.html https://www.hindustantimes.com/india-news/court-verdict-in-unnao-rape-case-against-kuldeep-sengar-likely-today/story-8avdmeud3ogav1uatbhcfi.html https://articles.manupatra.com/article-details/an-extensive-study-of-rape-laws-in-india https://ijalr.in/kathua-rape-case-critical-analysis-of-pocso/ https://ijalr.in/kathua-rape-case-critical-analysis-of-pocso/ https://www.hindustantimes.com/india-news/supreme-court-transfers-kathua-rape-and-murder-case-to-punjab-s-pathankot-court/story-dwddtg1ft07cjw5lomeswo.html https://www.hindustantimes.com/india-news/supreme-court-transfers-kathua-rape-and-murder-case-to-punjab-s-pathankot-court/story-dwddtg1ft07cjw5lomeswo.html https://www.hindustantimes.com/india-news/supreme-court-transfers-kathua-rape-and-murder-case-to-punjab-s-pathankot-court/story-dwddtg1ft07cjw5lomeswo.html https://indianexpress.com/article/india/kathua-rape-murder-case-verdict-live-updates-5772581/ https://indianexpress.com/article/india/kathua-rape-murder-case-verdict-live-updates-5772581/ udayana journal of law and culture vol. 7 no. 1, january 2023 15 both these cases led to widespread protests due to the brutal nature of the crime and that it was committed against minor girls. as a result, the claa 2018 was enacted which made changes in the ipc; crpc; iea; and pocso.103 under ipc, sections 166a, 228a, 376 were amended and three new sections 376ab, 376da, 376db were inserted.104 a new offence was created under section 376ab, ipc, where the punishment for rape of a girl under 12 years of age is 20 years imprisonment which may extend to life imprisonment, and maximum punishment is death penalty.105 section 376da, ipc introduces a mandatory sentence of life imprisonment for gang-rape of a girl under 16 years of age. further, section 376db, ipc provides for punishment of gang-rape of a girl under 12 years of age with enhanced punishment of life imprisonment or capital punishment. a. stringent punishment the requirement of mandatory sentence of life imprisonment is questionable on the ground of violation of the proportionality principle. a mandatory sentence of life imprisonment without the exercise of judicial discretion, fails to take into account the situation and circumstances of the incident. it presumes the extent and gravity of the guilt of the accused. additionally, such a stringent penalty is likely to negatively impact the conviction rates in such cases, since the standard of proof required would be higher for such conviction.106 moreover, the stringent punishment would lead to fewer rapes being reported especially in cases of rape of girls under 16 years or 12 years. in view of the prevalence of child marriages in india, which wife who is a minor would like to report a case of rape against her husband especially when the sentence is life imprisonment or death.107 b. rape of minors further section 42, pocso was amended by claa 2018. through the amendment, ipc was given an overriding effect over pocso on the issue of awarding punishment. ipc provides for harsher punishments as compared to pocso. the minimum punishment for penetrative sexual assault under pocso is 7 years imprisonment, as opposed to 10 years imprisonment (when woman is between 16-18 years) or 20 years (when woman is under 16 years age), under ipc. on account of claa 2018, the accused is sentenced with the harsher punishment provided under ipc for an offence committed under pocso. however, this amendment has resulted in an anomalous situation as pocso is a gender-neutral law, whereas the offence of rape under ipc is gender-specific. hence, a man committing rape of a girl under 12 years would get a sentence of minimum life imprisonment or death 103 the criminal amendment act, 2018, act no. 22 of 2018. https://www.mha.gov.in/sites/default/files/csdivthecriminallawact_14082018_0.pdf 104 ibid. 105 ibid., section 5 corresponds to section 376ab the indian penal code, 1860. 106 abhishek gupta, “decoding ‘deterrence’: a critique of the criminal law (amendment) act, 2018,” indian law institute law review (summer 2018): 143. 107 ibid. https://www.mha.gov.in/sites/default/files/csdivthecriminallawact_14082018_0.pdf the indian rape law: vocabulary of protest, reactionary legislations and quality of equality culture shruti bedi 16 penalty.108 however, a sexual assault on a minor boy would invite a lesser punishment of 10 years or life imprisonment. this inconsistency will also be reflected in the duality of punishment for gang-rape. the claa 2018 by overlooking the gender-neutrality of pocso while bringing about the amendment has created another error, which violates the right to equality and promotes inequality in the indian society. the claa 2018 has perpetuated the existing ambiguity under the indian criminal law. 2.3. retributive death penalty: is it really a deterrent? according to the jvc report, the “deterrent effect of death penalty on serious crimes is a myth.”109 over 150 states across the world either do not practice death penalty or have abolished it. the us supreme court in coker v. georgia110 has held the death penalty for rape to be violative of the us constitution. unfortunately, both claa 2013 and claa 2018 have prescribed the capital punishment in some form, which is a matter of distress. this is even though the indian supreme court itself has limited the constitutional validity of the death penalty to rarest of rare cases.111 flavia agnes states that “the conviction rate in rape cases continues to be abysmally low even after the introduction of stringent punishment under pocso, 2012.”112 legislative amendments that are enacted in response to public fury and outrage demanding harsher punishments for harsh crimes “give legitimacy to the reductionist argument of harsher punishment for harsher crime, without truly engaging with the task of social reorganisation.”113 justice anjana prakash states that “death sentence as ‘collective conscience’ is a fraud upon justice.”114 the capital punishment not only lacks the power of deterrence and leads to reduced reportage,115 it could also result in the perpetrators ensuring that the victims are murdered or are left in state wherein they are unable to make a complaint or recognise the perpetrators.116 when the perpetrator knows that his crime carries the death penalty, he is likely to 108 the indian penal code, 1860, section 376 ab read with protection of children from sexual offences act, 2012, section 42. 109 jvc report, op cit., 250. 110 433 u.s. 584 (1977). 111 see, bachan singh v. state of punjab (1980) 2 scc 684; machhi singh v. state of punjab (1983) 3 scc 470; sangeet v. state of haryana (2013) 2 scc 452. 112 flavia agnes, “death penalty for child rapists: this populist move will only cause india’s children more harm,” https://scroll.in/article/876554/death-penalty-for-child-rapiststhis-populist-move-will-cause-more-harm-to-indias-children. 113 sahana manjesh, “why the death penalty is not a solution to india’s rape problem,” https://article-14.com/post/why-the-death-penalty-is-not-a-solution-to-india-srape-problem. 114 anjana prakash, “death sentence as ‘collective conscience’ is a fraud upon justice,” https://thewire.in/law/death-penalty-collective-conscience-justice. 115 divya arya, “india death penalty: does it actually deter rape?,” https://www.bbc.com/news/world-asia-india-44922084. 116 jahnvi sen, “seven reasons why we shouldn't demand the death penalty for rape,” https://thewire.in/women/rape-death-penalty. https://scroll.in/article/876554/death-penalty-for-child-rapists-this-populist-move-will-cause-more-harm-to-indias-children https://scroll.in/article/876554/death-penalty-for-child-rapists-this-populist-move-will-cause-more-harm-to-indias-children https://article-14.com/post/why-the-death-penalty-is-not-a-solution-to-india-s-rape-problem https://article-14.com/post/why-the-death-penalty-is-not-a-solution-to-india-s-rape-problem https://thewire.in/law/death-penalty-collective-conscience-justice https://www.bbc.com/news/world-asia-india-44922084 https://thewire.in/women/rape-death-penalty udayana journal of law and culture vol. 7 no. 1, january 2023 17 kill the victim to eliminate any evidence against him. consequently, such harsh punishments could increase the chance of further violence. death penalty once executed, cannot be reversed. a wrong decision could result in disastrous consequences as it extinguishes a life permanently. since the consequences are grave, the courts generally require a higher standard of proof to hold the accused guilty.117 interestingly, the malimath committee118 had also negated the idea of capital punishment for cases of rape. it believed that emphasis should be laid on procedural amendments rather than the quantum of punishment. this would lead to certainty in punishment and that would be the real deterrent.119 2.3. reflection patriarchal societies are inclined to control a woman’s sexuality, and rape is therefore considered a defilement of the woman. a rape victim carries the shame and stigma of the act on her shoulders. it dishonours the family and the community and goes unreported on many occasions. in this act of gendered violence, men assume the role of subjects of violence and women become the objects of violence. it is, therefore, imperative to recognise rape as a power-based crime committed by a distorted society that provides legitimacy to the inequality culture. to reduce crimes against women, it is crucial to adopt both socio-cultural and legal approaches simultaneously.120 the public campaigns in india were limited in their scope as they failed to raise the more critical questions of power balance between men and women. however, the positive outcome was that they brought with it attention which raised citizens' awareness about the reasons behind rape. the new amendments introduced new categories of sexual offenses and enhanced the punishments but failed to redefine rape in a manner that would serve justice. the change in law has failed to bring in the desired transformation in the societal mindset. the rape trials are usually plagued with the bias inherent in the system and amongst the authorities and judges, leading to prejudicial treatment of the victim. additionally, marital rape persists as an exception under the rape law, and the issue of gender neutrality remains unaddressed by the profoundly patriarchal society. the imposition of the stringent death penalty punishment has not lowered the incidence of rape cases but led to lower rates of conviction. judges are hesitant to invoke the death penalty because of its irreversibility and general disbelief in a woman’s testimony. 117 gupta, op cit., 146. 118 justice malimath committee report, “committee on reforms of criminal justice system,” government of india, ministry of home affairs (mar. 2003). https://www.mha.gov.in/sites/default/files/criminal_justice_system.pdf 119 ibid., 193. 120 prerna s. ramteke, “knitting the future story of indian women: preventing violence, fostering development, and accelerating empowerment,” udayana journal of law and culture 1, no. 2 (2017): 113. https://www.mha.gov.in/sites/default/files/criminal_justice_system.pdf the indian rape law: vocabulary of protest, reactionary legislations and quality of equality culture shruti bedi 18 the severe punishment also diminishes reportage and heightened violence against the rape victim. the inability of the criminal law to offer protection to women against crimes of rape or sexual assault has often been criticised. firstly, the laws have been framed callously without regard to the problems faced by women in society. further, the amendments and the supposed reformation brought about in the law due to the public outrage and feminist movements have not translated into reducing the occurrence of rapes and the extant societal perceptions against women. the public protests and the subsequent media attention pressurised the government into setting up committees/commissions, etc., on criminal law reform. however, the indian parliament did not incorporate the expert committees' recommendations in the amendments to the law. the changes in the criminal law consequently did not promote equality, nor did they attempt to rectify the social conditions that allow violence against women and sexual minorities. they did not seriously address the procedural lacunae in delay in deciding rape cases, the insensitivity of the police authorities, and the prevailing apathy of the state. the hastily crafted changes in law, intending to soothe public tempers, compromised the quality of reform. 3. conclusion the superficial changes in the law made no substantive effort to engage with the roots of social pathology and the actual cause behind crimes against women. social change and gender justice cannot be achieved by simply enacting stricter laws. the constitution of india envisages an effective state that is sensitive to perverse social discrimination. it is an instrument to guarantee equal rights to all sections of society and to achieve fulfilment of individual potential. any solution to the issue of rape must incorporate meaningful reforms. the state must address social exclusion and illiteracy issues and build a sensitive and aware police force. in addition, education must be imparted to rectify gender bias and prejudices against women, while measures must include educating children and building their awareness and moral values. most importantly, if the cases are disposed of speedily and without unnecessary delay, it will promote an effective criminal justice system. as the constitutional promise of gender justice remains unrealised, india needs to promote an equality culture and eliminate misogynist traditions. violence against women inherently violates constitutional values, which entails that society should raise future generations in a manner where their experiences are not gendered. moreover, the sexual and social identities of women must be understood in terms of equality. education, gender sensitization, and legal awareness must be worked upon. both families and schools must facilitate this awareness. it is time that the nation bore the responsibility to the millions of women it has failed. udayana journal of law and culture vol. 7 no. 1, january 2023 19 bibliography book beauvoir, simone de. the second sex. london: vintage books, 2011. bedi, shruti. “bodily integrity and the extensity of women’s human rights under indian criminal law.” in the assurance of women’s human rights in criminal justice, edited by wu guang hong et al., 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https://www.lawinsider.in/columns/landmark-judgements-that-shaped-the-rape-laws-in-india#:~:text=the%20objective%20of%20section%20375,more%20serious%20crime%20than%20murder https://www.lawinsider.in/columns/landmark-judgements-that-shaped-the-rape-laws-in-india#:~:text=the%20objective%20of%20section%20375,more%20serious%20crime%20than%20murder https://www.lawinsider.in/columns/landmark-judgements-that-shaped-the-rape-laws-in-india#:~:text=the%20objective%20of%20section%20375,more%20serious%20crime%20than%20murder https://www.lawinsider.in/columns/landmark-judgements-that-shaped-the-rape-laws-in-india#:~:text=the%20objective%20of%20section%20375,more%20serious%20crime%20than%20murder https://timesofindia.indiatimes.com/city/bengaluru/support-grows-for-nirbhaya/articleshow/17738427.cms https://timesofindia.indiatimes.com/city/bengaluru/support-grows-for-nirbhaya/articleshow/17738427.cms https://achievement.org/video/ruth-bader-ginsburg-20/ https://scroll.in/article/876554/death-penalty-for-child-rapists-this-populist-move-will-cause-more-harm-to-indias-children https://scroll.in/article/876554/death-penalty-for-child-rapists-this-populist-move-will-cause-more-harm-to-indias-children the indian rape law: vocabulary of protest, reactionary legislations and quality of equality culture shruti bedi 22 arya, divya. “india death penalty: does it actually deter rape?” https://www.bbc.com/news/world-asia-india-44922084 chaudhuri, pubali ray. “india hates women.” https://msmagazine.com/2013/01/07/being-female-in-india-a-hatestory/ editor. “a critique on anti-rape laws in india.” https://journal.rostrumlegal.com/a-critique-on-anti-rape-laws-inindia/#_ednref9 express web desk. “kathua rape case verdict highlights: three main accused sentenced to life imprisonment, 5-year jail term for others.” https://indianexpress.com/article/india/kathua-rape-murder-caseverdict-live-updates-5772581/ gouws, amanda. “rape is endemic in south africa. why the anc government keeps missing the mark.” https://mg.co.za/opinion/2022-08-09-rape-is-endemic-in-southafrica-why-the-anc-government-keeps-missing-the-mark/ guzman, chad de. “after a teacher was convicted of raping 13 girls, indonesia finally passed sexual violence reform.” https://time.com/6166853/indonesia-sexual-violence-law/ henschke, rebecca. “indonesia approves death penalty for child rapists.” https://www.bbc.com/news/world-asia-36385909 ht correspondent. “it’s time to reclaim the legacy of simone de beauvoir and see feminism for what it is.” https://www.hindustantimes.com/editorials/it-s-time-to-reclaim-thelegacy-of-simone-de-beauvoir-and-see-feminism-for-what-it-is/storyffw9y9pcrzzooysc3qdldo.html india news. “court verdict in unnao rape case against kuldeep sengar likely today.” https://www.hindustantimes.com/india-news/court-verdictin-unnao-rape-case-against-kuldeep-sengar-likely-today/story8avdmeud3ogav1uatbhcfi.html the guardian. “indonesia introduces death penalty and chemical castration for paedophiles.” https://www.theguardian.com/world/2016/may/26/indonesiaintroduces-death-penalty-and-chemical-castration-for-paedophiles kansal, raghav. “the basics of socio-legal research” indian journal of law and public policy. https://ijlpp.com/3688-2/ karmini, niniek. “‘long-awaited law’: indonesia passes law against sexual violence.” https://www.csmonitor.com/world/asiapacific/2022/0412/long-awaited-law-indonesia-passes-law-againstsexual-violence kuadli, jenifer. “32 shocking sexual assault statistics for 2022.” https://legaljobs.io/blog/sexual-assault-statistics/ mallick, tejaswini. “an extensive study of rape laws in india.” https://articles.manupatra.com/article-details/an-extensive-studyof-rape-laws-in-india manjesh, sahana. “why the death penalty is not a solution to india’s rape problem.” https://article-14.com/post/why-the-death-penalty-is-nota-solution-to-india-s-rape-problem https://www.bbc.com/news/world-asia-india-44922084 https://msmagazine.com/2013/01/07/being-female-in-india-a-hate-story/ https://msmagazine.com/2013/01/07/being-female-in-india-a-hate-story/ https://journal.rostrumlegal.com/a-critique-on-anti-rape-laws-in-india/#_ednref9 https://journal.rostrumlegal.com/a-critique-on-anti-rape-laws-in-india/#_ednref9 https://indianexpress.com/article/india/kathua-rape-murder-case-verdict-live-updates-5772581/ https://indianexpress.com/article/india/kathua-rape-murder-case-verdict-live-updates-5772581/ https://mg.co.za/opinion/2022-08-09-rape-is-endemic-in-south-africa-why-the-anc-government-keeps-missing-the-mark/ https://mg.co.za/opinion/2022-08-09-rape-is-endemic-in-south-africa-why-the-anc-government-keeps-missing-the-mark/ https://time.com/6166853/indonesia-sexual-violence-law/ https://www.bbc.com/news/world-asia-36385909 https://www.hindustantimes.com/editorials/it-s-time-to-reclaim-the-legacy-of-simone-de-beauvoir-and-see-feminism-for-what-it-is/story-ffw9y9pcrzzooysc3qdldo.html https://www.hindustantimes.com/editorials/it-s-time-to-reclaim-the-legacy-of-simone-de-beauvoir-and-see-feminism-for-what-it-is/story-ffw9y9pcrzzooysc3qdldo.html https://www.hindustantimes.com/editorials/it-s-time-to-reclaim-the-legacy-of-simone-de-beauvoir-and-see-feminism-for-what-it-is/story-ffw9y9pcrzzooysc3qdldo.html https://www.hindustantimes.com/india-news/court-verdict-in-unnao-rape-case-against-kuldeep-sengar-likely-today/story-8avdmeud3ogav1uatbhcfi.html https://www.hindustantimes.com/india-news/court-verdict-in-unnao-rape-case-against-kuldeep-sengar-likely-today/story-8avdmeud3ogav1uatbhcfi.html https://www.hindustantimes.com/india-news/court-verdict-in-unnao-rape-case-against-kuldeep-sengar-likely-today/story-8avdmeud3ogav1uatbhcfi.html https://www.theguardian.com/world/2016/may/26/indonesia-introduces-death-penalty-and-chemical-castration-for-paedophiles https://www.theguardian.com/world/2016/may/26/indonesia-introduces-death-penalty-and-chemical-castration-for-paedophiles https://ijlpp.com/3688-2/ https://www.csmonitor.com/world/asia-pacific/2022/0412/long-awaited-law-indonesia-passes-law-against-sexual-violence https://www.csmonitor.com/world/asia-pacific/2022/0412/long-awaited-law-indonesia-passes-law-against-sexual-violence https://www.csmonitor.com/world/asia-pacific/2022/0412/long-awaited-law-indonesia-passes-law-against-sexual-violence https://legaljobs.io/blog/sexual-assault-statistics/ https://articles.manupatra.com/article-details/an-extensive-study-of-rape-laws-in-india https://articles.manupatra.com/article-details/an-extensive-study-of-rape-laws-in-india https://article-14.com/post/why-the-death-penalty-is-not-a-solution-to-india-s-rape-problem https://article-14.com/post/why-the-death-penalty-is-not-a-solution-to-india-s-rape-problem udayana journal of law and culture vol. 7 no. 1, january 2023 23 menon, nivedita. “statement by women’s and progressive groups and individuals condemning sexual violence and opposing death penalty.” https://kafila.online/2012/12/24/statement-by-womensand-progressive-groups-and-individuals-condemning-sexual-violenceand-opposing-death-penalty/ mogul, rhea, swati gupta and manveena suri. “alleged rapist and his mother set teenage girl on fire after learning she was pregnant, indian police say.” https://edition.cnn.com/2022/10/12/india/india-girl-rapepregnancy-attempted-murder-intl-hnk/index.html prakash, anjana. “death sentence as ‘collective conscience’ is a fraud upon justice.” https://thewire.in/law/death-penalty-collectiveconscience-justice the print. “98% of delhi’s rape victims were relatives or acquaintances of accused, say police,” https://theprint.in/india/98-of-delhis-rapevictims-were-relatives-or-acquaintances-of-accused-saypolice/547263/ raha, swagata and shruthi ramakrishnan. “changing the age of consent.” https://www.thehindu.com/opinion/op-ed/changing-the-age-ofconsent/article65849243.ece sarda, kanu. “tougher anti-rape law led to lower conviction, says study.” https://www.newindianexpress.com/thesundaystandard/2020/jun /14/tougher-anti-rape-law-led-to-lower-conviction-says-study2156264.html sen, jahnvi. “seven reasons why we shouldn't demand the death penalty for rape.” https://thewire.in/women/rape-death-penalty sharma, padmakshi. “rape includes "marital rape" for the purposes of mtp act, wife conceiving out of forced sex can seek abortion: supreme court.” https://www.livelaw.in/top-stories/rape-includes-maritalrape-for-the-purposes-of-mtp-act-wives-conceiving-out-of-forced-sexcan-seek-abortion-supreme-court-210551?infinitescroll=1 singh, nishu. “kathua rape case: critical analysis of pocso.” https://www.ijalr.in/2021/01/kathua-rape-case-critical-analysisof.html sinha, bhadra. “supreme court transfers kathua rape and murder case to punjab’s pathankot court, rules out cbi probe.” https://www.hindustantimes.com/india-news/supreme-courttransfers-kathua-rape-and-murder-case-to-punjab-s-pathankotcourt/story-dwddtg1ft07cjw5lomeswo.html sinha, jignasa. “delhi recorded 6 rape cases every day this year: police data.” https://indianexpress.com/article/cities/delhi/delhi-rapecases-2022-police-data-8081517/ web desk. “unnao rape and murder: no judge to hear kuldeep singh sengar case.” https://www.indiatoday.in/news-analysis/story/unnao-rape-and-murder-nojudge-to-hear-kuldeep-singh-sengar-case-1575728-2019-07-31 whisnant, rebecca. “feminist perspectives on rape.” the stanford encyclopedia of philosophy (fall 2021), edited by edward n. zalta. https://plato.stanford.edu/archives/fall2021/entries/feminism-rape/ https://kafila.online/2012/12/24/statement-by-womens-and-progressive-groups-and-individuals-condemning-sexual-violence-and-opposing-death-penalty/ https://kafila.online/2012/12/24/statement-by-womens-and-progressive-groups-and-individuals-condemning-sexual-violence-and-opposing-death-penalty/ https://kafila.online/2012/12/24/statement-by-womens-and-progressive-groups-and-individuals-condemning-sexual-violence-and-opposing-death-penalty/ https://edition.cnn.com/2022/10/12/india/india-girl-rape-pregnancy-attempted-murder-intl-hnk/index.html https://edition.cnn.com/2022/10/12/india/india-girl-rape-pregnancy-attempted-murder-intl-hnk/index.html https://thewire.in/law/death-penalty-collective-conscience-justice https://thewire.in/law/death-penalty-collective-conscience-justice https://theprint.in/india/98-of-delhis-rape-victims-were-relatives-or-acquaintances-of-accused-say-police/547263/ https://theprint.in/india/98-of-delhis-rape-victims-were-relatives-or-acquaintances-of-accused-say-police/547263/ https://theprint.in/india/98-of-delhis-rape-victims-were-relatives-or-acquaintances-of-accused-say-police/547263/ https://www.thehindu.com/opinion/op-ed/changing-the-age-of-consent/article65849243.ece https://www.thehindu.com/opinion/op-ed/changing-the-age-of-consent/article65849243.ece https://www.newindianexpress.com/thesundaystandard/2020/jun/14/tougher-anti-rape-law-led-to-lower-conviction-says-study-2156264.html https://www.newindianexpress.com/thesundaystandard/2020/jun/14/tougher-anti-rape-law-led-to-lower-conviction-says-study-2156264.html https://www.newindianexpress.com/thesundaystandard/2020/jun/14/tougher-anti-rape-law-led-to-lower-conviction-says-study-2156264.html https://thewire.in/women/rape-death-penalty https://www.livelaw.in/top-stories/rape-includes-marital-rape-for-the-purposes-of-mtp-act-wives-conceiving-out-of-forced-sex-can-seek-abortion-supreme-court-210551?infinitescroll=1 https://www.livelaw.in/top-stories/rape-includes-marital-rape-for-the-purposes-of-mtp-act-wives-conceiving-out-of-forced-sex-can-seek-abortion-supreme-court-210551?infinitescroll=1 https://www.livelaw.in/top-stories/rape-includes-marital-rape-for-the-purposes-of-mtp-act-wives-conceiving-out-of-forced-sex-can-seek-abortion-supreme-court-210551?infinitescroll=1 https://www.ijalr.in/2021/01/kathua-rape-case-critical-analysis-of.html https://www.ijalr.in/2021/01/kathua-rape-case-critical-analysis-of.html https://www.hindustantimes.com/india-news/supreme-court-transfers-kathua-rape-and-murder-case-to-punjab-s-pathankot-court/story-dwddtg1ft07cjw5lomeswo.html https://www.hindustantimes.com/india-news/supreme-court-transfers-kathua-rape-and-murder-case-to-punjab-s-pathankot-court/story-dwddtg1ft07cjw5lomeswo.html https://www.hindustantimes.com/india-news/supreme-court-transfers-kathua-rape-and-murder-case-to-punjab-s-pathankot-court/story-dwddtg1ft07cjw5lomeswo.html https://indianexpress.com/article/cities/delhi/delhi-rape-cases-2022-police-data-8081517/ https://indianexpress.com/article/cities/delhi/delhi-rape-cases-2022-police-data-8081517/ https://www.indiatoday.in/news-analysis/story/unnao-rape-and-murder-no-judge-to-hear-kuldeep-singh-sengar-case-1575728-2019-07-31 https://www.indiatoday.in/news-analysis/story/unnao-rape-and-murder-no-judge-to-hear-kuldeep-singh-sengar-case-1575728-2019-07-31 https://plato.stanford.edu/archives/fall2021/entries/feminism-rape/ the indian rape law: vocabulary of protest, reactionary legislations and quality of equality culture shruti bedi 24 yadav, jyoti. “a rape forgotten—50 years ago, mathura was denied justice. then society betrayed her.” https://theprint.in/features/a-rapeforgotten-50-years-ago-mathura-was-denied-justice-then-societybetrayed-her/972230/ yi, beh lih. “over 90 percent rape cases go unreported in indonesia: poll.” https://www.reuters.com/article/us-indonesia-crime-womeniduskcn1051sc zielinski, caroline. “why women are still the property of men.” https://www.dailytelegraph.com.au/rendezview/why-women-are-stillthe-property-of-men/newsstory/b18f0a4d456db6967e7c05f4f309604f https://theprint.in/features/a-rape-forgotten-50-years-ago-mathura-was-denied-justice-then-society-betrayed-her/972230/ https://theprint.in/features/a-rape-forgotten-50-years-ago-mathura-was-denied-justice-then-society-betrayed-her/972230/ https://theprint.in/features/a-rape-forgotten-50-years-ago-mathura-was-denied-justice-then-society-betrayed-her/972230/ https://www.reuters.com/article/us-indonesia-crime-women-iduskcn1051sc https://www.reuters.com/article/us-indonesia-crime-women-iduskcn1051sc https://www.dailytelegraph.com.au/rendezview/why-women-are-still-the-property-of-men/news-story/b18f0a4d456db6967e7c05f4f309604f https://www.dailytelegraph.com.au/rendezview/why-women-are-still-the-property-of-men/news-story/b18f0a4d456db6967e7c05f4f309604f https://www.dailytelegraph.com.au/rendezview/why-women-are-still-the-property-of-men/news-story/b18f0a4d456db6967e7c05f4f309604f i udayana journal of law and culture vol. 01 no.2, july 2017 preface we are very grateful to continue the first edition of udayana journal of law and culture (ujlc). this journal offers a distinctive legal insight that views the relationship between law and some other approaches, especially culture. this volume 1 number 2 chooses ‘rights of the vulnerable groups” as the central topic as it presents some legal and societal problems faced by vulnerable groups. it has been generally understood that indigenous peoples and women are considered as vulnerable groups. this classification was made due to their fragile position in the society, in which, their basic rights cannot be properly exercised. from a legal point of view, the government has the responsibility to respect, protect, and fulfill their human rights. three articles in this edition discuss the specific matters faced by indigenous peoples and traditional communities. the first and fourth article take the example of the legal order for aborigines in australia as well as the issue of justice and equality with regards to the law enforcement. the first article examines the meaning of equality and equal justice in the context of a multicultural society with a focus on aboriginality of defendants before the courts while the fourth article compares australian, madayin and talmudic laws in terms of their respective sources and purposes. the third article views how indigenous culture that practiced in bali-indonesia by its customary community needs an appropriate national and local regulations in order to enable the community to earn economic benefits generating from tourism activities. the situation of women, as the other category of a vulnerable group, is discussed in the second article. by using sociological approach to law, this writing focuses on how women in india are struggling to enjoy their rights as stipulated in relevant laws and regulations. the fifth article describes a unique approach to fulfilling rights of the victims to obtain reparation after a horizontal conflict in ambon, indonesia. the research found how lembaga adat negeri as an institution that implements customary norms and tradition plays an effective role in determining the appropriate form of reparation for each victim or group of victims, as well as the best way to provide satisfaction. a special thanks is dedicated i ketut tika, i made rajeg, and kayleigh smith who kindly provided language editing and revision for ujlc. lastly, we would like to express our great appreciation to all authors, submissioners, and board of editors who are scholars and legal professionals from indonesia and abroad and also to the editorial members for their generous contribution in this edition. we expect this edition will encourage academicians and practitioners all over the world to contribute their articles to the ujlc for the upcoming edition. editor in chief ii e-issn 2549-0680 iii udayana journal of law and culture vol. 01 no.2, july 2017 comparison and co-existence: sources and purpose of authority in the australian, madayin and talmudic legal systems claire powell* charles darwin university school of law, darwin, australia 1. introduction the continuing assertion of the unitary nature of the australian legal system has perpetuated an antagonist relationship with aboriginal systems of law since colonisation.1 however, it is generally accepted that customary international law requires acknowledgement of the rights of indigenous people to ‘regulate autonomously their internal affairs according to their customary law and to establish, maintain and develop their own legal and political institutions, in a way that is consistent with the rules on fundamental human rights’ and that ‘(s)tates have the obligation to recognize * correspondence: s249223@students.cdu.edu.au. 1 on the application of australian law to the aboriginal population see r v jack congo murrell (1836) 1 legge 72; on the unitary nature of australian law see kruger v commonwealth (1997) 190 clr 1. more recent high court rulings, particularly concerned with the influence of international law have reaffirmed the sovereignty of australian law, see cpcf v minister for immigration and border protection [2015] hca 1 at 211. abstract this article will compare australian, madayin and talmudic law in terms of their respective sources and purposes. it will focus on the characterisation of each system to highlight conceptual similarities and differences which affect their operation and,in particular, their commensurability with other systems. specific areas of law concerned with coexistence are identified as being both crucial and particularly problematic. notwithstanding australian government statements and high court rulings asserting the sovereignty of australian law, it will be argued that no legal system is self-contained. accommodations are essential and require legislators to grapple with the difficulties of reconciling differing conceptualisations using an informed comparative framework. talmudic law is considered here as an example of a system which has demonstrated the ability to coexist adaptively with a variety of other systems without compromising its integrity. keywords: australia, indigenous, talmudic, law, co-existence. how to cite: powell, claire. 2017. “comparison and co-existence: sources and purpose of authority in the australian, madayin and talmudic legal systems”. udayana journal of law and culture 1 (2): 141-156. doi:10.24843/ujlc.2017.v01.i02.p04. doi: https://doi.org/10.24843/ujlc.2017.v01.i02.p04 copyright © 2017 ujlc. all right reserved 141 vol. 01, no. 2, july 2017, 141-156 and ensure respect for the laws, traditions and customs of indigenous peoples.2 the extended negotiation process leading to australia’s eventual acceptance of the un declaration of the rights of indigenous peoples demonstrates the deep-rooted reluctance to deviate from this position and highlights the view of successive australian governments and the high court of the sovereignty of australian law.3 in so far as substantive acknowledgement of specific indigenous legal rights does exist, for example in relation to land rights and culturally appropriate education, it has been hard won and framed more in terms of concessions than rights.4 talmudic law by contrast provides an unusual example of a legal system, which is fundamentally pluralistic.5 it has endured, successfully operating in parallel with a highly diverse range of other legal systems, for more than two thousand years and is used here to highlight the scope of possibilities for effective accommodation between systems with seemingly antithetical legal concepts. the analysis in this article suggests future avenues for research to facilitate this process of accommodation both in australia and elsewhere, particularly in jurisdictions where indigenous systems of law are evident. 2. result and discussion 2.1. australian legal system the australian constitution (the constitution) is the foundational source of the australian legal system authorising the division and exercise of power ‘to make laws for the peace, order, and good government’6 of the nation. unlike chthonic systems of law, australian law is formally independent of other sources of authority, including religious and moral authority, although the influence of the christian tradition in the inception of australian law is evident from the preamble to the constitution ‘relying on the blessing of almighty god.’ as mckennna, simpson and williams have observed, however, the framers, recognising the interpretative potential of including those words, were careful to reject any particular or direct religious authority, preserving religious neutrality under the provisions of s116.7 the development of 2 international law association, the hague conference (2010) rights of indigenous peoples 74 international law association report conference, 834 2010, 910. 3 see minister for immigration and ethnic affairs v teoh (1995) 183 clr 273 at 287 per kirby, j and other immigration law rulings on the influence of international law and human rights law on australian law for example cpcf v minister for immigration and border protection [2015] hca 1. 4 mabo v commonwealth (1992) 175 clr 1; wik peoples v queensland (1996) 187 clr 1; on culturally appropriate education and specifically use of aboriginal languages in education see calma, tom,”sustaining indigenous education, language and culture”, speech delivered at world indigenous people’s conference: education on 9 december 2008. 5 menachem elon (i),“law, truth, and peace: ‘the three pillars of the world’,” new york university journal of international law & politics 19 (1996), 440. 6 australian constitution,s61 for example. 7 mark mckenna, amelia simpson and george williams, “first words: the preamble to the australian constitution,” university of new south wales law journal 24 (2001), 386; australian constitution, s116 “the commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the commonwealth.” comparison and co-existence: sources and purpose of authority in the australian, madayin and talmudic legal systems claire powell 142 udayana journal of law and culture vol. 01 no.2, july 2017 australian law continues to be shaped by prevailing social norms, including religion and morality as will be discussed below. the scope of australian law is clearly defined according to specific areas of human action, including primarily administrative law, constitutional law, contract law, criminal law, environment and planning law, equity, family law, property law and tort law. law, subject to constitutional consistency, is sourced from both case law by means of a system of legal precedent and legislation made in parliament. there is a formal separation of powers into the legislature, executive and judiciary. case law is subordinate to legislation, according to the operation of the doctrine of parliamentary supremacy.8 a hierarchy of courts throughout australia has enabled the development of a single common law. ultimate control of the legal system lies with the citizenry through a chain of responsibility, which is known as responsible democracy,9 whereby the government ‘is chosen by, accountable to, and owes its continued existence to, the legislature,’10 whose representatives are democratically elected by the citizenry according to the provisions of the constitution.11 the constitution itself may only be altered by the domestic legislature with the approval of the majority of citizens in the majority of states by means of referendum.12 the purpose of the australian legal system has therefore been described as enabling the demos to rule.13 other commentators have stressed the continuing acceptance of the constitution ‘as fundamental legal rules of [the] system and the basic constitutive documents of [the] community’,14 its grundnorm.15 2.2. madayin madayin (or ngarra16) operating in north-east arnhem land is wholly integrated with the overall philosophy of the yolngu, who in habit that land. until very recently 8 a.v. dicey, introduction to the study of the law of the constitution (indianapolis, liberty classics, first published 1885, 8th ed, 1915, reprint 1982), cxlviii. 9 theophanous v herald and weekly times (1994) 182 clr 104. 10 john mcmillan, gareth evans and haddon storey, australia’s constitution: time for change?. (sydney: law foundation of new south wales and george allen & unwin australia, 1983), 209. 11 australian constitution, ss 7, 24. 12 ibid, s 128. 13 danial kelly (i), “the legal and religious nature of aboriginal customary law: focus on madayin”,university of notre dame australian legal review 16 (2014), 73. 14 leslie zines, constitutional change in the commonwealth. (cambridge: cambridge university press, 1991), 27 and see john quick and robert garran, the annotated constitution of the australian commonwealth (sydney: angus and robertson, first published 1901, 3rd ed 1995), 988 ‘in the constitution of the commonwealth ‘of course there is no absolute sovereignty, but a quasi-sovereignty which resides in the people of the commonwealth. who may express their will on constitutional questions through a majority of the electors voting and a majority of the states.’ 15 hans kelsen, pure theory of law, legality and legitimacy (oxford: oxford university press, 2007), 56. 16 george pascoe gaymarani, “an introduction to the ngarra law of arnhem land”, northern territory law journal 1 (2011), 283. 143 no legal authorities had been in written form, but were rather completely oral.17 the need to provide a written record of the law to enable it to be interpreted by australian lawmakers and academics has now been recognised.18 according to the yolngu there is no separation from law, it has been there since time immemorial ‘when the world was nothing…(the) law created this country’.19 it is believed to have been embedded in the landscape and its inhabitants by a mythical being (wangara),20 governing every facet of existence to maintain a state of magaya, where there is peace, harmony and order,21 and where all life may flourish. it includes sacred places and objects such as art works, songs and ceremonies associated with the law. magaya is achieved by means of obligatory ceremonies, which reinforce the ascribed relationships between and among individuals and the land they inhabit and most fundamentally through the practice of a fertility philosophy.22 it has been described as a theocracy in the sense of government by deity as interpreted b y ecclesiastical authorities.23 2.3. talmudic law the talmudic system also represents a comprehensive, existential philosophy prescribing conduct in all areas of life. halakhah, translated as the way or path to walk, captures this sense, referring to that portion of the talmud which deals with the law.24 sources of authority are in both written and oral form and it is believed that the entire talmud is derived from god and revealed to moses.25 although judaism predates moses, the reception of the law is taken to be the beginning of talmudic law.26 the written sources are vast, complex in their interrelatedness and multi-layered, although not necessarily hierarchically according to their respective degree of authority. the initial process of writing the talmud was undertaken as a protective measure in response to the diaspora and consequent loss of political sovereignty, as a means of 17 ibid., 284.56. 18 danial kelly (ii),“foundation sources and purposes of authority in madayin”, victoria university law & justice journal 4 (2014), 48. 19 gaymarani, op.cit., 245. 20 kelly(ii), op.cit., 49. 21 gaymarani, op.cit., 286. 22 kelly(ii), op.cit., 52. 23 ronald m. berndt, an adjustment movement in arnhem land, northern territory of australia (paris: cashiers de l’homme, mouton), 1962) 14. 24 encyclopaedic australian legal dictionary, http://www.lexisnexis.com.ezproxy.cdu.edu.au/au/ legal/results/enhdocview.do?doclinkind=true&erskey=23_t25738853566&format=gnbfull&startdocn o=0&resultsurlkey=0_t25738853569&backkey=20_t25738853570&csi=267785&docno=2&fromdocprevi ew=true&scrolltoposition=0. 25 8th principle, from the 13 principles of faith, maimonides, that we believe that the entire torah which we possess today is the torah given to moses, and that it was given in its entirety by the almighty. 26 h. patrick glenn, legal traditions of the world (oxford: oxford university press, 3rd ed, 2007), 94. comparison and co-existence: sources and purpose of authority in the australian, madayin and talmudic legal systems claire powell 144 udayana journal of law and culture vol. 01 no.2, july 2017 safeguarding the law.27 the fundamental basis of talmudic law is the pentateuch, referred to as the torah, which may also signify the entirety of talmudic law.28 the mishnah comprises a collection of legal rules derived through interpretation of the torah by sages and arranged in volumes according to their subject matter. the volumes are entitled zera’im (seeds): concerning prayer and agriculture; mo’ed (festival) concerning holy days; nashim (women) containing the laws concerning marriage and divorce; nezikin (damages), covering civil and criminal law; kodashim (holy things), encompassing temple rituals, sacrifices and dietary laws; and toharot (purities), delineating the laws of ritual purity and impurity. the jerusalem and babylonian talmuds were the first written records of debates and opinions on the mishnah and remain the basic books of law equivalent to customary law. each version has enjoyed different relative levels of authority historically. it has been argued that the talmud is of higher authority than the torah and that even god is bound by customary law.29 subsequent to the talmud a body of written responsa has developed recording learned rabbinical opinion with biblical authority on the application of the law.30 the oral tradition, which began with moses interpreting the torah, is considered divine and has been continued by adherents through a process of repetition and rote learning, as an obligatory practice.31 much of the oral law has been translated into written form, as outlined above. elon describes the torah and the body of oral law as the grundnorm of talmudic law and the subsequent responsa as constituting the case law.32 the overall purpose of talmudic law is encapsulated by the concept of halakhah, whereby practice is directed to enhancing well-being and refining humanity.33 the primary imperatives, derived from authoritative talmudic sources, are law, truth and peace.34 commentators have also identified the restoration of harmony, drawing 27 ibid., 98. 28 ibid., 95. 29 bava metzia 59a-b (the oven of aknai) where rabbi joshua disputing a heavenly voice claims “it is not in heaven”; god replies “my children have defeated me….”. 30 deut.17:9 “go to the priests, who are levites and to the judge who is in office at that time. inquire of them and they will give you the verdict.” 31 maimonides, introduction to the talmud, trans, and annot. z lampel (new york: judaica press, 1975), 35. 32 menachem elon(ii), “the legal system of jewish law”, new york university journal of international law & politics17 (1984), 229-230. 33 emunot vedeot, saadia gaon (babylon/iraq 900 ce), the guide for the perplexed; moses maimonides (spain/north africa 1200 ce); midrash bereishit rabbah 44. 34 for example, menachem elon (i) focuses on these imperatives emanating from the talmud for example in the mishnah [m] avot 1:18, quoting zechariah 8:16. 145 parallels with other chthonic systems, such as madayin35 and similarly the affirmation of the love of god,36 echoing the ceremonial practices of yolngu. 2.4. comparison of key characteristics in the three systems the foundational separation of law from other systems of authority in the australian legal system contrasts sharply with the integration of madayin and talmudic law with the whole social order. it conforms closely to mattei’s rule of professional law,37 resting on the ‘supposition that law constitutes an autonomous body of rules independent and separate from, although not uninfluenced by, religion, morality, and other social norms.’ in this sense and formally it is a predominantly positive law system, although in practice the application of precedent in common law systems relies on the acknowledgement of community standards, thus weakening its positivistic basis.38 this is quite unlike madayin law based firmly on natural law and controlling the whole social order, including religion, culture and politics, which conforms to mattei’s conception of rule of traditional law.39 it not only defines and enforces relationships between people, with nature and with the divine40 but also prescribes the rules of social order and practice, including education, child-rearing, sexual relations and marriage.41 talmudic law also has a theocratic basis but reflects a separation from autochthony as monotheism assigns people the role of law making in partnership with the divine.42 thus, although clearly a natural law system, with no separation of the religious and cultural from law, secular authority to legislate has been clearly recognised at least since medieval times. the substance of the law, however, remains in rabbinical control.43 laws are categorised as either issura, concerning religious law, which includes matters of family law, such as marriage and divorce, and ritual matters, or mamona, concerning secular matters, including most civil and criminal law. issura law is strictly rabbinically controlled. while mamona is amenable to the application of secular authority. however, as most law has an 35 glenn, op.cit., 99. 36 ibid., 104. 37 ugo mattei, “three patterns of law: taxonomy and change in the world’s legal systems”, american journal of comparative law45(1997), 31. 38 joseph dainow,“the civil law and the common law: some points of comparison”,the american journal of comparative law15 (1966), 425. 39 ibid.,35. 40 ronald. m berndt, “a profile of good and bad in australian aboriginal religion”, charles strong memorial lecture 1979 reprinted from colloquium journal of the australian and new zealand society for theological studies, 18. 41 gaymarani, op.cit,. 288. 42 as god placed creation in adam’s hands with the instruction to ‘rule over it’ genesis 1:28-30. the talmud also instructs people to work and protect; to complete the process of creation; and to partner with god. 43 see for example, maimonides, yad, at gezelah 5:14 ‘the principle of the matter is the following: any law that the king will enact which applies generally and not only to a single individual is not thievery; and whenever he will take from a particular individual only, except by law applicable to everyone, this is unlawful and robbery. comparison and co-existence: sources and purpose of authority in the australian, madayin and talmudic legal systems claire powell 146 udayana journal of law and culture vol. 01 no.2, july 2017 issura component it remains subject to rabbinical scrutiny and any secular law on issura will be held to be invalid to the extent that it is inconsistent with a talmudic ritual precept.44 overall it encompasses all areas of law represented in common law systems, including the australian legal system. 2.5. means of interpretation to understand legal authority it is important to consider the accepted means of interpretation. in australian law judges interpret the law, determine disputes and judge the legitimacy of legislation. if laws are ultra vires, beyond the power of legal authority, they will be struck down as unconstitutional.45 similarly, the rabbis in their judgements and responsa trace a thread of reasoning to talmudic sources in order to establish validity.46 in the australian system judgement is final (appeals excepted), according to the principle of res judicata, and is reached on the basis of evidence put by opposing parties, resulting in a winner and a loser.47 madayin and talmudic law in contrast, aim to re-establish harmony using negotiation processes. the ngarra court operates in a completely open adjudicative process.48 the elders sit to discuss matters of law, to determine policy and also have authority from the yolngu community, including parties to disputes, to make binding judgements. judgements are made by male and female clan leaders through open discussion with the parties and their families. each party is represented and mediators are used and normally a negotiated settlement (makarrata) is reached to which the offender agrees. rabbinical courts (bet din), although generally without state authority, are often regarded as decisors settling matters in private law.49 they are more concerned with establishing truth than efficiency or stability.50 there are no appeal provisions but parties may return to the same court if they consider the initial judgement to be erroneous, thus not recognising res judicata.51 rabbinical courts in israel claim to be based on talmudic law, but in practice they have adopted contemporary procedures.52 44 r. simeon duran, responsa (tashbez) 1:158. 45 humane society international inc v minister for the environment and heritage (2003) 126 fcr 205. 46 david luban, “the coiled serpent of argument: reason, authority, and law in a talmudic tale”, chicago-kent law review 79 (2004), 1286. 47 dainow,op.cit., 35. 48 gaymarani, op.cit., 286. 49 perry dane, “the yoke of heaven”,university of toronto law journal 44(1994) 353. 50 elon(i), loc.cit. 51 yuval sinai, “reconsidering res judicata: a comparative perspective”, duke journal of comparative & international law 21 (2010), 365. 52 jewish virtual library, “encyclopaedia judaica, practice and procedure”,http://www.jewishvirtuallibrary.org/practice-procedure. 147 2.6. evolution and adaptation australian law has a fixed starting point at federation in 1901, though because australia received english law at the establishment of the colonies, it could be argued that the roots of australian law extend back through english history.53 the australian constitutional framework has endured since federation, preserving its core precepts, while adapting to changing social circumstances, technical advances and the influence of precedent.54 australian law is described as sovereign rather than eclectic, a characteristic evoked repeatedly by opponents of the recognition of aboriginal customary law.55 the iconoclastic ruling in mabo cautioned in similar terms,56 reflecting the high court’s resistance to accepting any plurality of laws. nevertheless, the legal system has incorporated elements of indigenous legal practice, particularly through as an extension of restorative justice programmes, including elements of circle sentencing in several jurisdictions.57 talmudic law is traced to the revelation of the torah, the grundnorm of the system.58 since the compilation of the babylonian talmud halakah continued to develop through the responsa, forming a dynamic body of law comparable to case law.59 subsequent exile and the creation of a diasporic jewish population has precipitated a legal system without fixed geographical jurisdiction. a massive volume of responsa material has developed through the application and adaptation of talmudic law to local social and economic conditions, leading to the development of new substantive areas of law concerned with, for example, public administration, tax and criminal justice.60 in exile jewish communities were generally empowered to resolve internal legal disputes by the respective jurisdictional government.61 that recognition has ceased 53 geoffrey lindell (i), “why is australia’s constitution binding?: the reasons in 1900 and now, and the effect of independence”, federal law review 6 (1986), 29. 54 see geoffrey lindell (ii), “expansion or contraction? some reflections about the recent judicial developments on representative democracy”, adelaide law review20 (1998), 111-146; amelia simpson and george williams, “international law and constitutional interpretation”, 11 plr 205. 55 australian law reform commission,“recognition of aboriginal customary laws”, report no. 31, 12 june 1986, paragraph 118. divisiveness and the ‘one law’. a view strongly stated in several submissions was that recognition would create an undesirable form of legal pluralism, and that it would be divisive or an affront to public opinion. proponents of these views argue that there should be ‘one law for all,[59] and that the goal should be ‘social equality for aborigines within the concept of racial unity and integration’. 56 mabo v queensland (no 2) (1992) 175 clr 1 at 29 ‘in discharging its duty to declare the common law of australia, this court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency.’ 57 see for example richards, kelly. ‘police-referred restorative justice for juveniles in australia’ [online]. trends and issues in crime and criminal justice, no. 398, aug 2010: [1]-8, http://search.informit. com.au.ezproxy.cdu.edu.au/documentsummary;dn=846094200631694;res=ielhss. 58 kelsen, loc.cit. 59 elon(i), op.cit., 239. 60 ibid., 233. 61 ibid., 231. comparison and co-existence: sources and purpose of authority in the australian, madayin and talmudic legal systems claire powell 148 udayana journal of law and culture vol. 01 no.2, july 2017 since the process of emancipation in the 18th century, whereby jews have been accorded the same rights and responsibilities as other members of society. however, the development and influence of talmudic law has continued, including the parallel operation of rabbinical courts alongside state civil courts, authorised in israel to adjudicate personal law matters.62 it is understood that madayin has been in existence since time immemorial, but is nevertheless a dynamic system, open to influence from australian law, syncretic and also relative in that there are generally no hard and fast rules. commentators have observed that chthonic systems are by their nature dynamic, internally contested and syncretic, immersed as they are in their respective landscapes.63 no indigenous system, including madayin, exists in an autonomous jurisdiction and therefore their authorities and practices develop in response to an evolving relationship with the overarching polity and changing social conditions and attitudes. 2.7. co-existence with other legal systems the ability to accept, or at least recognise, alien sources of authority is challenging for all sovereign states. since r v jack congo murrell (1836) 1 legge 72 it was taken to be settled in principle that australian law applies to the aboriginal population. england chose to weaken the erst while chthonic law by imposing its law on the indigenous population. this has not been the case uniformly in other parts of the world. glenn, for example, cites ghana, where the colonising english strengthened pre-existing chthonic law providing constitutional recognition.64 several states in south america now practise well-developed systems of legal pluralism with special jurisdictions of indigenous law65 recognised in the constitutions of peru, bolivia, ecuador and venezuela since the 1990s, including the right to administer justice in their own territories. these developments reflect an international trend to recognise indigenous dispute resolution practices to address the acknowledged inequities in the justice systems.66 failure to recognise customary law in the australian legal system continues to result in significant injustice to the aboriginal population as a consequence of 62 foundations of law 5740-1980, sefer ha-chukim no. 978 at 163 (july 31, 1980) (official collection of statutes of the state of israel).s48 where a court is required to decide a legal question for which there is no answer in statutory law, judicial precedent, or by analogy, the question shall be determined in the light of the principles of freedom, justice, equity, and peace of the jewish heritage. 63 rachel sieder, “the challenge of indigenous legal systems: beyond paradigms of recognition”, brown journal of world affairs 18 (2012), 106; glenn, op.cit., 78. 64 glenn, op.cit., 82. 65 sieder, op.cit., 3. 66 ibid., 104. 149 differing conceptions of legal relations and responsibility, particularly where customary law governs conduct. a yolngu person’s place in the universe is ascribed with clear, inescapable duties and responsibilities to other people according to kinship relations.67 yolngu also share corresponding responsibilities to ‘preserve critical order of the natural world’68 of which they are an integral part by caring for country. they construe their position as entailing obligations rather than rights, a concept that has developed from individualistic, property-based legal systems, such as the australian system. glenn discusses the incompatibility of chthonic systems of common ownership with property law,69 problems which have been highlighted in the area of copyright for art works.70 under aboriginal law traditional owners are responsible for any unauthorised reproduction of sacred objects, even where they may have no direct control of that occurrence, and are liable to severe punishment. attention has also been drawn to the risks of ignoring aboriginal conceptions of responsibility in the area of criminal law. in the case of a fatal car accident australian law assigns responsibility to the driver of the vehicle but under customary law all occupants of the car and the driver’s close kin would be held responsible for failing to keep the driver safe.71 the high court’s ruling that aboriginality is irrelevant to the sentencing process72 means that aboriginal plaintiffs are judged disregarding their customary obligations and they may misunderstand the charges against them pleading inappropriately as a consequence, a situation exacerbated by the paucity of appropriate legal services.73 the ruling may also be seen as being antithetical to the rule of law and contrary to international law.74 recommendations of the australian law reform 67 gaymarani, op.cit., 290-5. 68 edward goldsmith, the way: an ecological worldview (london: random century, 1992) xi-xvii. 69 glen, op.cit., 61. 70 milpurrurru v indofurn pty ltd (1995) 6 aipj 185 para 13. 71 tatum hands, “teaching an old dog new tricks: recognition of aboriginal customary law in western australia”, indigenous law bulletin6 (2006), 14. 72 bugmy v the queen (2013) 249 clr 571; [2013] hca 37. 73 see chris cunneen, fiona allison, and melanie schwartz,“access to justice for aboriginal people in the northern territory”, australian journal of social issues 49, no. 2 (2014): 219-240, http://search. informit.com.au.ezproxy.cdu.edu.au/documentsummary;dn=453499071087937;res=ielfsc. 74 for example article 27 of the united nations declaration on the rights of indigenous people annexed to ga res 61/295, ungaor 61st sess no 49, vol 111, un dox a/61/49 (2008) 15, states: ‘states shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. indigenous peoples shall have the right to participate in this process; and also universal declaration of human rights, g.a. res. 217a, art. 74, u.n. gaor, 3d sess., 183d plen. mtg., u.n. doc. a/810 (dec. 10, 1948); international covenant on economic, social and cultural rights art. 2(3), dec. 16, 1966, 993 u.n.t.s. 23. comparison and co-existence: sources and purpose of authority in the australian, madayin and talmudic legal systems claire powell 150 udayana journal of law and culture vol. 01 no.2, july 2017 commission (alrc) report in 198675 and the subsequent law council of australia report in 200676 were framed in terms of a need for accommodation. the alrc concluded that the risks of pluralism can be avoided or minimised and that it was an appropriate response ‘for a geographically wide-spread and culturally diverse society.’77 yolngu elders generally accept the authority of australian law78 and have demonstrated some willingness to change traditional practices to comply with the requirements of australian law. punishments, such as spearing, have been adapted to be symbolic rather than inflicting serious injury and there has been a recognition that the physical punishment of women constitutes domestic violence and is unacceptable.79 talmudic law similarly emphasises the centrality of obligation (mitvah) rather than rights, in particular to study the law; to fulfill obligations to demonstrate love of god;80 and to do what is right and good.81 jewish law holds people accountable for any damage they cause, whether intentional or accidental, unless the damage is completely unavoidable.82 there is a long history of co-existence with other legal systems and accordingly the principle of dina de-makikhuta dina (the law of the land) accepts the authority of the respective jurisdiction in which jews are living.83 the validity of various provisions of alien legal systems in civil matters is recognised, even if they are contrary to jewish law. however, the law of the secular authority is not valid if it is inconsistent with an aspect of issura84 or infringes the basic concepts of justice, morality, equity and freedom. contracts have thereby been voided where the debtor agreed to imprisonment for non-payment. under jewish law no-one can agree to lose their freedom and laws must apply equally to all members of the community without discrimination. otherwise a law is considered unlawful and to constitute robbery.85 a sophisticated system of mechanisms to deal with conflict of laws has developed, whereby pluralism in debate is condoned in the process of discovering 75 australian law reform commission,loc.cit. 76 ibid. 77 ibid., paragraph 118. 78 ibid.gaymarani, op.cit., 299-300. 79 danial kelly (iii), “the black and white of wunungmurra”, northern territory law journal 2 (2012), 234. 80 see r. cover, “obligation: a jewish jurisprudence of the social order”, journal of law and religion 5 (1987), 65 on the superiority of an obligation perspective. 81 deuteronomy 6:18. 82 authority in the mishna eg maimonides, mishna torah, laws of damager, 6:15. 83 baba kamma 113b. 84 elon(i), op.cit., 223. 85 ibid., 224. the principle of the matter is the following: any law that the king will enact which applies generally and not only to a single individual is not thievery; and whenever he will take from a particular individual only, except by law applicable to everyone, this is unlawful and robbery’ quoting maimonides. 151 the means to achieve uniformity in practice and to maintain the imperative to abide by the spirit of the law.86 rabbis have thus developed lines of reasoning, including elaborate legal fictions, to enable acceptable solutions to be reached.87 3. conclusion this article has highlighted some of the significant similarities and differences in the sources of authority and purpose of madayin, talmudic and australian law. attention has been drawn to the importance of jurisprudential construction in understanding the operation of these systems, particularly in terms of their different positions on a spectrum from being purely positivist to being wholly based on natural law. in chthonic systems like madayin and to a lesser extent talmudic law, a legal wrong by disrupting harmony, inflicts a social wound88 and the parties negotiate a solution to reestablish the natural order. the truth is paramount. a wrong in common law systems such as australian law broadly breaches individual legal rights and the law provides remedies on the basis of contested evidence. this perspective explains the madayin and talmudic emphasis on obligations and responsibilities to maintain the natural order compared with the australian focus on individual rights. similarities have also been identified, notably that all three systems rely on the mediation of law through respectively elders, rabbis and judges, who trace lines of legal reasoning derived from the relevant authorities. with these observations in mind and considering the geo-political context of each system it is argued that cooperative co-existence is crucial and talmudic law offers an interesting model for consideration. 86 elon (ii), op.cit., 469. 87 ibid., 456. 88 glenn, op.cit., 68. comparison and co-existence: sources and purpose of authority in the australian, madayin and talmudic legal systems claire powell 152 udayana journal of law and culture vol. 01 no.2, july 2017 bibliography book berndt, ronald m. an adjustment movement in arnhem land, northern territory of australia (paris: cashiers de l’homme, mouton), 1962 dicey, a.v. introduction to the study of the law of the constitution. indianapolis: liberty classics, first published 1885, 8th ed, 1915, reprint 1982 glenn, h. patrick. legal traditions of the world, 5th ed. oxford: oxford university press. 2014 goldsmith, edward. the way: an ecological worldview, london: random century, 1992 kelsen, hans. pure theory of law, legality and legitimacy, oxford: oxford university press. 2007 maimonides. introduction to the talmud, trans, and annot. z lampel. new york: judaica press. 1975 mcmillan, john, evans gareth and haddon storey. australia’s constitution: time for 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is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licenses/by/4.0/) 59 legal and ethical discourse of saviour sibling: how should indonesia respond to this new trend? ra antari innaka* faculty of law universitas gadjah mada, yogyakarta, indonesia muhammad jibril** faculty of law universitas gadjah mada, yogyakarta, indonesia abstract thalassemia major is a genetic condition characterized by an inefficient synthesis of red blood cells which can be cured by bone marrow transplantation surgery. however, getting a matching donor is a challenging task. therefore, some people have been using the “saviour sibling” procedure wherein a sibling is born to be a donor for their sibling. this procedure, however, has been raising debate, especially concerning bioethics. indonesia, a country with a high number of people who suffer from such an abnormal genetic condition, needs to be aware of this procedure and its policy framework. this paper conducts a comparative study in identifying and analyzing how saviour sibling is regulated in countries other than indonesia. besides, it discusses the legal and ethical implications of saviour sibling procedures in indonesia. it is a cross-discipline research that combines legal research in the fields of health law, human rights law, and private law and resources from medical science. the analysis is established by using normative, comparative, and ethical approaches. this study found a disparity in the policy framework between countries because such a procedure is in the grey zone between bioethics and technologies. nevertheless, no rights are violated because the child would live a life of physical and mental well-being. this procedure also plays a critical role in developing medical technology. in bioethics, the saviour sibling procedure begs whether the conceived sibling is just a means to an end, a mere commodity. in indonesia, the legal framework on health technology involving human subjects is still relatively lax in regulating saviour siblings. therefore, this study suggests that indonesia needs to consider the diverse local wisdom as the foundation of its bioethics in regulating saviour sibling in the future. keywords: bioethics; indonesia; legal framework; medical technology; saviour sibling. 1. introduction the birth of a child with a severe genetic (congenital/hereditary) disease can be prevented by genetic engineering or by preimplantation genetic diagnosis (pgd).1 genetic engineering or modification is one of the modern biotechnology techniques that manipulate or modify deoxyribonucleic acid (dna) molecules to change the characteristics of an organism.2 this genetic * email: antari_innaka@ugm.ac.id ** email/corresponding author: muhammad.jibril@ugm.ac.id 1 a l v. hammerstein, matthias eggel, and nikola biller-andorno, “is selecting better than modifying? an investigation of arguments against germline gene editing as compared to preimplantation genetic diagnosis,” bmc medical ethics 20, no. 83 (2019): 1– 2. 2 sutarno, “rekayasa genetik dan perkembangan bioteknologi di bidang peternakan,” proceeding biology education conference 13, no. 1 (2016): 23. https://doi.org/10.24843/ujlc.2023.v07.i01.p042 http://creativecommons.org/licenses/by/4.0/ mailto:antari_innaka@ugm.ac.id mailto:muhammad.jibril@ugm.ac.id legal and ethical discourse of saviour sibling: how should indonesia respond to this new trend? ra antari innaka and muhammad jibril 60 modification technology uses proteins, called enzymes, to cut through the areas of dna in an organism's genetic material so that it will compose the organism's genes.3 genetic engineering technology is different from pgd, where in the pgd procedure, there is no process of changing genes or dna. pgd is a procedure in which the embryo is screened in vitro. based on the data obtained, only embryos with the desired genetic features will be implanted into the mother's womb.4 pgd is usually conducted to screen embryos that are going to be planted in in vitro fertilization (ivf) reproduction.5 this technique can identify sex and genetic abnormalities that may occur in the embryo.6 pgd is different from prenatal diagnosis, where a prenatal procedure is performed at the time of pregnancy.7 pgd assists in identifying the presence or absence of genetic defects by discerning genes or chromosomes in the embryos.8 the purpose of pgd is to get a healthy baby and prevent diseases in the baby that will be planted in ivf reproduction. the question arises: what if the pgd process shows that none of the embryos can be planted through ivf? in other words, what would happen to the embryos if all the embryos screened were affected by genetic diseases? pgd has been used in reproduction therapy since the first live birth in 1990 to test for genetic abnormalities in embryos, wherein later hla typing (tissue matching for human leukocyte antigen) was included in the procedure to become the saviour sibling procedure in 2000.9 therefore, pgd is utilized during an ivf cycle not only to determine genetic conditions but also to match tissue-type, i.e., hla typing.10 this is significant compared to the fact that when pgd was first announced, nobody could have predicted its potential. 11 pgd combined with tissue typing allow a saviour sibling where a sibling is born to become a hematopoietic stem cell (hscs) 3 julie everett-hincks and mark henaghan, “gene editing in aotearoa -legal considerations for policy makers,” victoria university of wellington law review 50 (2019): 515. 4 sandra o samardžić, “saviour siblings current overview, dilemmas and possible solutions?,” medicine, law & society 12, no. 2 (2019): 90. 5 thomas lemke and jonas rüppel, “social dimensions of preimplantation genetic diagnosis: a literature review,” new genetics and society 38, no. 1 (2019): 88. 6 harvey j. stern, “preimplantation genetic diagnosis: prenatal testing for embryos finally achieving its potential,” journal of clinical medicine 3, no. 1 (2014): 281. 7 samardžić, loc.cit. 8 stern, loc.cit. 9 lisa cherkassky, “the wrong harvest: the law on saviour siblings,” international journal of law, policy and the family 29, no. 1 (2015): 37 10 malcolm k. smith, “the human fertilisation and embryology act 2008: restrictions on the creation of ‘saviour siblings’ and the relevance of the harm principle,” new genetics and society 32, no. 2 (2013): 155. 11 lisa cherkassky, “twenty-seven years of controversy: the perils of pgd,” international journal of pediatrics and neonatal health 1, no. 6 (2017): 141. udayana journal of law and culture vol. 7 no. 1, january 2023 61 donor for their sibling.12 hscs are multipotent primordial cells that may grow into all types of blood cells found in various organs, such as the bone marrow and umbilical cord blood.13 hscs transplantation is performed by matching the donor's human leukocyte antigen (hla) and the recipient (hla-typing) so that relatives with identical hla can be considered a preferred donor.14 the first case of a saviour sibling occurred in the united states in 2000 when a baby named adam nash was born to be a donor to his sibling molly, a rare anemia patient.15 a similar case occurred in india in 2018, where kavya solanki was born to save her brother abhijit who suffered from thalassemia major.16 thalassemia major is a hereditary (genetic) disease due to decreased and imperfect production of hemoglobin (red blood cells). 17 patients with thalassemia require regular blood transfusions to prevent anemia.18 abhijit's parents then tried to find a permanent solution to their son's illness and found out about the saviour sibling procedure.19 finally, after the doctor matched and selected the embryos for six months, his sister's embryo was planted in his mother's womb.20 after the younger sister was born and reached 16-18 months, bone marrow transplantation surgery was performed.21 to this day, abhijit no longer needs blood transfusions.22 kavya also seems to be doing well and has been mainly staying indoors due to covid-19 pandemic.23 this saviour sibling procedure raises the question of whether babies born to become tissue or cell transplant donors are legally and ethically justified. it is conceded that this saviour sibling procedure can help with medical treatment, however, it is an exploitation of a legal subject. ethical principles relating to a contravention of technology development are 12 chee ying kuek, sharon kaur gurmukh singh, and pek san tay, “the need to address legal ambiguity on conceiving saviour siblings in malaysia,” health policy and technology 8 (2019): 278 13 ji yoon lee and seok-ho hong, “hematopoietic stem cells and their roles in tissue regeneration,” international journal of stem cells 13, no. 1 (2019): 1 14 kuek, singh, and tay, loc.cit. see also rani tiyas budiyanti,“aspek etika preimplantation genetic diagnosis (pgd) pada teknologi bayi tabung,” cermin dunia kedokteran 42, no. 7 (2015): 543. 15 samardžić, op.cit., 91. 16 british broadcasting corporation, “india’s first ‘saviour sibling’ cures brother of fatal illness,” 17 evy sari sutrisnaninfsih, suharjono, and bambang sudarmanto, “analysis of deferasirox and deferipron use in children with pediatric β-thalassemia major,” folia medica indonesiana 52, no. 1 (2016): 42. 18 ibid., 43. 19 british broadcasting corporation, loc.cit. 20 ibid. 21 ibid. 22 ibid. 23 the week, “a life made, a life saved”, https://www.theweek.in/health/cover/2021/02/24/a-life-made-a-life-saved.html . https://www.theweek.in/health/cover/2021/02/24/a-life-made-a-life-saved.html legal and ethical discourse of saviour sibling: how should indonesia respond to this new trend? ra antari innaka and muhammad jibril 62 associated with moral, legal, socioeconomic, and health issues.24 according to k. bertens, there is a close relationship between ethics and law. bertens put forward two reasons to support this. first, the implementation of the law must be accompanied by ethics because the execution of laws that do not meet moral norms is worse than no law. second, laws often embody and confirm moral ideas. the law is essentially a crystallization of morals25 and is in line with the maxim quid leges sine moribus (the law is meaningless if it is not accompanied by morality). therefore, it also implies a relationship between ethics and health law. in health services, especially medicine, doctors must uphold ethical principles.26 for example "hippocratic oath" as the basis of the first medical ethics. ethics in health law is also called "bioethics", an interdisciplinary study related to the development of medical and biological sciences both on a micro and macro scale in the present and the future.27 issues on bioethics include legal, social, political, economic, religious, cultural, and medical (health) fields. in the medical field, some examples are euthanasia, abortion, artificial reproductive technology, and genetic engineering. according to beauchamp and childress, there are four principles in bioethics, namely: beneficence, non-maleficence, respect for autonomy, and justice.28 the saviour sibling procedure in the kavya solanki case is closely related between ethics and law and is currently known as a bioethics problem. pgd technological advancements may enable the savior sibling operation in indonesia. adopting such technology seems urgent considering more than 10,531 thalassemia patients and an estimated 2,500 babies are born with thalassemia yearly in indonesia.29 albeit it is conceded that there is a further discourse on the issue of collective family interest, the saviour sibling procedure allows parents to choose a to-be-child to save the life of a child in their family.30 nonetheless, this begs the question of whether the tobe-child is just a mere means to an end. in other words, there are many 24 the innovation and development of medical technology are so rapid in various health service sectors. therefore, using newly invented health service technology must always consider ethical aspects to anticipate malpractice, fraud, and moral hazard. see ambar dwi erawati, and hargianti dini iswandari,"ownership of medical records in indonesia: discourse on legal certainty and justice," udayana journal of law and culture 6, no. 2 (2022): 197. 25 k bertens, sekitar bioetika (yogyakarta: kanisius, 2018), 116. 26 hardisman, “opini publik tentang malpraktek kedokteran,” jurnal pendidikan kedokteran indonesia 2, no. 1 (2013): 17. 27 m jusuf hanafiah and amri amir. etika kedokteran dan hukum kesehatan (jakarta: egc, 2009), 3. 28 h widdows, global ethics: an introduction (durham: acumen, 2011), 94. 29 kementerian kesehatan republik indonesia, “angka pembawa sifat talasemia tergolong tinggi.” https://www.kemkes.go.id/article/view/19052100003/angka-pembawasifat-talasemia-tergolong-tinggi.html 30 michelle taylor-sands, “saviour siblings and collective family interests,” monash bioethics review 29, no. 2 (2010): 11. https://www.kemkes.go.id/article/view/19052100003/angka-pembawa-sifat-talasemia-tergolong-tinggi.html https://www.kemkes.go.id/article/view/19052100003/angka-pembawa-sifat-talasemia-tergolong-tinggi.html udayana journal of law and culture vol. 7 no. 1, january 2023 63 opposing interests and these concerns are what make regulation in this issue so challenging.31 many debates then have been centered on whether it is acceptable to choose embryos in order to ensure that the eventual kid would be a suitable tissue match for a sick older sibling.32 in other words, a bioethical issue has not been addressed comprehensively.33 recent work in bioethics suggests the need to advance health and social justice globally and to advance justice to be in line with foundational moral commitments for public health research, practice, and policy.34 in indonesia, the issue of health technology and health technology products is regulated in law no. 36 of 2009 concerning health (health law).35 in particular, article 44 of the health law regulates the possibility of developing technology and technological products by testing humans and animals, so the question arises whether it is permissible to select or test embryos in vitro to be used as "factories" for organs to be donated to others in indonesia. nonetheless, the government regulation supposed further to regulate the implementation of human trials in indonesia has yet to be formed. in other words, it is argued that the pgd and saviour sibling regulations need to be clarified in indonesia. therefore, this paper seeks to answer two research questions. first, how is saviour sibling regulated in various countries other than indonesia? this question aims to assess the legality of savior sibling practice in countries other than indonesia in a comparative means. second, what are the legal and ethical implications of saviour sibling procedures in indonesia? this question aims to discuss and evaluate the consequences of savior sibling procures from the perspectives of law and ethics. this article implies cross-discipline research. it is primarily legal research that has a basis in the field of health law, human rights law, and private law. however, non-legal sources and science-based analysis generally come from medical and health perspectives. the analysis is established by using normative, comparative, and ethical approaches. the normative approach explains how legal principles and existing regulations govern pre-implantation genetic diagnosis in indonesia, especially regarding children's protection. the comparative approach explains how saviour sibling is regulated in other countries, particularly regarding whether 31 madeleine whelan, “saviour siblings: the role of the welfare principle within the law of assisted reproductive technology in england and wales (part 2),” family law, no. 2 (2021): 252–260. 32 heather zierhut et al., “more than 10 years after the first ‘savior siblings’: parental experiences surrounding preimplantation genetic diagnosis,” journal of genetic counseling 22, no. 5 (2013): 600. 33 barbara pfeffer-billauer. “savior siblings, protective progeny, and parental determinism in the age of crispr-cas.” chicago-kent law review 96, no. 1 (2022): 177. 34 bridge pratt, et.al, “ justice: a key consideration in health policy and systems research ethics” bmj global health 5, no.4 (2020): 2. 35 law no. 36 of 2009 concerning health, arts. 42-45. legal and ethical discourse of saviour sibling: how should indonesia respond to this new trend? ra antari innaka and muhammad jibril 64 countries generally allow or prohibit pre-implantation genetic diagnosis combined with hla-typing for saviour sibling procedures. the ethical approach concerns the importance of regulating the ethical aspects of technological progress used in savior siblings. the third approach is the social science and the health law approach. 2. result and analysis 2.1. comparison of saviour sibling regulation in various countries indonesia is a developing country based on the world economic situation and prospects (wesp) 2021 published by the united nations.36 thus, the comparison should start by looking at how saviour siblings are regulated in developing countries and countries neighboring indonesia. next, a comparison of saviour sibling regulation in developed countries will be carried out to see how they differ from developing countries. 2.1.1. developing countries this research chooses malaysia, india, and serbia as examples of how developing countries37 regulate the issue of savior siblings. malaysia and india would serve as examples of the neighboring countries of indonesia. malaysia, in particular, has a pretty similar culture to indonesia while india is acknowledged as one of the most high-technology countries in developing countries. serbia was designated as an example of a non-neighboring country. a. malaysia malaysia does not have legislation specifically regulating assisted reproductive technology (art). 38 the saviour sibling procedure or more specifically the use of pgd and hla-typing technology is regulated in the guideline on assisted reproduction established by the malaysian medical council (mmc).39 this guideline contains two specific articles on pgd and saviour siblings. article 14 of the guideline states that pgd is used mainly for the diagnosis of many diseases and to determine the sex of the embryo. next, article 15 stipulates prohibited/unacceptable practices such as the prohibition of producing clones. therefore, although these two articles indicate that experiments have been carried out to select embryos to match 36 united nations. “world economic situation and prospects 2021” (new york: united nations, 2021), 126. 37 the three countries are classified as developing countries by some indexes. see for example world data, “developing countries,” https://www.worlddata.info/developingcountries.php and department of foreign affairs and trade of australia, list of developing countries as declared by the minister for foreign affairs, march 2022, https://www.dfat.gov.au/about-us/publications/list-of-developing-countries-as-declaredby-the-minister-for-foreign-affairs 38 kuek, singh, and tay, op.cit., 279. 39 guideline on assisted reproduction 2006, arts, 14-15. https://www.worlddata.info/developing-countries.php https://www.worlddata.info/developing-countries.php https://www.dfat.gov.au/about-us/publications/list-of-developing-countries-as-declared-by-the-minister-for-foreign-affairs https://www.dfat.gov.au/about-us/publications/list-of-developing-countries-as-declared-by-the-minister-for-foreign-affairs udayana journal of law and culture vol. 7 no. 1, january 2023 65 hla with children who need hematopoietic stem cell transplantation, this regulation does not explicitly regulate whether it is permissible to give birth to rescue siblings.40 so it can be concluded that malaysia does not expressly allow or prohibit the procedure of saviour sibling. kuek, singh, and tay argue that article 14 and article 15 of the mmc are ambiguous, which makes the health industry in malaysia assume that the saviour sibling procedure is prohibited because the testing and selection of embryos are not intended for the health of the prospective child himself.41 b. india india adopted a pre-conception and pre-natal diagnostic techniques ("prohibition of sex selection") act 1994 that specifically covers the pgd. this act was created basically as a prohibition on choosing the sex of the future child before or after conception. the pre-natal diagnostic (pnd), according to this act, also includes the diagnosis before conception.42 thus pnd includes pgd for this purpose. the prohibition of sex selection act provides that pnd is prohibited unless it is intended to detect the presence of chromosomal abnormalities, metabolic genetic diseases, hemoglobinopathy, genetic diseases related to the genitals, congenital anomalies, and other abnormalities or diseases mentioned by the central supervisory board. 43 therefore, india allows the pgd because saviour sibling procedure in the pgd stage utilizes pgd for detecting genetic diseases, i..e, thalassemia major. furthermore, the prohibition of sex selection act provides requirements for pnd, one of which is when a woman is pregnant or whose partner has a family history of mental retardation or physical abnormalities, or other genetic diseases. 44 in conclusion, india expressly allows the saviour sibling procedure. c. serbia serbia regulates assisted reproduction in the law on bio-medically assisted fertilisation (lbmaf). although serbian law allows the use of pgd technology, article 25 and article 47 of the lbmaf provide that the use of pgd is only intended for couples who need assistance due to their infertility. 45 thus, it can be concluded that the use of pgd for saviour sibling procedures has not been allowed in serbian law.46 although it is not yet allowed, samardžić argues that the process of donating tissues or cells 40 kuek, singh, and tay, loc.cit. 41 ibid., 281. 42 pre-conception and pre-natal diagnostic techniques act 1994, section 2. 43 ibid., art. 4 (2). 44 ibid., art. 4 (3). 45 samardžić, op.cit., 96; law on bio-medically assisted fertilisation 2017, art. 25 and art. 47. 46 ibid., 104. legal and ethical discourse of saviour sibling: how should indonesia respond to this new trend? ra antari innaka and muhammad jibril 66 does not violate the child's right to health, since by law stem cells should only be taken from the umbilical cord or bone marrow.47 2.1.2. developed countries this paper chose the united kingdom of great britain and northern ireland (uk), the united states of america (usa), australia, and spain as examples of developed countries. the uk is known as one of the progressive pioneers in regulating saviour sibling while the usa is leading in both health law and health technology. australia is mainly chosen due to its geography, which is the neighbor of indonesia. the choosing of spain was by considering its valuable contributions to the oviedo convention 1997, including as the host country for the conference that resulted in this convention. a. the united kingdom of great britain and northern ireland for a long time, the uk has regulated medical procedures and has incorporated the creation of saviour siblings with government involvement48 and court ruling. 49 the uk permits embryo testing (pgd) if a child is suffering from a serious medical condition that can be cured by the administration of stem cells derived from the umbilical cord, bone marrow, or other tissues belonging to the prospective child.50 this implies that the uk allows the saviour sibling procedure that has an implication not only to test whether their embryos contain genetic diseases but also allowed solely for tissue typing.51 based on this, it can be concluded that the uk is very progressive regarding pgd. b. the united states of america the usa has no regulations established by the government or specific legal guidelines on saviour siblings, so the use of pgd technology for saviour siblings procedures is left to discretion and consensus between health care providers and patients.52 some organizations that establish guidelines on ivf, pgd, and reproductive medicine such as the american society for 47 ibid., 102. 48 nonduduzo penelope gumede, “the rights and regulation of saviour siblings in south africa: an ethical and jurisdictional comparative” (master thesis, masters in law, university of kwazulu-natal, january 2020), 75. 49 see dyer c. law, “lords give the go ahead for creation of "saviour siblings". bmj 330 (2005):1041. 50 human fertilisation and embryology act 2008, para. 1za (1) (d). 51 madeleine whelan, “saviour siblings: the role of the welfare principle within the law of assisted reproductive technology in england and wales (part 1),” family law, no. 1 (2021): 83. 52 zachary e. shapiro, “savior siblings in the united states: ethicalconundrums, legal and regulatory void,” washington and lee journal of civil rights and social justice 24, no. 2 (2018): 443–444. udayana journal of law and culture vol. 7 no. 1, january 2023 67 reproductive medicine, the american congress of obstetricians and gynecologists, and the american college of medical genetics do not provide strict arrangements on saviour siblings.53 moreover, these organizations do not provide official statements or attitudes towards saviour siblings procedures, so their guidelines do not address saviour siblings comprehensively.54 in conclusion, the arrangement in america related to the saviour sibling is still in the grey zone. c. australia australia is a federal country with different states and does not have uniform legislation for reproductive technologies. 55 the commonwealth of australia (federation) parliament does not have a constitutional authority to regulate assisted reproductive technology in australia.56 thus, the authority is left to the authority of the state. nonetheless, the national health and medical research council (nhmrc), a commonwealth legal authority, has published non-legislative guidelines on assisted reproductive technology which are "voluntary" arrangements for states, i.e., no binding force for states to implement them. 57 the nhmrc directive is titled ethical guidelines on the use of assisted reproductive technology in clinical practice and research 2017 (art guidelines). it should be noted that state legislation, national professional standards, and ethical principles govern assisted reproductive technology in australia.58 article 8.15.1 of the art guidelines provides that preimplantation genetic testing (pgt), which consists of preimplantation genetic diagnosis (pgd) and preimplantation genetic screening (pgs), should only be used to: fight genetic conditions, diseases, or abnormalities that may significantly limit the quality of life of the person to be born; choose embryos with tissue suitable for stem cell treatment intended for parents, siblings or other siblings; or increase the probability of being born. states in australia, on the other hand, have different approaches regarding assisted reproductive technology. 59 although the settings vary, their general policy is that pgd is only allowed to obtain genetic 53 ibid., 447. 54 ibid. 55 gumede, op.cit., 72. 56 australian constitution 1901, section 51. 57 michelle taylor-sands, “selecting ‘saviour siblings’: reconsidering the regulation in australia of pre-implantation genetic diagnosis in conjunction with tissue typing,” journal of law and medicine 14 (2007): 552. 58 michelle taylor-sands et al., “non-medical sex selection in australia: public views and bioethical concerns,” qut law review 18, no. 2 (2019): 44–76. 59 malcolm k smith. saviour siblings and the regulation of assisted reproductive technology (new york: routledge, 2016), 10–11. legal and ethical discourse of saviour sibling: how should indonesia respond to this new trend? ra antari innaka and muhammad jibril 68 compatibility with sick relatives and also to prevent "real risks in the future, where the embryo will suffer from severe genetic diseases".60 d. spain the regulation on assisted reproductive technology in spain is provided for in the assisted reproductive technology act 2016 (ley de técnicas de reproducción humana asistida 2016) in which article 12.2 of the act provides that there are only certain conditions under which the embryo can be examined to attempt histocompatibility with third parties. 61 at the international level, the oviedo convention 1997, a convention for the protection of human rights and dignity concerning the application of biology and medicine established in spain, provides that the taking of regenerative tissues of a person, who has no capacity to give consent can be allowed if these conditions are met, namely:62 first, no suitable donor has the ability to give consent. second, the recipient is the brother or sister of the donor. third, tissue donations should have the potential to save the life of the recipient. fourth, the granting of permission as referred to in article 6 paragraphs 2 and 3 has been given specifically and in writing, following existing law and with approval from the competent body. fifth, potential donor recipients did not refuse. therefore, it can be concluded that spain generally allows saviour siblings with several caveats. next, after providing a comparison of the arrangement of saviour sibling procedures in other countries, the question then is how to regulate saviour siblings in indonesia and its ethical implications. 2.2. legal and ethical implications of saviour sibling procedures in indonesia 2.2.1. preimplantation genetic diagnosis policy framework article 28h paragraph (1) of the 1945 constitution of the republic of indonesia guarantees that everyone has the right to live a life of physical and mental well-being. this constitutional provision is one of the bases for the establishment of the health law besides article 27h paragraph (1) and article 34 paragraph (3). the health law regulates various aspects of the health sector, one of which is the technology and technology product section which is in chapter v on resources in the health sector. this section regulates, for one, the technological trials of humans. article 44 of the health law provides for the possibility of developing technology and technological products with human trials. 60 alejandra zúñiga fajuri, “born to donate: proposals for ‘savior sibling’ regulation in latin america,” colombia médica 49, no. 3 (2018): 230. 61 zúñiga fajuri, loc.cit. 62 oviedo convention 1997, art. 20. udayana journal of law and culture vol. 7 no. 1, january 2023 69 while research in health sciences and the medical field is growing in indonesia, the quality and ethical standards for research still need to be developed appropriately. developing quality and ethical standards through international collaborative research activities become necessary. it would avoid conflicts of interest, scientific misconduct, poor informed consent, unethical use of subjects (human, animal, plantation, without a material transfer agreement (mta), and the occurrence of ethics imperialism. 63 therefore, research should pay attention to the humanities, ethics, legal and professional (help). the european union has developed standards for researchers, namely ethics for researchers.64 one of the provisions in the ethics for researchers stipulates that research related to adult stem cells and embryonic stem cells will not be allowed and financed by the government if it does not pay attention to or heed the ethical provisions for researchers of the european commission and the provisions on human rights.65 regulations on research and development of health in humans are regulated in government regulation no. 39 of 1995 concerning health research and development (gr 39 of 1995). gr 39 of 1995 regulates research not only on humans but also regulates research and development of health in animals, plants, mechanical remains, and the environment. thus, it is the general regulation of health research and development for humans, animals, and plants.66 in research for humans, families, and communities, there must be written permission and consent from the person concerned or it can also be given by his parents if the person concerned is not legally capable or because his health and physique are in no way possible to give his consent or the person concerned has passed away and his body will be used as an object for health research and development. the written consent must also be given by the head of the family if the object of the research is the family and the written consent of the regent if the object of research is the community. furthermore, gr 39 of 1995 determines that the information that must be provided to humans, families, and the community as the object of research includes: a) the purpose of health research and development and the use of the results; b) guarantees of confidentiality about identity and personal data; c) the methods used; d) risks that may occur, and; e) things 63 see soenarto sastrowijoto et al. buku putih universitas gadjah mada: inspirasi ugm untuk indonesia “bioetika”: meneguhkan kembali etika kehidupan berbangsa dan bernegara (yogyakarta: pusat kajian bioetik dan humaniora kedokteran, 2014), 17. 64 directorate-general for research and innovation (european commission), ethics for researchers: facilitating research excellence in fp7 (lu: publications office of the european union, 2013), https://data.europa.eu/doi/10.2777/7491 65 ibid., 16. 66 government regulation no. 39 of 1995 concerning health research and development, art. 5. https://data.europa.eu/doi/10.2777/7491 legal and ethical discourse of saviour sibling: how should indonesia respond to this new trend? ra antari innaka and muhammad jibril 70 that need to be known by the person concerned in the context of health research and development.67 in indonesia, regulations on service and research ethics need to be developed by considering diverse local wisdom. local wisdom is required since ethics may be readily adopted if the local community believes in its implementation. 68 culture in indonesia with thousands of tribes from sabang to merauke, of course, there is a lot of local wisdom that can be used as the basis for the preparation of ethical regulations.69 local wisdom must also be maintained to avoid moral imperialism and to prevent other nations from forcing the use of their moral values or changing a nation’s moral values according to their interests.70 various tribes in indonesia are also influenced by their religions (islam, christianity, catholicism, hinduism, buddhism, and kong hu chu).71 in indonesia, regulations on reproductive health are regulated in government regulation no. 61 of 2014 concerning reproduction health which includes: 72 a) maternal health services; b) indications of medical emergencies and rape as exceptions to the prohibition of abortion; c) assisted reproduction or pregnancy outside the natural way. specifically reproductive health services with the help of birth outside the natural way, it is further regulated in ministry of health regulation no. 43 of 2015 concerning the implementation of reproductive services with assistance or pregnancy outside the natural way (moh regulation 43 of 2015). according to this ministerial regulation, assisted reproductive technology services is an effort to obtain a pregnancy outside the natural way without going through the process of conjugal relationship (copulation) if the natural way does not obtain results, by bringing together the husband's spermatozoa with the wife's egg in the tube.73 moh regulation 43 of 2015 also determined that there are only two ways to provide assisted reproductive technology, namely, conventional and intra cytoplasmic sperm injection (icsi). it also regulated the need for counselling in advance and the existence of informed consent before the assisted reproductive technology service action is carried out. however, moh regulation 43 of 2015 does not cover the implementation of reproduction with the aim of a saviour sibling. a weak legal framework on health technology with human subjects is indicated by the abstention of either a government regulation that explicitly regulates the implementation of human trials or a government regulation 67 ibid., art. 10. 68 sastrowijoto et al., op.cit., 13. 69 ibid. 70 ibid. 71 ibid. 72 government regulation no. 61 of 2014 concerning reproduction health, art 2. 73 ministry of health regulation no. 43 of 2015 concerning the implementation of reproductive services with assistance or pregnancy outside the natural way, art.1.1 udayana journal of law and culture vol. 7 no. 1, january 2023 71 that establishes a supervisory agency for the use of technology and technological products in health. it is foreseen that lack of supervision of the use of pgd technology is a current problem that can cause other new problems in the future. research on stem cells and human embryos is an issue of concern in bioethics. the explanation of article 44 (2) of the health law stipulates that trials of human subjects must refer to four principles of bioethics: (1) respect for persons; (2) beneficence; (3) nonmaleficence; and (4) justice.74 this shows that the principles used by the government of indonesia in trials with human research subjects above follow the principles of bioethics proposed by beauchamp and childress. 2.2.2 the concern on children whose embryos have been tested through pre-implantation genetic diagnosis the question that arises is whether the saviour sibling procedure through pgd and tissue typing violates human rights. in answering this question, it is necessary to ascertain in advance the legal status of the embryo itself. human beings are the subject of law from birth to death.75 however, even before being born, man can become the subject of law. from a private law perspective, the indonesian civil code states that a child in the womb will be considered as having been born if he has an interest, for example as an heir.76 however, if the child dies at birth, it is considered that it never existed. this provision is in line with the maxim "nasciturus pro iam nata habetur quatiens de cammadis eius agitur" which means that an unborn child is considered to have been born if it has an interest. the embryo is formed from the confluence between the sperm and the ovum/egg which initially forms a zygote and then the implantation of a fertilized egg in the uterine wall occurs.77 the zygote divides into two, four, eight and so on until it forms an embryo.78 in pgd, the meeting of sperm and ovum (insemination) is carried out outside the uterus, namely in the petri dish.79 the embryos resulting from the confluence of the ovum and 74 amru hydari nazif, “isu nasional dalam bioetika di indonesia” (prosiding seminar nasional bioetika pertanian, 2009), 4–5, http://repository.pertanian.go.id/handle/123456789/11768 75 shh davis, “the legal personality of the commonwealth of australia,” federal law review 47, no. 1 (2019): 5. 76 indonesian civil code, art.2. 77 antonietta rosa silini et al., “perinatal derivatives: where do we stand? a roadmap of the human placenta and consensus for tissue and cell nomenclature,” frontiers in bioengineering and biotechnology 8 (2020): 4. 78 ibid. 79 judith daar, “a clash at the petri dish: transferring embryos with known genetic anomalies,” journal of law and the biosciences 5, no. 2 (2018): 228–229. http://repository.pertanian.go.id/handle/123456789/11768 legal and ethical discourse of saviour sibling: how should indonesia respond to this new trend? ra antari innaka and muhammad jibril 72 sperm will then be selected as the best to implant in the uterus.80 embryos implanted in the womb will develop or live until they become fetuses.81 the development of the zygote to form an embryo because cell division occurs indicates the existence of life in the embryo. based on this, it becomes a question whether embryos that are being matched outside the womb can be considered legal subjects. the subject of law is everything that can obtain rights and obligations from the law.82 legal subjects other than human beings as individuals are also legal entities. human as a subject of law means a person as a person with rights and obligations from birth to death. however, the position of man as a subject of law can begin earlier, that is, from the time in the womb of his mother if his interests require it, for example in the case of inheritance where the child in the womb must appear as an heir. although the baby in the womb is already considered a legal subject if his interests require it, in carrying out legal acts, he still has to be represented by his mother who lives longer. in addition, article 2 of the civil code further stipulates that, although the child in the womb can be considered a legal subject, on condition that he is born alive. born dead then the baby in the womb is considered to have never existed. this rule is an exception to the rights called legal fiction. it is called legal fiction because there is currently no more detailed arrangement on the subject. it is important to determine the position of humans as a subject of law because every human being is a person with rights and obligations from birth to death. this means that every human being has legal authority but does not necessarily have the authority to act to exercise his rights and obligations. humans as a subject of law are not always capable of performing legal acts. article 1329 of the indonesian civil code provides that everyone is considered capable. capable, according to j. satrio is if a person can account for and understand the consequences of his actions, in other words, he can do a legal act himself with rare legal consequences. a contrario, the subjects of law who are considered capable according to the civil code are adults and not those who are placed under guardianship. if it is connected with articles 2, 836, and 899 of the indonesian civil code, then the embryo can already be referred to as a subject of law because if the interests of the baby are in need, then they can be considered as heirs and can obtain inheritance through a will. in the pgd procedure where the saviour sibling is made, the process begins with bringing together the father's sperm and the mother's ovum in vitro in a petri tube/dish. sperm and ovum meet and form a genome which is a new identity, and this identity will be carried throughout life. 80 ibid. 81 antonietta rosa silini et al., loc. cit. 82 soedikno mertokusumo. mengenal hukum (yogyakarta: ugm, 2010), 110. udayana journal of law and culture vol. 7 no. 1, january 2023 73 fertilization between the ovum and sperm then forms a zygote that develops into an embryo. the thousands of embryos that are formed are then selected in a certain way and only embryos with the desired genetic features will be implanted into the mother's womb. residual embryos that are free from genetic problems will be frozen for future use, while those that are not selected will be destroyed. the question that arises is, is the extermination of embryos right according to bioethics rules? k. bertens argued that embryos already have a genetic identity and personal identity.83 therefore, it has a moral status, just like a person who has been born, alive. based on the aforesaid opinion, the embryo already deserves a respect to develop. embryos can also be categorized as vulnerable human beings. in 2005, the united nations educational, scientific and cultural organization (unesco) issued a document regulating groups with vulnerabilities, namely the universal declaration on bioethics and human rights (udbhr). it is a non-binding instrument that has core principles that can apply to saviour siblings i.e., human dignity and the best interests of the child. 84 during the drafting of udbhr, international bioethics committee conducted a series of consultations with national bioethics experts in various countries, including indonesia. 85 indonesia recognizes and upholds human rights and basic human freedoms as rights that are naturally inherent in and inseparable from human beings, which must be protected, respected, and enforced for the sake of increasing the dignity of humanity, welfare, happiness, intelligence, and justice. 86 moreover, the practice of medicine in indonesia is carried out based on the philosophy of pancasila87 and is based on scientific values, benefits, justice, humanity, balance, as well as patient protection and safety. 88 therefore, every doctor in indonesia is also obliged to respect human dignity in every one of their practices.89 the udbhr underlines respect for human vulnerability and personal integrity. 90 it stipulates that human vulnerability should be taken into account in applying and advancing scientific knowledge, medical practice, and associated technologies. further, individuals and groups of special 83 k bertens. sekitar bioetika (yogyakarta: kanisius, 2018), 194. 84 gumede, op.cit., 46-47. 85 michael kirby, “human rights and bioethics: the universal declaration of human rights and unesco universal declaration of bioethics and human rights,” journal of contemporary health law and policy 25 (2009): 321. 86 law no. 39 of 1999 concerning human rights, art. 2. 87 pancasila is a state ideological values of the republic of indonesia that consist of five precepts. see i gusti agung ika laksmi mahadewi, ni komang tari padmawati, and i gusti agung mas rwa jayantiari," notary in indonesia: how are state fundamental values reflected in law and professional ethics?" udayana journal of law and culture 6, no. 2 (2022): 205, 214. 88 law no. 29 of 2004 concerning medical practice, art. 2. 89 code of ethics of doctor, art 8. 90 universal declaration on bioethics and human rights, art. 8. legal and ethical discourse of saviour sibling: how should indonesia respond to this new trend? ra antari innaka and muhammad jibril 74 vulnerability should be protected and the personal integrity of such individuals respected”. 91 again, referring to indonesian civil code and udbhr, the embryo is a persona and a vulnerable human being. in the saviour sibling, the embryo will be screened with dna so that later it will become a healthy baby without carrying bad genes. so that when he is born after he is over six months old, his stem cells can be transplanted into his brother. based on the discussion before the purpose of the saviour sibling process that uses pgd technology is for health issues and not for non-medical reasons. in addition, stem cells would only be taken from the umbilical cord or bone marrow which brings no harm to the child. lastly, this pgd process gives the future child a healthy life without disease. as a result, no human rights are infringed because the kid would have a life of physical and mental well-being if they did not have anything against the process of saviour sibling. 3. conclusion the comparison analysis suggests that the national policy of various countries indicates disparities in the saviour sibling procedure using pgd technology. the arrangement for this procedure is still in the grey zone, reflecting a dilemma between bioethics and technological advances. developed countries, as discussed in this paper, allow saviour sibling procedures (with their caveats) expressly, while others only allow pgd technology for assisted reproduction or the future child's health. however, questions regarding the bioethics of the process are always remaining. it is paramount that saviour sibling procedure is utilized only for health issues and not for non-medical reasons. otherwise, the pgd technology may be utilized for other purposes, choosing the gender, skin colour, or hair colour of the baby. in indonesia, however, aside from the lack of a government regulation that mainly controls the implementation of human trials, there is also a need for a government regulation that establishes a supervisory agency for the use of technology and technical goods concerning health. the implication is that only some organizations in indonesia can oversee the application of pgd technology. based on this, indonesian regulations on health technology involving human subjects need to be revised. regarding ethical implications, further regulations on service and research ethics, in this case, saviour siblings, need to be developed by considering diverse local wisdom. local wisdom is required because ethics will be easier to adopt if the local community believes in its execution. in advancing the content of this article, further research may be carried out on the protection of embryos, pgd procedures in indonesia, and the need for 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https://www.dfat.gov.au/about-us/publications/list-of-developing-countries-as-declared-by-the-minister-for-foreign-affairs https://www.kemkes.go.id/article/view/19052100003/angka-pembawa-sifat-talasemia-tergolong-tinggi.html https://www.kemkes.go.id/article/view/19052100003/angka-pembawa-sifat-talasemia-tergolong-tinggi.html udayana journal of law and culture vol. 7 no. 1, january 2023 79 the week. “a life made, a life saved,” the week magazine, july 3, 2021. https://www.theweek.in/health/cover/2021/02/24/a-life-made-alife-saved.html world data, “developing countries,” https://www.worlddata.info/developing-countries.php https://www.theweek.in/health/cover/2021/02/24/a-life-made-a-life-saved.html https://www.theweek.in/health/cover/2021/02/24/a-life-made-a-life-saved.html https://www.worlddata.info/developing-countries.php vol. 4, no. 1, january 2020, 62-80 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3398 e-issn 2549-0680 62 interest dispute settlement related to workers’ health care security in indonesia dewa nyoman rai asmara putra* faculty of law, udayana university, bali, indonesia kadek agus sudiarawan** faculty of law, udayana university, bali, indonesia ari mahartha*** rah (the house of legal experts) law office, bali, indonesia article received: 17th september 2019; accepted: 27th january 2020; published: 31st january 2020 abstract the enactment of law number 24 of 2011 concerning the social security organizing body (bpjs law) has legal implications especially for employers and workers before the enactment of the bpjs law, the parties had already agreed that private health insurance as an organizer of workers' health insurance on collective labor agreement (cla). this condition provides a possibility for the emergence of conflicts of interest. the problem raised in this legal research is how is the regulation concerning the employers' obligations in the health insurance of workers after the enactment of the bpjs law; what are the legal implications if the cla in the company before the enactment of bpjs law has implemented the scheme of health insurance for workers through private insurance; and how the legal steps that can be taken in resolving disputes arising related to this matter. this study uses normative legal research methods with a statute approach and a case approach. the result of this research shows that after the enactment of bpjs law, the employer is obliged to register all of the workers to bpjs membership as the national provider of health care security system. in terms of double coverage of workers’ health insurance which impacted the company, the parties could negotiate to amend the cla based on mutual agreement and good faith. in terms of an interest dispute in implementing the cla about workers’ health insurance is happening in the future, legal actions that can be taken accordance with the provisions of the industrial relations disputes settlement law are bipartite, tripartite disputes settlement through mediation, conciliation, arbitration, and submit a lawsuit to industrial relations court keywords: collective labor agreement; health care security; bpjs law how to cite (chicago 16th): asmara putra, dewa nyoman rai, kadek agus sudiarawan, and ari mahartha. “interest dispute settlement related to workers’ health care security in indonesia.” udayana journal of law and culture 4, no. 1 (2020): 62–80. https://doi.org/https://doi.org/10.24843/ujlc.2020.v04.i01.p04. doi: https://doi.org/10.24843/ujlc.2020.v04.i01.p04 * email corresponding author: dewar2566@gmail.com ** email : agus_sudiarawan@unud.ac.id ***email: ari.mahartha@gmail.com https://ojs.unud.ac.id/index.php/ujlc/issue/view/3398 https://doi.org/10.24843/ujlc.2020.v04.i01.p04 mailto:dewar2566@gmail.com mailto:agus_sudiarawan@unud.ac.id mailto:ari.mahartha@gmail.com interest dispute settlement related to workers’ health care security in indonesia dewa nyoman rai asmara putra, kadek agus sudiarawan and ari mahartha 63 1. introduction 1.1. background social security is the right of every citizen as mandated in the 1945 constitution of the republic of indonesia (the constitution of indonesian).1 this constitutional mandate was then further regulated into the law number 40 year 2004 concerning the national social security system ("nssslaw"). the nsss law has a philosophical foundation that every person has the right to social security to be able to fulfill the basic needs of a decent life and increase dignity towards the creation of a safe, just and prosperous indonesian society.2 social security which is the target area of the nsss law includes health insurance, work accident insurance, old-age pension, public pension, and life insurance. in the enactment of the nsss law, the social security programs are carried out by several bodies that implement each of the social security programs, including a. limited liability company (persero) workers' social security / jamsostek; b. limited liability company (persero) savings fund and civil servant insurance / taspen; c. limited liability company (persero) armed forces / asabri social insurance; and d. limited liability company indonesian health insurance (askes). in some periods of time the implementation of social security by using the institutional pattern as stated in the national social security law, it is necessary to amend the implementation of the national social security program which aims to provide certainty of protection and social welfare for all people.3therefore, an organizing body in the form of a legal entity was formed based on the principles of mutual cooperation, non-profit, openness, prudence, accountability, portability, mandatory participation, mandate funds, and the results of the management of social security funds in full for program development and for the maximum extent possible the interests of the participants. the intended legal entity is the implementing agency of social security established under law number 24 year 2011 concerning the social security organizing body (badan penyelenggaraan jaminan sosial or "bpjs law"). with the enactment of the bpjs law, there are fundamental things that have amende in terms of the implementation of the national social security program that has implications for various existing stakeholders. one of the most fundamental and impactful changes is the "mandatory" nature of participation in social security programs for the entire population. in this paper, the subject of discussion is the social 1 jimly asshiddiqie. komentar atas undang-undang dasar negara republik indonesia tahun 1945, cetakan pertama (jakarta: sinar grafika, 2010), 135. 2 see the considering section of the act no. 40 year 2004 concerning the national social security system. 3 tonia warnecke & alex de ruyter. "the enforcement of decent work in india and indonesia: developing sustainable institutions." journal of economic issues 46, no. 2 (2012): 397-398. udayana journal of law and culture vol. 4 no. 1, january 2020 64 security program in terms of health, which after the enactment of the bpjs law, based on article 6 paragraph (1), the health security program is carried out by a legal entity called bpjs for health with a health security program named national health insurance (jkn). the amendment in the national health security pattern from what was originally held by pt askes (persero)4 based on the national social security system law which later transformed into the bpjs for health based on the bpjs law has implications for business actors which in the context of employment law are referred to as employers in terms of ensuring the health of their workers. this implication arises because there is a significant addition related to the national health insurance program in which after the enactment of the bpjs law, the employer is "obliged" to register himself and all of his workers into bpjs for health membership. this has become so felt the impact for the employer considering that prior to the enactment of the bpjs law, the employer is free to determine the health insurance program used to guarantee the health services of his workers. the health insurance program which is organized in collaboration with a private insurance company is one of the choices that is chosen by many employers to ensure the health of their employees before the enactment of the bpjs law. workers are also familiar with the use of health insurance by private insurance with various facilities and facilities offered by private health insurance providers. legal issues that then occur with regard to these conditions, namely the existence of an acting employer to shift the health insurance program for workers from those who originally used private insurance to a national health insurance program organized by bpjs for health. the transfer of the health insurance program does not necessarily lead to an easy path for the employer, due to the possibility of rejection from workers who have previously enjoyed the facilities provided by private health insurance and there is fear that the transfer of the health insurance program to bpjs for health will obtain facilities and decreased pleasure. this refusal from the workers becomes one of the important issues for the employer whose health insurance program using private insurance has been regulated and agreed to in a binding autonomous law for the parties, the collective labor agreement (cla). in this case, the employer seems to have no other choice but to continue to implement the contents of the collective labor agreement by imposing a health insurance program with private insurance and carrying out the bpjs law orders to register his workers as bpjs for health participants. such conditions certainly have an impact on the employer, who must bear health insurance coverage for his workers in a double (double coverage). 4tania murray li "the price of un/freedom: indonesia's colonial and contemporary plantation labor regimes." comparative studies in society and history 59, no. 2 (2017): 259-260. interest dispute settlement related to workers’ health care security in indonesia dewa nyoman rai asmara putra, kadek agus sudiarawan and ari mahartha 65 1.2. research problem based on the problem has been mentioned above then become the basis for the author as well as the background of this legal research. based on this background, as for some of the issues that will be discussed in this legal research are: 1) what is the arrangement of the company's obligations in workers' health coverage after the enactment of the bpjs law? 2) what are the legal implications that arise if the collective labor agreement of the company before the applicable bpjs law has implemented the worker health coverage scheme through private insurance?; and 3) what is the legal steps that can be taken in resolving disputes arising in connection with workers' health coverage at a company after the enactment of the bpjs law? the purpose of this legal research is to identify the company's liability arrangements for workers' health coverage after the enactment of the bpjs law; identify the legal implications that arise if the collective labor agreement before the law bpjs applicable has implemented the worker health coverage scheme through private insurance; as well as knowing the legal steps that can be taken in resolving disputes arising related to workers' health coverage at a company after the enactment of the bpjs law. 1.3. research methods in this paper, the research method used is normative legal research. normative legal research is research conducted through the study on laws and regulations5 that apply to a particular legal problem.6 in normative legal research, the object of study is legislation using a statute approach and case approach based on industrial relations cases that occur as implications of the existence of new regulations regarding obligations the employer to register all his workers in the membership of the national health insurance organized by bpjs for health. 1.4. theoretical framework/literature review article 7 paragraph (1) law number 13 year 2003 concerning manpower ("labor law") stipulates that the role of the government in terms of industrial relations is to establish policies and arrange workforce planning in the context of labor development. the government in formulating policies, strategies and implementing employment development programs is based on workforce planning. the manifestation of the role of the government, in this case, is nothing but stipulated into legal products 5 depri liber sonata, "metode penelitian hukum normatif dan empiris: karakteristik khas dari metode meneliti hukum." fiat justisia jurnal ilmu hukum 8, no. 1 (2014): 24-25. 6karen petroski, "legal fictions and the limits of legal language." international journal of law in context 9, no. 4 (2013): 488. udayana journal of law and culture vol. 4 no. 1, january 2020 66 that have the nature of regulating employment relations between workers and employers who are present as a counterweight. in the context of industrial relations, workers and employers can form a separate agreement between them which acts as a binding law between them. the provisions stipulated in the agreements made and agreed by the parties are referred to as autonomous law. autonomous law is legal provisions in the field of employment made by the parties involved in an employment relationship, both between the employer and the worker and between the employer and the worker union.7 however, the rules of employment law made by third parties who are outside the parties bound in the employment relationship are named heteronomous law.8 in this research, the autonomous law that will be used as the main focus in the discussion is autonomous law in a company created and agreed upon by the employer with a worker union, namely the collective labor agreement ("cla"). article 1 number 21 of the labor law defines collective labor agreement as an agreement resulting from negotiation between a worker/labor union or several worker/labor unions registered at the institution in charge of the manpower affairs and entrepreneurs or group of entrepreneurs, which contains working requirements, rights and obligations of parties. with the provisions made and agreed by the employer with the worker union as outlined in the cla, automatically there are other rights and obligations that must be fulfilled by the parties besides implementing the provisions of the legislation. this situation has implications for the employment relationship between the parties where there are possibilities that what is regulated in the autonomous law has a different arrangement than what is regulated in the legislation on the same object for example in terms of health care security coverage by the employer to the worker. in this case, the issue of differences in regulations regarding health insurance coverage in the cla and the legislations will be sensitive considering the different interests of the parties in viewing health care security coverage which then has the potential to lead to interest disputes. 2. result and discussion/analysis 2.1. regulation of company obligations in workers' health care security coverage after the enactment of bpjs law social security is the right of every person guaranteed by the nsss law. social security in question is a guarantee to be able to meet the basic needs of a decent life and increase its dignity towards the realization of a prosperous, just and prosperous indonesian society. this is as aspired in 7susilo andi darma, "kedudukan hubungan kerja; berdasarkan sudut pandang ilmu kaidah hukum ketenagakerjaan dan sifat hukum publik dan privat." mimbar hukumfakultas hukum universitas gadjah mada 29, no. 2 (2017): 223. 8ibid interest dispute settlement related to workers’ health care security in indonesia dewa nyoman rai asmara putra, kadek agus sudiarawan and ari mahartha 67 the formation of the nssslaw which is included in the 1st point of the considering section. social security is designed to provide significant benefit to the community as social security participants by ensuring the fulfillment of basic needs that are appropriate for the participant along with family members, which includes comprehensive health services.9 one of the strategic steps taken by the state in realizing this is through the establishment of the social security organizing agency as mandated in article 5 paragraph (1) of the national social security act which was previously implemented by the establishment of several social security organizing bodies, namely: a. pt (persero) workers' social security / jamsostek; b. pt (persero) savings fund and civil servant insurance / taspen; c. pt (persero) armed forces / asabri social insurance; and d. pt indonesian health insurance (askes). whereas then based on the enactment of the law of the republic of indonesia number 24 of 2011 concerning the social security organizing agency (hereinafter referred to as the "bpjs law"), it is deemed necessary to carry out a transformation of the four state-owned enterprises into a national social security administering board to accelerate the implementation of the system national social security for all indonesian people. 10 whereas based on these considerations, a legal entity was established to carry out a national social security program, namely the social security organizing agency (bpjs) which includes the health bpjs and the employment bpjs. the health bpjs based on article 6 paragraph (1) of the bpjs law organizes a health insurance program, while the bpjs employment based on article 6 paragraph (2) of the bpjs law organizes a work accident insurance program, old-age insurance, pension insurance, and death insurance. with the enactment of the bpjs law and the commencement of the operation of the health bpjs as the organizer of the health insurance program on january 1, 2014, there will be implications for the 2 (two) previous social security organizing bodies, including: 1. pt. jamsostek (persero) was declared dissolved without liquidation and all assets and liabilities as well as legal rights and obligations, were transferred to bpjs employment and no longer held a health care insurance program; 9 andri putra kesmawan and dyah mutiarin, "implementasi kebijakan badan penyelenggara jaminan sosial (bpjs) kesehatan di kabupaten bantul daerah istimewa yogyakarta." journal of governance and public policy 1, no. 3 (2016): 507. 10surabhi chopra, "legislating safety nets: comparing recent social protection laws in asia." indiana journal of global legal studies 22, no. 2 (2015): 583584. udayana journal of law and culture vol. 4 no. 1, january 2020 68 2. pt. askes (persero) was declared dissolved without liquidation and all assets and liabilities as well as legal rights and obligations transferred to bpjs for health. the changing form of pt askes (persero) brought changes in several fields, including the social security organizing agency which no longer took the form of a state-owned enterprise, but instead became a public legal entity that has direct accountability to the president. the implementation of the national health insurance program by the health bpjs uses the principle of social insurance which has a different character from soes pursuing profits. 11 bpjs for health has an orientation to service to the community by managing as well as possible the funds which are mandates collected from participant contributions for the welfare of all participants.12 in addition, social security coverage is compulsory and broader such as the mandatory bpjs for health for the entire population as well as the bpjs employment required for all workers. 13 the obligation to administer the national health insurance has been regulated in the bpjs law, namely, in article 4 letter g it is stated: "bpjs organizes a national social security system based on the principle of membership being mandatory". in the elucidation of article 4 letter g, it is stated that what is meant by "the principle of membership is compulsory" is the principle that requires all residents to become social security participants, which is carried out in stages. in the context of manpower, article 14 of the bpjs law stipulates that "every person, including foreigners who work for a minimum of 6 (six) months in indonesia must be a participant in the social security program", in which case, the social security program membership of workers is facilitated by registration. employer. this is regulated in article 15 paragraph (1) of the bpjs law, which states that "employers must gradually register themselves and their workers as participants to bpjs in accordance with the social security program that is followed." then those required to be registered with the bpjs program by the employer also include family members. these provisions than have an impact on the company, including: a) the company is required to register its employees with bpjs for health b) the company shall allocate additional funds to pay contributions to the bpjs for health 11 widya hartati, “kajian yuridis perubahan pt. askes (persero) menjadi badan penyelenggara jaminan sosial (bpjs) kesehatan.” jurnal ius kajian hukum dan keadilan 3, no. 3 (2015): 494. 12ibid. 13shihab, a. n. "hadirnya negara di tengah rakyatnya pasca lahirnya undangundang nomor 24 tahun 2011 tentang badan penyelenggara jaminan sosial (the presence of the state among people after the declaration of law number 24 year 2011 concerning social security administering agency)." jurnal legislasi indonesia 9, no. 2 (2018): 186. interest dispute settlement related to workers’ health care security in indonesia dewa nyoman rai asmara putra, kadek agus sudiarawan and ari mahartha 69 the requirement of an employer in registering all workers to bpjs membership is followed by the application of sanctions for the employer if they do not implement the provisions, namely administrative sanctions as regulated in article 17 paragraph (1) of the bpjs law which can be in the form of a. a written warning; b. fine; and/or c. do not get certain public services. in addition to the obligation of the employer to register his workers in bpjs membership, the employer is also given an obligation by the bpjs law in terms of collecting contributions which are borne by participants from their workers and depositing them to bpjs, as well as being obliged to pay and deposit contributions which are their responsibility to bpjs. both obligations of the employer are regulated in article 19 paragraph (1) and paragraph (2), and for violations of these provisions by the employer, the bpjs law stipulates sanctions in the form of imprisonment for a maximum of 8 (eight) years or a maximum fine of rp1,000,000,000.00 (one billion rupiahs). 2.2. legal implications arising if the collective labor agreement of the company before the enactment of bpjs law has implemented workers’ health care security coverage scheme through private medical insurance the enactment of the bpjs law which requires employers to register all workers in the national health insurance membership held by the health bpjs has practical implications in industrial relations between the employer and workers. the practical implications are then felt especially by the employer who prior to the enactment of the bpjs law has provided health insurance facilities to workers in collaboration with private insurance as the organizer. with the enactment of the bpjs law which requires the employer to register workers with jkn membership, a double coverage will occur for the health insurance of all workers. especially if the health insurance coverage that uses the facilities of the private insurance has been poured into a collective labor agreement, which has become a binding legal rule between the employer party and the worker, in this case the labor union and must continue to be carried out by the parties although with the enactment of the new national provisions concerning health insurance that is the bpjs law. this then naturally becomes a burdensome matter for the employer parties where they must cover the worker's health insurance in a double manner even though in practice the worker does not use all of these facilities but due to the national health insurance coverage system which is cross-subsidized to other participants, the employer must remain to pay national health insurance contributions in each payment period. in fact, in some cases national health insurance participants, in this case, workers prefer to use health facilities provided from participation in private health insurance because they are accustomed udayana journal of law and culture vol. 4 no. 1, january 2020 70 to and consider services provided in the national health insurance as not satisfactory enough. thabrany in kesmawan & mutiarin stated that "participants with top-level economic class are not satisfy with jkn services".14 then bpjs for health services also complained a lot and became a problem in the community where a lot of the reports that entered the ombudsman republic of indonesia (ori) which were quite high in 2015 related to the administration of bureaucracy, registration, up to the long queues and related to payments.15 another problem that occurred is the demonstrate that occurred in bandung by workers who are members of the indonesian workers union (iwu) in front of the bpjs for health office pasteur asking for a delay in participation as bpjs for health participants due to workers objecting to the coercion of them to become bpjs for health participants by employer.16 the conditions as previously stated become the implications of the enactment of the bpjs law specifically in terms of the obligation of the employer to register all of his workers in jkn membership where there is a conflict of interest between the parties in industrial relations. this is especially true for companies that have implemented health insurance coverage with private insurance before the enactment of the bpjs law. in terms of the employer, the employer is obliged to guarantee the health of his workers, which has been done previously in collaboration with private insurance as the organizer, but on the other hand, the employer is also obliged to carry out the act which requires the employer to use the national health insurance health bpjs. while from the side of workers who are accustomed to enjoying qualified health insurance facilities from private health insurance, refuse to transfer these facilities to the national health insurance from bpjs for health because it is considered that the facilities provided in health services by bpjs for health are no better than health facilities from private health insurance which has been enjoyed by workers. where the conflict of interest between the parties may then become a difference of understanding between the parties which cannot find a solution between the parties until it leads to a dispute of interest which must be settled in accordance with the stages of the industrial relations dispute settlement as regulated in the law number 2 of 2004 concerning settlement of industrial relations disputes. 14andri putra kesmawan and dyah mutiarin, op. cit., 508 15 arip suprianto and dyah mutiarin.. "evaluasi pelaksanaan jaminan kesehatan nasional." journal of governance and public policy 4, no. 1 (2017): 73 16veny afrilia, suwandi sumartias, and lukiati komala erdinaya transformasi pt askes (persero) menjadi badan penyelenggara jaminan sosial kesehatan." jurnal kajian komunikasi 5, no. 2 (2017): 182. interest dispute settlement related to workers’ health care security in indonesia dewa nyoman rai asmara putra, kadek agus sudiarawan and ari mahartha 71 2.2.1.review of workers' health care security coverage reduction through private insurance by referring to company obligations in bpjs law the shift in the implementation of the national social security system, especially in terms of health insurance with the enactment of the law on bpjs, has an impact on the health insurance of workers, which becomes an obligation for the employer to register workers in bpjs for health membership. from a workers' perspective, this is seen as a loss where the rights in the form of health facilities that have been obtained from the implementation of health insurance by private insurance which is very qualified for them are "reduced" by the mandatory membership of bpjs for health. 17 workers and employers are then confronted with situations of conflicting interests. this conflict of interest is caused by the presence of the employer party with the obligation to apply for health insurance with bpjs for health to all workers. this is an order of the law where there is a threat of sanctions imposed on the employer if they do not carry out the registration of workers to bpjs for health membership. this is in accordance with the provisions of article 5 of the government regulation of the republic of indonesia number 86 the year 2013 concerning procedures for imposing administrative sanctions to employers other than state administrators and everyone, other than employers, workers, and recipients of contribution aid in providing social security. in this provision, there are administrative sanctions for employers that can be in the form of written warnings, fines, and/or not receiving certain public services, to sanctions that lead to business-related licensing. so that if this provision is violated it will lead to greater consequences for the sustainability of the company which has the potential to be closed so that it also impacts the potential loss of work for workers. whereas if referring to the ideals to be achieved in the framework of the implementation of the national health insurance in the bpjs law it has been very ideal and should be able to accommodate the needs of the whole community in particular workers in a company. this is as stated in the considerations of the bpjs law, namely the national social security system is a program that aims to provide certainty of protection and social welfare for all people. this has also been strengthened by decision of the constitutional court number 7 / puu-xvii / 2019, dated february 11, 2019, concerning the judicial review case against article 14 of law number 17budi setiyono & ian chalmers "labour protection policy in a third world economy: the case of indonesia." development and society 47, no. 1 (2018): 142-143. udayana journal of law and culture vol. 4 no. 1, january 2020 72 24 of 2011 concerning the social security organizing body.18 in the judicial review case, the petitioner argued that article 14 of the bpjs law which states "every person including foreigners who work for a minimum of 6 (six) months in indonesia, must be a participant in the social security program" is against the constitution, which is then rejected by the constitutional court by citing legal considerations of other constitutional court cases in mk decision number 138/puu-xii/2014, dated december 7, 201519 which states as follows: "that social insurance as a social security system is in line with the values of the pancasila and the mandate of the 1945 constitution because it will create social justice by fostering an awareness of individual obligations towards the public collectively as an embodiment of cultural life that prioritizes common interests" "according to the court, the word" state "in article 34 paragraph (2) of the 1945 constitution also includes the participation of the government, regional government and private parties to participate in developing a social security system by providing health facilities for the community, especially in the corners of regions of the homeland are still not available health facilities in the area have been submitted to their respective local governments, so that in the future both the local government and private parties will build adequate facilities and bpjs will pay anyone seeking treatment at the health facility, or in the form of insurance additions that will meet health needs and services that exceed the basic needs they deserve." through this decision, the constitutional court is of the opinion that article 14 of the bpjs law which states "everyone including foreigners who work for a minimum of 6 (six) months in indonesia, must be a participant in the social security program", does not contradict the constitution with the consideration that the constitutional court emphasizes the interests of the wider community in which in this case the private sector is one of the partners included in the definition of "state" in article 34 paragraph (2) which is obliged to realize social security for all indonesian people in accordance with the spirit of the constitution. the purpose of the establishment of the bpjs law is actually very ideal in guaranteeing the protection and social welfare of all people, but this very noble goal should be accompanied by a professional organization so as not to cause negative perceptions among the public users of national health 18see constitutional court decision number 7/puu-xvii/2019, dated february 11, 2019 concerning judicial review case against article 14 of law number 24 year 2011 concerning social security organizing body. 19 see constitutional court decision number 138/puu-xii/2014, dated december 7, 2015. interest dispute settlement related to workers’ health care security in indonesia dewa nyoman rai asmara putra, kadek agus sudiarawan and ari mahartha 73 insurance services, so it is not considered a reduction benefits for workers who previously enjoyed health insurance facilities provided by private health insurance. 2.2.2.review of workers' refusal to reduction in benefits or facilities for workers' health care security which previously using private medical insurance switching to bpjs for health amendment in health insurance arrangements that are nationally employers are required to register their workers in the membership of the health bpjs implications for the engagement relationship that has occurred between the parties who before the enactment of the bpjs law had imposed a collective labor agreement (cla) as an autonomous law in industrial relations in between the employer and the workers union.20 the main issue, in this case, is whether the workers can reject the effectiveness of bpjs for health membership where cla previously stated that workers' health insurance is carried out with private health insurance. in answering this issue, it is important to remember that the position of the bpjs law is a public law that is forced (dwingendrecht) and there are sanctions if the provisions are not implemented. then the cla is made based on an agreement by the parties in accordance with article 1338 paragraph (1) of the civil code which is a supplementary law (aanvullend recht). this is as stated by subekti that the regulations contained in book iii of the civil code are generally a supplementary law (aanvullendrecht) and not compulsive (dwingendrecht).21 in terms of nature, the structure of the rule of law can be distinguished from imperative law (legal force / dwingend recht) and facultative law (governing law of complementary law / regelend recht or aanvullendrecht). the distinction of the nature of this law is emphasized on the strength of the sanctions, where the law is forced, namely in a concrete situation that cannot be ruled out by agreements made by the parties themselves, so that under any circumstances the law must be obeyed absolutely / absolutely. whereas the law regulates that in concrete circumstances can be ruled out by agreements made by the parties.22 thus the enactment of the bpjs law as a public and compulsory law can override cla's position as a compliment, but limited to the provisions governing health insurance for workers. then when referring to the provisions of article 1338 paragraph (2) of the civil code, it is expressly 20 ruben l. situmorang, "tinjauan yuridis tentang perjanjian kerja bersama ditinjau dari undang-undang nomor 13 tahun 2003 tentang ketenagakerjaan." lex privatum 1, no. 1 (2013): 118. 21 r. subekti, hukum perjanjian.cetakan ke-22." (jakarta: pt intermasa, 2008), 127. 22muhammad djumhana, hukum perbankan di indonesia. (bandung: pt citra aditya bakti, 2010), 9. udayana journal of law and culture vol. 4 no. 1, january 2020 74 stated that "the agreement cannot be withdrawn other than by agreement of both parties, or for reasons determined by law." what is meant by "reason which is determined by the law "in this case is a statutory provision that is compelling (dwingend recht), so that in this context the bpjs law can be qualified as a law which is the basis for the amendment to the provisions in the cla relating to the implementation of workers' health insurance. the collective labor agreement can be amended with the good faith of the parties.23 in accordance with the goodwill principles known in treaty law in indonesia, it is regulated in article 1338 paragraph (3) of the civil code, namely that in the formulation it is stated that "agreement must be carried out in good faith". good faith, in this case, is based on moral values and conscience. in implementing the contract, good faith is a legal institution (rechtsfiguur) derived from roman law which was then absorbed by civil law.24 good faith is divided into 2 (two) types, namely good faith relative and absolute good faith. as for what is considered in nisbi good intentions is the real attitudes and behavior of the subject of the agreement, then what is considered in the absolute good intentions is assessed on common sense and justice by making objective measures in assessing a situation according to objective norms (judgments made not taking sides,25 wirjono prodjodikoro provides a limitation of good faith using the terms "honest" or "honestly"26wirjono prodjodikoro also divides good faith into 2 (two) types, namely:27 1. good faith at the time a legal relationship is effective. in this case, good faith is usually in the form of an estimate or a person's assumption that the conditions needed for the commencement of a legal relationship have been fulfilled; and 2. good faith at the time of exercising the rights and obligations stated in the legal relationship. good faith in this sense is none other than what is stipulated in article 1338 paragraph (3) of the civil code which focuses on actions to be taken by both parties, namely the act of implementing a matter agreed upon by the parties. 23 refly umbas, "aspek hukum dalam perjanjian kerja bersama (pkb) antara karyawan dengan perusahaan." lex privatum 2, no. 3 (2014): 174-175. 24priyono, e. a. "peranan asas itikad baik dalam kontrak baku (upaya menjaga keseimbangan bagi para pihak)." diponegoro private law review 1, no. 1 (2017): 14. 25 wisudawan, i. g. a. “the good faith principle of the parties in the credit agreement as an effort to minimize the non performing loans at koperasi financial institutions”. ganeswara 7 no. 2 (2013): 58 26ibid. 27ibid. interest dispute settlement related to workers’ health care security in indonesia dewa nyoman rai asmara putra, kadek agus sudiarawan and ari mahartha 75 2.3. legal measures that can be taken in resolving disputes arising as to the coverage of workers’ health care security in the company after the enactment of bpjs law in the event that the change in the implementation of workers' health insurance which was originally at the cla has been carried out in collaboration with private insurance to be administered by using the national health insurance by the health bpjs, it will certainly bring problems and differences of understanding among the parties which lead to industrial relations disputes which in this case qualify for a dispute of interest.28 in the context of this problem, the absence of conformity of opinion between workers and employers regarding changes in health insurance workers who originally used private insurance to switch to the national health insurance bpjs for health in the cla can be qualified into a dispute of interest. conflicts of interest between the parties in industrial relations can be resolved through the mechanism contained in the procedure for settling industrial relations as regulated in chapter ii of the pphi law, including but not limited to: 1) settlement through bipartite namely the settlement by deliberation to reach consensus. if later in this stage a settlement agreement is obtained, a joint agreement is signed by the parties. this joint agreement then binds and becomes law and must be implemented by the parties. a joint agreement must be registered with the industrial relations court at the district court in the territory of the parties entering into a joint agreement.29 2) settlement through mediation that is carried out by the mediator who is in every office of the agency responsible for manpower in the district / city level which is carried out by conducting research on the case sitting and holding a mediation session.30 in the event that an industrial relations dispute resolution agreement is reached in the mediation stage, the parties make a joint. 31 in the event that no agreement is reached, the mediator shall issue a written recommendation within not later than 10 (ten) working days from the first mediation session. then to the 28charda s ujang, “model penyelesaian perselisihan hubungan industrial dalam uu ketenagakerjaan setelah undang-undang nomor 2 tahun 2004 diundangkan”.wawasan yuridika 1, no. 1 (2017):12-13. 29 omon remen, endeh suhartini & ani yumarni, penyelesaian perselisihan hubungan industrial pada pt. haengnam sejahtera indonesia di tingkat mediasi pada dinas tenaga kerja kabupaten bogor, jurnal hukum de’rechtsstaat 4, no.1 (2018).), 90. 30 jorawati simarmata "urgensi bantuan hukum relawan pendamping, pekerja sosial dan serikat buruh setelah putusan ma no 22 p/hum/2018." jurnal hukum & pembangunan 48, no. 4 (2018): 689-690. 31yetniwati, hartati, dan meriyarni, "reformasi hukum penyelesaian perselisihan hubungan industrial secara mediasi." jurnal dinamika hukum 14, no. 2 (2014): 253-254. udayana journal of law and culture vol. 4 no. 1, january 2020 76 recommendation, the parties must provide a written answer to the mediator whose contents approve or reject the recommendation within no later than 10 (ten) days after the written suggestion is received. those who do not respond to the recommendations are considered to reject written recommendations. if the written recommendation is agreed by the parties, no later than 3 (three) working days after the written suggestion is agreed the mediator must have finished assisting the parties in making a joint agreement to then be registered with the industrial relations court at the district court in the territory of the parties entering into the agreement together to obtain a proof of registration deed. 3) settlement through conciliation that is carried out by the conciliator registered at the office of the agency responsible for the regency / city manpower, which is carried out by conducting research on the seat of the case and holding a mediation session. in carrying out their duties, the conciliator may summon witnesses or expert witnesses to attend the mediation hearing to request and hear their statements.32 in the event that no agreement is reached, the conciliator shall issue a written recommendation within not later than 10 (ten) working days from the first mediation session. then to the recommendation, the parties must provide a written answer to the conciliator whose contents approve or reject the recommendation within no later than 10 (ten) days after the written recommendation is received. those who do not respond to the recommendations are considered to reject written recommendations. 4) settlement through arbitration that is done on the basis of the agreement of the parties to the dispute by the arbitrator that has been established by the minister. the agreement is stated in writing in an arbitration agreement made in 3 (three) copies and each party gets 1 (one) who has the same legal force. the parties are entitled to choose one arbitrator (the single arbitrator) or several arbitrators (assemblies) in an odd number of as many as 3 (three) people from the list of arbitrators determined by the minister. arbitrators are required to settle industrial relations disputes within no later than 30 (thirty) working days from the signing of the appointment agreement letter. arbitration decisions have the force of law that binds the parties to the dispute and is a final and permanent decision which is then registered at the industrial relations court at the district court in the area of the arbitrator to determine the decision. 32akbar pradima, "alternatif penyelesaian perselisihan hubungan industrial di luar pengadilan." dih: jurnal ilmu hukum 9, no. 17 (2013): 6-7. interest dispute settlement related to workers’ health care security in indonesia dewa nyoman rai asmara putra, kadek agus sudiarawan and ari mahartha 77 in the case of industrial relations disputes settlement through mediation or conciliation channels that do not meet with a resolution, then with the recommendation of the mediator or conciliator, the parties can file a lawsuit with the industrial relations court at the district court whose jurisdiction covers the place where the workers/laborers work. where in the context of a conflict of interest, the industrial relations court has the duty and authority to examine and decide on industrial relations disputes at the first and last level,33 so that the decision issued by the industrial relations court against a dispute of interest is a final and permanent decision. 3. conclusions based on the discussion that has been presented previously, from this legal research can be concluded: first, after the enactment of law number 24 year 2011 concerning bpjs there are fundamental amendments, especially those felt by employers. the amendment is in the case of health insurance provided to its employees, after the enactment of the bpjs law, the employer is obliged to register himself and all of his workers in the bpjs for health membership as implementing social security in the health sector as mandated by the national social security act which was previously organized by pt askes (persero). second, the mandatory membership of the bpjs for health for all employers raises legal implications which between the employer and the worker an autonomous law has been applied as an agreement on the terms of work in the form of a collective labor agreement which has stipulated the pattern of health care security coverage using private medical insurance since before the enactment of the bpjs law. in this case, the employer shall continue to implement the contents of the collective labor agreement, while on the other hand, the bpjs law instructs the implementation of health security using the bpjs for health which then impacts a double coverage of workers' health care security which impacts on additional financial burden to be borne by the employer. this double health care security coverage situation is then vulnerable to bring up a conflict of interests between the employer and the workers which can lead to the emergence of industrial relations disputes in the form of interest disputes. whereas in the context of legal agreement in relation to cla as the basis for the application of private health insurance for workers, referring to article 1338 paragraph (2) of the civil code, the agreement can be amended on the basis of good faith or for reasons determined by the law. in this case, the enactment of bpjs law requiring the employer to include its workers in the bpjs for health membership is qualified as a public law that is compelling in nature 33adriaan bedner "indonesian legal scholarship and jurisprudence as an obstacle for transplanting legal institutions." hague journal on the rule of law 5, no. 2 (2013): 264. udayana journal of law and culture vol. 4 no. 1, january 2020 78 (dwingendrecht) so that it can override the provisions in the cla on workers'health insurance, so that the bpjs law can be used as a reason for public law to be forced (dwingendrecht) so that it can override the provisions in the cla on workers' health insurance so that the bpjs law can be used as a reason to amend cla. third, disagreements between employers and workers that lead to industrial relations disputes which in this case are qualified as interest dispute that can be resolved through the mechanism determined in the industrial relations dispute settlement law. the 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"reformasi hukum penyelesaian perselisihan hubungan industrial secara mediasi." jurnal dinamika hukum 14, no. 2 (2014): 250-261. laws and regulations constitution of the republic of indonesia year 1945. law of the republic of indonesia number 13 year 2003 concerning manpower, state gazette number 39, supplementary state gazette number4279. law of the republic of indonesia number 2 year 2004 concerning industrial relations dispute settlement, state gazette number6,supplementary state gazette number 4356. law of the republic of indonesia number 40 year 2004 concerning national social security system, state gazette number150, supplementary state gazette number 4456. law of the republic of indonesia number 24 year 2011 concerningsocial security organizing body, state gazette number 116, supplementary state gazette number 5256. civil code of indonesia [kitab undang-undang hukum perdata indonesia]. government regulation of the republic of indonesia number 86 year 2013 concerning procedures for imposing administrative sanctions to employers other than state administrators and everyone, other than employers, workers, and recipients of contribution assistance in providing social security, state gazette number 238, supplementary state gazette number 5481. case law constitutional court judgment number 138/puu-xii/2014, dated 7 december 2015. constitutional court judgment number 7/puu-xvii/2019, dated 11 february 2019. https://doi.org/10.2753/jei0021-3624460214 e-issn 2549-0680 vol. 7, no. 2, july 2023, pp. 141-158 141 discourse on the civil rights of the deaf people in making a notary deed ida ayu ratna kumala1, i ketut sudantra2 1,2 faculty of law udayana university, denpasar, indonesia keywords abstract civil rights; deaf person; legal capacity; notarial deed. it is generally said that disabled persons do not have proper access to justice and are not treated equally before the law. in indonesia, the human rights approach has been incorporated into developing laws and policies for disabled persons. however, disabled people still face legal difficulties. this article aims to discuss the legal capacity of a deaf person to perform the legal action of making a deed before a notary in indonesia from the perspectives of human rights, contracts, and notary laws. it reflects legal research that uses a statutory and conceptual approach. primary legal materials are obtained from the national laws and regulations of indonesia and relevant international legal instruments, while secondary legal materials are obtained from books, journal articles, and website content. the findings reveal that indonesian national law generally recognizes the right of persons with disabilities, including deaf people, to perform civil law actions. in general, deaf people can sign a contract; however, there is no guarantee that they understand the communication process in making a deed. in this context, there are still obstacles related to the lack of sign language interpreters in indonesia, which can complicate the transferring of information when making notarial deeds between deaf clients, notaries, and witnesses. doi https://doi.org/10.24843/uj lc.2023.v07.i02.p02 author e-mail 1 correspondence: kumala.2290911012@stude nt.unud.ac.id / yugekkiran23@gmail.com 2 ketut_sudantra@unud.ac.id this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licen ses/by/4.0/) 1. introduction indonesia has evinced genuine effort to guarantee the rights of disabled people by becoming a state party to the convention on the rights of persons with disabilities (crpd) in 2011, followed by enacting law no. 8 of 2016 concerning persons with disabilities (law on persons with disabilities).1 concurrent regulatory regimes across different sectors, rather than a uniform approach, have created outcomes that are inconsistent with the 1 see dewa gede sudika mangku, ni putu rai yuliartini, and i wayan lasmawan, “legal protection for people with disabilities in indonesia in the perspective of justice theory,” unnes law journal 8, no. 2 (2022): 248, 249, 258; and vera bararah barid et al, “legal protection for disabilities persons with language limitations in law enforcement,” jurnal ham 13, no. 3 (2022): 642; and ristania intan permatasari, sapto hermawan, and abdul kadir jaelani, “disabilities concessions in indonesia: fundamental problems and solutions,” legality: jurnal ilmiah hukum 30, no. 2 (2022): 301-304. https://doi.org/10.24843/ujlc.2023.v07.i02.p02 https://doi.org/10.24843/ujlc.2023.v07.i02.p02 mailto:yugekkiran23@gmail.com mailto:yugekkiran23@gmail.com mailto:yugekkiran23@gmail.com mailto:ketut_sudantra@unud.ac.id http://creativecommons.org/licenses/by/4.0/ http://creativecommons.org/licenses/by/4.0/ discourse on the civil rights of the deaf people in making a notary deed ida ayu ratna kumala, i ketut sudantra 142 proper and dignified treatment of persons with disabilities. for example, law no. 11 of 2009 concerning social welfare tends to see disabled persons as those whose lives are not humanely worthy or feasible, face social problems or experience social dysfunction, necessitating social security.2 despite establishment of the national disability commission, the stigma of segregation as part of the old paradigm remains: considering disability issues as purely social affairs, which is antithetical to the human rights approach.3 accordingly, one of the most severe difficulties in improving the lives of disabled persons has been the transformation of disability from a social issue into a human rights issue.4 persons with disabilities in indonesia have not received proper treatment, both in the context of law and social relations. this is characterised by difficulties in accessing public services, participation in social activities, as well as access to education and employment.5 further, they are often treated differently by others.6 many persons with physical disabilities in indonesia live in markedly vulnerable circumstances characterised by underdevelopment and poverty, creating additional obstacles and difficulties as well as a practical reduction or elimination of their rights.7 disabled people often experience institutional and social discrimination, and can face accessibility issues in the physical environment. these experiences can result in their exclusion from education, employment, legal processes, and healthcare.8 these outcomes imply a treatment differential, potentially attributable to discriminatory practices, resulting in unequal access and treatment of disabled persons compared to non-disabled person. recently, there has been a transformation in sentiment whereby disabled persons, having previously been perceived as a group deserving of pity, are now perceived as a group whose fundamental rights as human beings must be guaranteed and fulfilled by the state.9 for example, indonesian law requires that every social worker must act objectively and non-discriminatively in consideration of a client’s disability.10 the topics of equality before the law and access to justice for disabled persons were then 2 see law no. 11 of 2009 concerning social welfare, art. 5 (2) (c), art. 7 (1) and its elucidation, and art. 9 (1). 3 yeni rosdianti, “quo vadis komisi nasional disabilitas?,” jurnal ham 12, no. 2 (2021): 224. 4 ibid. 5 mangku, yuliartini, and lasmawan, op.cit., 250. 6 iman pasu purba et al, “the fulfillment of human rights of disabled person in surabaya city bt,” proceedings of the international joint conference on arts and humanities (2022): 124. 7 sarifah arafah nasir and ahkam jayadi, “penerapan hak aksesibilitas bagi penyandang disabilitas perspektif hukum positif dan hukum islam di kota makassar,” jurnal shautana 2, no. 1 (2021): 190. 8 adrianna bella and teguh dartancto, “persons with disabilities (pwd) and poverty in indonesia,” malaysian journal of economic studies 55, no. 2 (2018): 167. 9 frichy ndaumanu, “hak penyandang disabilitas: antara tanggung jawab dan pelaksanaan oleh pemerintah daerah,” jurnal ham 11, no. 1 (2020): 133. 10 law no. 14 of 2019 concerning social workers, art. 42 (g). udayana journal of law and culture vol. 7 no. 2, july 2023 143 widely discussed in various forums.11 embracing diversity is a crucial aspect of social justice regarding the rights of people with disabilities. ethics that underpin social justice imply valuing all people equally in terms of their rights to wellbeing and their ability to contribute to decision-making.12 generally, disabilities can be distinguished between physical disabilities and mental disabilities.13 physical disabilities are commonly characterised by disturbances in bodily functions, for example, being blind, deaf or mute. such disabilities can exist concurrently, such as persons who are both deaf and blind.14 mental disabilities are generally understood to be behavioural disorders that are caused by either congenital defect or as a result of illness.15 over the decades, 'special needs' has been popularized to substitute the term 'disability' euphemistically.16 one of the technical-juridical problems faced by disabled people in indonesia is when they want to enter into contractual relations. due to a prerequisite of contract validity being the requirement of good mental health, mentally disabled persons cannot enter into a contract. however, some types of physically disabled persons also face difficulties in entering a contract, for example, those who do not have hands and fingers and cannot sign a contract,17 blind persons in circumstances where the contract is not translated into braille, and deaf persons. however, in practice, there are still various ways to overcome these impediments. the scope of this paper is limited to the situation faced by deaf people. this is important because there are an increasing number of deaf people globally. the 2021 report on hearing released by the world health organization provides that more than 1.5 billion people (20% of the world's population) experience some level of hearing loss. the report also predicted a 11 brent c elder and michael a schwartz, "effective deaf access to justice," the journal of deaf studies and deaf education 23, no. 4 (2018): 332-333. 12 siri h eriksen, robyn grøndahl, and ann-marit sæbønes, “on crdps and crpd: why the rights of people with disabilities are crucial for understanding climate-resilient development pathways,” the lancet planetary health 5, no. 12 (2021): 930. 13 dian fitriyani and irma cahyaningtyas, "rekonstruksi penegakan hukum bagi penyandang disabilitas dan keberlakuan keterangan psikiater sebagai keterangan ahli," jurnal magister hukum udayana 11, no. 2 (2022): 414-416. 14 ibid. see also vuokko einarsson et al. psychological assessment of individuals with deafblindness (stockholm: nordic welfare centre, 2020), 18-19. 15 some terms are generically used to refer to the uncommon mental situation of a person, such as 'intellectual disability,' mental illness, and mental disorder. a person with an intellectual disability may also have a mental illness or mental disorder. generally, persons with mental illness and mental disorders are poorly recognized and treated as people with intellectual disability. see intellectual disability rights service, “intellectual disability and mental illness,” http://www.idrs.org.au/s32/_guide/p040_4_2_idandmi.php 16 morton ann gernsbacher et al, “special needs” is an ineffective euphemism,” cognitive research 1 (2016): 2. 17 ramadhanty and budianto examined the validity of deeds made by persons with disabilities without fingerprints who cannot put their signature and fingerprint stamp on the deed and discuss the responsibilities of a notary for deeds made in this way. see savira ramadhanty and agus budianto, “pemberian persetujuan yang sah terhadap akta notaris yang dibuat oleh difabel tanpa sidik jari,” notary journal 3, no. 1 (2023): 74. http://www.idrs.org.au/s32/_guide/p040_4_2_idandmi.php discourse on the civil rights of the deaf people in making a notary deed ida ayu ratna kumala, i ketut sudantra 144 significant increase to 2.5 billion people by 2050.18 in most developing countries, inflammation of the middle ear cavity is considered a generic source of childhood hearing loss.19 in the indonesian context, it is estimated that nearly 2.1 million deaf people in indonesia use indonesian sign language to communicate.20 a disability study by the ministry of national planning in 2021 shows that the percentage of deaf persons has reached 29% of the total number of people with disabilities in indonesia, placing it at number four after vision, mobility, and cognitive impairments.21 in everyday life, a deaf person tends to have difficulty communicating as they need a sign language interpreter who can provide a translation from and into sign language codes.22 conversely, there is a shortage of such interpreters in indonesia. based on data from the sign language interpreter service center, the total number of sign language interpreters in the 2018-2022 period was 125, consisting of 94 hearing interpreters and 31 deaf interpreters.23 historically, a person who was born deaf and mute was presumed to lack capacity to enter into contracts. courts, equating the physical inability to hear with a mental disability, voided contracts entered into by deaf persons. this created circumstances where deaf people were prohibited by judicial disposition to become parties to a contract.24 the generic term ‘deaf’ refers to physical limitations experienced by a person on their ability to hear. other terms used to describe this phenomenon include hearing impairment,25 hard of hearing (hoh),26 and hearing loss (hl).27 deafness is currently considered a public health problem as it interferes permanently with a person’s development. the causes of deafness may be genetic, environmental, or a combination of 18 charmaine kai ling tan et al, “an improved hearing aid fitting journey; the role of 3d scanning, additive manufacturing, and sustainable practices,” materials today: proceedings 70 (2022): 504. 19 ratna anggraeni et al, “otitis media related hearing loss in indonesian school children,” international journal of pediatric otorhinolaryngology 125 (2019): 44. 20 joshua project, “deaf in indonesia,” https://joshuaproject.net/people_groups/19007/id 21 assistant minister for social and poverty alleviation of the ministry of national development planning, “kajian disabilitas: tinjauan peningkatan akses dan taraf hidup penyandang disabilitas indonesia: aspek sosioekonomi dan yuridis,” jakarta, 2021, 23. 22 ida ayu pradnyadewi and i gusti agung jayantiari, "pengaturan juru bahasa isyarat dalam pembuatan akta otentik oleh notaris bagi penghadap tunarungu," jurnal ilmiah kebijakan hukum 17, no. 1 (2023): 88. 23 siti fauziyah and lina miftahul jannah, “access to disclosure of disasters information for deaf people through sign language interpreter,” indonesian journal of disability studies 9, no. 1 (2022): 138. 24 sean m. scott, “contractual incapacity and the americans with disabilities act,” dickinson law review 124 (2020): 275. 25 reenad husain bedaiwi, marzouqi abdulaziz salamah, and roa talal halawani, "parents’ awareness of ear health in madinah region, saudi arabia," egyptian journal of otolaryngology 38 (2022): 1. 26 eva gutierrez-sigut et al, "how do face masks impact communication amongst deaf/hoh people?," cognitive research 7, 81 (2022): 2. 27 mohamed a. el-begermy et al, “save the hearing, an ear surgery training project program to combat deafness in developing countries,” egyptian journal of otolaryngology, 32 (2020): 1. https://joshuaproject.net/people_groups/19007/id udayana journal of law and culture vol. 7 no. 2, july 2023 145 both.28 while deafness is generally regarded as a medical matter, some concepts are developed to expand its scope and perspective. for example, a ‘culturally deaf people’ was conceived as hearing-impaired people who can use sign language, attended residential schools for deaf children, and identify with and are accepted by the deaf community.29 the laws and regulations of indonesia provide classifications and definitions of deaf people. law on persons with disabilities classifies deaf persons as persons with sensory disabilities.30 in addition, a minister of manpower decree defines deaf people as those who have partial or complete loss of hearing and use sign language to communicate.31 several studies have addressed this issue. pradnyadewi and jayantiari (2023) identified legal issues in circumstances where the notary law does not explicitly regulate how notaries provide services to deaf people when drafting up deeds and the notary does not have any particular expertise in sign language.32 research by kumala, mahendrawati, and puspadma (2021) identified the procedure for ratifying a notary deed involving hearingimpaired persons and the legal strength of a notary deed involving disabled persons.33 rosdianti (2021) describes a new dimension to strengthen human rights perspectives by reforming the scope and mandate of the national commission on disabilities to include in its ambit matters such as participation of persons with disabilities in broader society.34 this article aims to discuss the legal capacity of a deaf person to perform the legal action of making a deed before a notary in indonesia from the perspectives of human rights, contracts, and notary laws. to address the issue, this paper firstly discusses indonesia’s framework on the rights of deaf persons. second, it explores the civil rights of the deaf persons to enter into a contractual relationship. next, it discusses the capacity of deaf persons in making private contracts and notarial deeds. lastly, it identifies the potential challenge of deaf foreigners in indonesia. this article reflects normative research. this article reflects legal research that applies a statutory approach that scrutinizes primary legal sources in the form of national laws and regulations of indonesia and other countries and relevant international legal instruments. secondary materials from books, journal articles, and website content complement those primary legal sources. in 28 maria francisca rego, ivone duarte, and rui nunes hearing, “impairment and nightmares: a theoretical insight,” springerplus 4 (2015): 3. 29 neil glickman, “cultural identity, deafness, and mental health,” jadara 20, no. 2 (1986): 1. 30 law no. 8 of 2016 concerning persons with disabilities, elucidation of art. 4 (1) (d). 31 decree of the minister of manpower of the republic of indonesia no. 207 of 2021 concerning determination of indonesia's national work competency standards for the category of professional, scientific, and technical activities and staple group of professional, scientific and other technical activities in the occupation of deaf sign language, annex chapter i, section b. 32 pradnyadewi and jayantiari, op.cit., 83. 33 ida ayu ratna kumala, ni luh made mahendrawati, and i nyoman alit puspadma, “notary legality as an authentic diction in terms of physically disabled based on law of position notary,” jurnal notariil 6, no. 1 (2021): 55. 34 rosdianti, op.cit., 212. discourse on the civil rights of the deaf people in making a notary deed ida ayu ratna kumala, i ketut sudantra 146 addition to the statutory approach, it applies a conceptual approach in exploring concepts related to the civil rights of persons with disabilities. the first is the human rights concept of equality before the law, while the second is the concept of legal capacity in a contract's validity in the context of private law and contract law. these concepts are the theoretical basis for analyzing the legal problem raised in these issues. 2. result and analysis 2.1. indonesia’s framework on the rights of deaf persons as previously mention in section 1, indonesia has been a state party to the crpd since 2011. after the ratification of that convention, indonesia established law on persons with disabilities in 2016, replacing law no. 4 of 1997. previously, provisions regarding disabilities were also partially regulated in law no. 39 of 1999 concerning human rights, law no. 28 of 2002 concerning building construction, and law no. 25 of 2009 concerning public services.35 the ongoing national human rights action plan year 2021-2025 identifies disabled persons as one of the most vulnerable population groups.36 the action plan describes particular challenges at the intersection between disabled people and the law, for example, the protection of rights and provision of legal assistance for persons with disabilities involved in legal disputes is sub-optimal. the broad strategic goals enacted by the action plan to address these challenges are to include the provision of effective legal, health, and psychosocial assistance services.37 in early 2022, the ministry of social affairs launched the indonesia hear program which aims to provide access to information and communication services for persons with disabilities and implement therapy programs for persons with disabilities to maximize their bodily functions.38 the law on persons with disabilities mandates the establishment of the disability national commission that, among other functions, will advocate for disabled people and monitor and evaluate progress on the respect, protection and fulfilment of the rights of people with disabilities.39 regarding deafness, the national committee for the management of hearing loss and 35 okki chandra ambarwati, amalina niara putri, and riant nugroho, “descriptive study of policy research on disabled rights in indonesia,” matra pembaruan: jurnal inovasi kebijakan 6, no. 1 (2022): 30. 36 majda el muhtaj, “a critical analysis of the indonesian human rights action plan 1998-2020,” jurnal ham 13, no. 3 (2022): 528. 37 presidential regulation no. 53 of 2021 concerning the national human rights action plan for 2021-2025, annex i. 38 indonesian ministry of social affairs, “luncurkan indonesia mendengar, kemensos buka akses luas untuk penyandang disabilitas,” https://kemensos.go.id/luncurkan-indonesia-mendengar-kemensos-buka-akses-luasuntuk-penyandangdisabilitas#:~:text=program%20indonesia%20mendengar%20merupakan%20wujud,fungsi %2dfungsi%20tubuh%20yang%20dimilikinya 39 galuh wahyu kumalasari, "the indonesian disability national commission as a strategic policy in fulfilling the rights of people with disability," diponegoro law review 2, no. 2 (2017): 306. https://kemensos.go.id/luncurkan-indonesia-mendengar-kemensos-buka-akses-luas-untuk-penyandang-disabilitas#:~:text=program%20indonesia%20mendengar%20merupakan%20wujud,fungsi%2dfungsi%20tubuh%20yang%20dimilikinya https://kemensos.go.id/luncurkan-indonesia-mendengar-kemensos-buka-akses-luas-untuk-penyandang-disabilitas#:~:text=program%20indonesia%20mendengar%20merupakan%20wujud,fungsi%2dfungsi%20tubuh%20yang%20dimilikinya https://kemensos.go.id/luncurkan-indonesia-mendengar-kemensos-buka-akses-luas-untuk-penyandang-disabilitas#:~:text=program%20indonesia%20mendengar%20merupakan%20wujud,fungsi%2dfungsi%20tubuh%20yang%20dimilikinya https://kemensos.go.id/luncurkan-indonesia-mendengar-kemensos-buka-akses-luas-untuk-penyandang-disabilitas#:~:text=program%20indonesia%20mendengar%20merupakan%20wujud,fungsi%2dfungsi%20tubuh%20yang%20dimilikinya udayana journal of law and culture vol. 7 no. 2, july 2023 147 deafness (komnas pgpkt) was established by decree of the minister of health no.768/menkes/sk/vii/2007.40 besides the government, civil society also plays a vital role in enhancing outcomes for deaf persons. for example, the indonesian association for the welfare of the deaf (iawd/gerkatin) is a national association and has been a member of the world federation of the deaf (wfd) for three decades.41 further, disability-care virtual communities for deaf persons in indonesia are driven by a variety actors including disability communities that establish associations for people with disabilities without formal organizational structure (e.g. komunitas tuna rungu kreatif) and volunteers with disabilities under informal organization structures established by the general public (e.g. deaf volunteering).42 2.2. civil rights of deaf persons to enter into a contractual relationship many national, regional, and international instruments recognize, protect, and safeguard the civil rights of the disabled on an equal basis with others.43 essentially, each person has equal opportunity to access the same services and facilities, but practically, some people need more support and assistance to achieve this and be provided more protection when they are unable to do so.44 after crpd entered into force in may 2008, it encouraged a universal deliberation regarding its long-term impacts on the lives of disabled people.45 the human rights concept behind the crpd was constructed by perceiving persons with disabilities as active agents rather than medical objects or objects of pity.46 looking back at history, civil rights were developed in the 18th century,47 however, the focus on the civil rights of disabled persons took place a few decades ago in various countries.48 persons with disabilities, both in developed and developing countries, tend not to have savings and 40 densy tette, “laporan kegiatan pgpkt bersih-bersih telinga,” jurnal medical profession 4, no. 1 (2022): 18. 41 indonesian association for the welfare of the deaf (gerkatin), “sejarah gerkatin,” https://gerkatin.org/tentang-kami 42 nurul hasfi and turnomo rahardjo, “the disabled people virtual communities in social media from the perspective of public sphere theory,” jurnal komunikasi ikatan sarjana komunikasi indonesia 4, no. 2 (2019): 70-71. 43 j. adams adoga-ikong and adaeze favour ibekwe, “right to freedom from discrimination: the case of the disabled in the context of international human rights and the practice in nigeria,” pinisi discretion review 3, no. 2 (2020): 340-341. 44 raymond lang et al, “implementing the united nations convention on the rights of persons with disabilities: principles, implications, practice and limitations,” alter: european journal of disability research 5, no. 3 (2011): 209. 45 ibid., 207. 46 kjersti skarstad, "human rights through the lens of disability," netherlands quarterly of human rights 36, no. 1 (2018): 25. 47 marie sépulchre, “ensuring equal citizenship for disabled people: a matter of rights or a matter of costs?,” alter: european journal of disability research 14, no. 2 (2020): 117. 48 see rafael lindqvist and kamal lamichhane, “disability policies in japan and sweden: a comparative perspective,” alter: european journal of disability research 13, no. 1 (2019): 7. https://gerkatin.org/tentang-kami discourse on the civil rights of the deaf people in making a notary deed ida ayu ratna kumala, i ketut sudantra 148 other assets.49 crpd implies a right to self-determination that expects the respect of every human being's inherent dignity and individual autonomy. however, practices indicate that person with disabilities –in particular, those who are dependent on other persons– tends not to obtain such respect.50 article 12 of the crpd reflects the idea of terminating the substituted decision making in most guardianship laws.51 it determines the equal recognition before the law that covers both legal personhood (passive capacity) and legal capacity (capacity to act).52 article 12 of the crpd, therefore, calls for an end to substituted decision making regimes that are included in most guardianship laws today. the committee on the rights of persons with disabilities emphasizes that the support in exercising legal capacity must respect the rights, intentions, and preferences of disabled persons and should not substitute decision-making.53 countries in the world indicate a willingness to recognize the legal capacity of a disabled person in their national leglislation. as an example, the government of peru enacted a decree which recognized the equality of legal capacity between persons with disabilities with others and further instituted a framework for appointing supported decision-makers before a notary or judge.54 the right to be regarded as a person before the law and the right to enter a valid contract are types of civil rights.55 the special rapporteur on the rights of persons with disabilities, catalina devandas aguilar reveals that the guardianship system loses the legal capacity of a person with disabilities to exercise all or almost all of their rights and make them not have control over decisions related to their lives, from entering into contracts.56 she also proposes that states conduct comprehensive law reviews to fully implement the right to the legal capacity of persons with disabilities that, among others, covers the issue of contractual law.57 further, aguilar pays a concern to the vital role of notaries, the profession related to the conclusion and formalizing legal transactions (contracts, wills, and powers of attorney), in addressing 49 alexandra gartrell et al, “social determinants of disability-based disadvantage in solomon islands,” health promotion international 33, no. 2 (2018): 251. 50 synne nese skarsaune, “self-determination of people with profound intellectual and multiple disabilities,” developmental medicine and child neurology 65, no. 1 (2023): 1623. 51 jillian craigie et al, "legal capacity, mental capacity and supported decisionmaking: report from a panel event," international journal of law and psychiatry 62 (2019): 160-168. 52 renato antonio constantino caycho, “the flag of imagination: peru’s new reform on legal capacity for persons with intellectual and psychosocial disabilities and the need for new understandings in private law,” the age of human rights journal 14 (2020): 157. 53 the united nations committee on the rights of persons with disabilities, general comment no. 1 (2014), article 12, equal recognition before the law. 54 samantha backman, “the right to legal capacity for canadians with disabilities: a quest for dignity, equality, and autonomy,” international human rights internship program working paper series 8, no. 1 (2020): 34. 55 sépulchre, loc.cit. see also theresia degener, "disability in a human rights context," laws 5, no. 3 (2016): 5. 56 the united nations human rights council. report of the special rapporteur on the rights of persons with disabilities” a/hrc/37/56, para 16. 57 ibid., para 65. udayana journal of law and culture vol. 7 no. 2, july 2023 149 structural factors that can hinder or violate the exercise of the legal capacity of persons with disabilities.58 it, therefore, requires the capacity building for notaries through training to make them understand the recognition of universal legal capacity when assessing the capacity of individuals entering into legal relationships.59 2.3. capacity of deaf persons in making private contracts and notarial deeds article 16 (1) of the law no. 30 of 2004 concerning notary60 (notary law) obliges a notary to act in a trustful, impartial manner and protect the interests of parties involved in legal actions as well as provide services in accordance with the provisions of this law unless there is reason to refuse. in addition, the indonesian notary association’s code of ethics of notary (code of ethics of notary) sets obligations for notaries, among others, to treat every client well regardless of their economic and social status.61 therefore, it is reasonable to interpret that a notary must treat a deaf client equally without discrimination. article 1320 of the civil code outlines four conditions of a valid agreement: (1) consent between the parties; (2) capacity to conclude an agreement; (3) specific subject (certain content); and (4) admissible cause.62 the first, third, and fourth conditions in this context do not raise an issue. however, the second condition, being the legal capacity of a deaf person to conduct legal actions, in particular during the process of executing a deed, potentially raises problems. the concept of legal capacity underlines that parties involved in contractual relations must be regarded as a subject of law.63 article 39 (1) of the notary law provides that a client must meet the minimum requirements of being 18 (eighteen) years old or married and capable of performing legal actions. therefore, a deaf person who has fulfilled those requirements must be considered legally capable. persons with disabilities basically have the right to become legal subjects in making a deed before a notary as long as they meet the requirements specified in article 39 of the notary law and are not classified as an incompetent individual to conclude agreements as stipulated in article 1330 of the civil code, i.e., minors, individuals under guardianship, and married women, in 58 ibid., paras 60 and 77. 59 ibid., para 77. 60 the law was lastly amended by law no. 2 of 2014. 61 i gusti agung ika laksmi mahadewi, ni komang tari padmawati, and i gusti agung mas rwa jayantiari, "notary in indonesia: how are state fundamental values reflected in law and professional ethics?," udayana journal of law and culture 6, no. 2 (2022): 209-210. 62 see dhaniswara k harjono, “standard agreements in the concept of freedom of contract,” russian law journal 11, no. 3 (2023): 653; indonesian civil code. english translation available at: https://www.refworld.org/pdfid/3ffbd0804.pdf 63 atharyanshah puneri, "comparison of the law of contract between islamic law and indonesian law," journal of law and legal reform 2, no. 1 (2021): 76. https://www.refworld.org/pdfid/3ffbd0804.pdf discourse on the civil rights of the deaf people in making a notary deed ida ayu ratna kumala, i ketut sudantra 150 the events stipulated by law, and in general, individuals who are prohibited by law from concluding specific agreements.64 the further issue is whether the deaf person understands the content of the deed. in practice, deaf persons are able to sign a deed in their name before a notary because a deaf person is generally still in good health and can use their common sense to take legal action.65 if the client is a deaf person, a notary, who generally does not have sign language skills, needs a sign language interpreter who can convey messages through sign language. articles 43 and 44 of the notary law regulates the role of an official interpreter in case a deed is translated into a foreign language, but does not determine the need to use sign language interpreters for a deaf client, which may have implications for future problems and affect the authenticity of the deeds.66 wardani argues that article 43 (2) of the notary law is the provision regulating the situation when a deaf person becomes the client before a notary.67 this provision holds that if the client does not understand the language used in the deed, the notary has an obligation to translate or explain the contents of the deed in a language understood by the client. further, article 43 (5) of the same law provides that if the notary cannot translate or explain the deed, it is translated or explained by an official interpreter. differences in interpretation between the contents of the deed and the conveyed sign language can have implications in terms of material and immaterial loss for the notary and the deaf client. therefore, while executing the deed, notaries need to apply the prudence principle to prevent legal problems from occurring in the future, for example, questions over the authenticity of the deed.68 the principle of prudence, as reflected in article 16 (1) of the notary law, requires thoroughness and scrupulousness. in practice, this principle can be implemented by certainty over the identity of the parties, carefully verifying the data of the subject and object, acting carefully and thoroughly in the process of preparing the deed, and fulfilling all the technical requirements for preparing a notarial deed.69 the authority of a notary to make an authentic deed is stipulated in article 15 (1) of the notary law. to be recognized as an authentic document, a notarial deed must meet the requirements specified in article 1868 of the civil code. this provision requires that an authentic deed must be made in 64 see melya kusuma wardani, "perlindungan hukum bagi penyandang disabilitas dalam pembuatan akta di hadapan notaris" (master’s thesis, notary master program, indonesia islamic university, 2021), 66; and indonesian civil code. 65 garin dinda azzalea and shafiyah nur azizah, “kesulitan penyandang tunarungu dalam melakukan pembuatan akta tanah ditinjau dalam perspektif hukum,” jurnal hukum dan ham wara sains 1, no. 2 (2022): 81. 66 pradnyadewi and jayantiari, op.cit., 94. 67 wardani, op.cit., 65-66. 68 ibid., 93. 69 ida bagus paramaningrat manuaba, i wayan parsa, and i gusti ketut aryawan, “prinsip kehati-hatian notaris dalam membuat akta autentik,” acta comitas 3, no. 1 (2018): 66, 68, 69. udayana journal of law and culture vol. 7 no. 2, july 2023 151 a certain form that has been prescribed by law and is made before a public official that has the authority to make deeds.70 the notarial deed has the presumption of validity unless it can be proven that the deed was falsified. therefore, a judge must accept the notarial deed as valid and authentic if used in court. this also applies to a notarial deed made by a person with disabilities, as it ensures legal certainty and protection. an authentic deed has three evidentiary powers. first, outward evidentiary powers that prove the authenticity of a deed are seen from its physical appearance or the outside. second, formal evidentiary power proves that the parties have explained what is written in the deed. third, material evidentiary power proves that legal events stated in the deed happened.71 in general, the authenticity of a deed made by a notary can be challenged before the court. in some cases, notaries were sued under civil, criminal, or administrative liabilities for executing deeds in an unlawful way. in this regard, the deed can be cancelled or nullified by law, depending on whether or not the legal conditions of the agreement are fulfilled.72 the next question is whether or not a deaf can be a witness before the court. in a normative sense, not all types of disability may be regarded as ‘disabled' in all court sessions. the judge(s) will consider whether someone can follow the sessions of a court (to be asked and to answer the questions, to understand the law process) or not.73 2.4. potential challenges of deaf foreigners in indonesia it is generally understood that most private contracts in indonesia are held between indonesian nationals. however, in many provinces where foreigners live, especially those with residence permits, there is a high potential for civil contracts between indonesians and foreigners. for example, bali is a province occupied by many foreigners from various countries who carry out individual business transactions, including the execution of notarial deeds. even though little has been disclosed by the media at this time, it is possible that among these foreigners are people with disabilities, including people who are deaf or hard of hearing, who draw up notarial deeds. as a reflection of ideological contests about languages, bisindo (indonesian sign language) is used in education for deaf people in 70 see ikhsan lubis et al, “cyber notary as a mean of indonesian economic law development,” sriwijaya law review 7, no. 1 (2023): 62, 70. see also agus toni purnayasa, “akibat hukum terdegradasinya akta notaris yang tidak memenuhi syarat pembuatan akta autentik,” acta comitas 3, no. 3 (2018): 398. 71 christin sasauw, “tinjauan yuridis tentang kekuatan mengikat suatu akta notaris,” lex privatum 3, no. 1 (2015): 98. 72 santa indah theresia pardosi, “the limitations of notary legal liability in indonesia towards disputed authentic deeds,” jurnal nurani hukum: jurnal ilmu hukum 5, no. 2 (2022): 179. 73 siska naomi panggabean, “access of people with disabilities to justice in indonesia general court system,” indonesian journal of disability studies 6, no. 1 (2019): 98. discourse on the civil rights of the deaf people in making a notary deed ida ayu ratna kumala, i ketut sudantra 152 indonesia, including in bali.74 at the same time, tourism practices in bali tend to use various styles, including international sign language, american sign language, british sign language, and australian sign language, to accommodate tourists of various origins.75 therefore, in the future, this will be a challenge for translators who mediate between foreign deaf clients and notaries. thus, the problem is not only the difference in the legal system and the language difference between the deaf client and the notary but also the difference in the language style used between the deaf client and the interpreter. suppose a scenario where the notary is disinclined to burden the deaf client with an interpreter fee as they deem it inappropriate, they may instead use the sign language recognition application system.76 in this context, technological advances can assist in overcoming constraints and limitations in legal practice. 3. conclusion indonesian national law, in general, has recognized the rights of persons with disabilities, including deaf people, to perform civil law actions. from a human rights perspective, the state has respected the civil rights of the deaf, equal to the rights of other people, to draw up notarial deeds. notary law and the code of ethics of notary set an obligation to notaries to treat deaf clients equally without discrimination. notary law, in particular, does not prohibit a notary from processing the making of a deed submitted by a deaf person. this situation reflects that the human rights concept of equality before the law of disabled persons has been appropriately transformed into the law and regulations in indonesia. apart from this progressive development, the problem lies in the technical mechanism for doing a deed in the case of a deaf client. in terms of contract law, a person's legal capacity to enter a contract determines the validity of a contract. in general, deaf persons can sign a contract; however, there is no guarantee that they understand the communication process when executing a deed. in this context, a sign language interpreter is needed to transfer information when making notarial deeds between deaf clients, notaries, and witnesses. however, indonesia's lack of sign language interpreters complicates this matter. the increasing number of deaf persons in indonesia and the presence of deaf foreigners is undeniable. there is, therefore, a necessity for various legal breakthroughs, which are not only limited to recognizing the equality and legal capacity of the deaf person but also guaranteeing access, facilities, and simplicity for the deaf persons to enter into contractual relations with others, including in applying a notarial deed. 74 erin moriarty, “sign to me, not the children”: ideologies of language contamination at a deaf tourist site in bali,” language & communication 74 (2020): 198. 75 ibid., 195. 76 see suharjito, suharjito et al, “sign language recognition application systems for deaf-mute people: a review based on input-process-output,” procedia computer science 116 (2017): 442. udayana journal of law and culture vol. 7 no. 2, july 2023 153 bibliography book einarsson, vuokko et al. psychological assessment of individuals with deafblindness. stockholm: nordic welfare centre, 2020. journal article adoga-ikong, j. adams and adaeze favour ibekwe. “right to freedom from 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https://kemensos.go.id/luncurkan-indonesia-mendengar-kemensos-buka-akses-luas-untuk-penyandang-disabilitas#:~:text=program%20indonesia%20mendengar%20merupakan%20wujud,fungsi%2dfungsi%20tubuh%20yang%20dimilikinya https://kemensos.go.id/luncurkan-indonesia-mendengar-kemensos-buka-akses-luas-untuk-penyandang-disabilitas#:~:text=program%20indonesia%20mendengar%20merupakan%20wujud,fungsi%2dfungsi%20tubuh%20yang%20dimilikinya https://kemensos.go.id/luncurkan-indonesia-mendengar-kemensos-buka-akses-luas-untuk-penyandang-disabilitas#:~:text=program%20indonesia%20mendengar%20merupakan%20wujud,fungsi%2dfungsi%20tubuh%20yang%20dimilikinya https://kemensos.go.id/luncurkan-indonesia-mendengar-kemensos-buka-akses-luas-untuk-penyandang-disabilitas#:~:text=program%20indonesia%20mendengar%20merupakan%20wujud,fungsi%2dfungsi%20tubuh%20yang%20dimilikinya discourse on the civil rights of the deaf people in making a notary deed ida ayu ratna kumala, i ketut sudantra 158 intellectual disability rights service. “intellectual disability and mental illness.” http://www.idrs.org.au/s32/_guide/p040_4_2_idandmi.php joshua project. “deaf in indonesia.” https://joshuaproject.net/people_groups/19007/id http://www.idrs.org.au/s32/_guide/p040_4_2_idandmi.php https://joshuaproject.net/people_groups/19007/id vol. 4, no. 1, january 2020, pp. 21-38 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3398 e-issn 2549-0680 21 reparating women’s rights violation within aceh truth and reconciliation commission (trc) m. ya’kub aiyub kadir* faculty of law, syiah kuala university, aceh, indonesia firmanila** faculty of law, syiah kuala university, aceh, indonesia article received: 29th october 2019; accepted: 22nd january 2020; published: 31st january 2020 abstract the establishment of aceh trc is based on the 2005 peace agreement between the indonesian government and the free aceh movement (gam), which then regulated under act no. 11 year 2006 on governing of aceh, and was manifested through the aceh qanun no. 17 year 2013 on aceh trc. three years later, the commissioner of aceh trc was chosen and inaugurated by aceh house of representatives in july 2016. this paper investigates aceh trc and its progress in fulfilling the rights of women as the victim of aceh’s conflict, challenges and some recommendations for better implementation of trc. using normative and empirical research, this paper found that aceh trc is an institution to uncover the truth of the past human rights violations, to achieve reconciliation and to recommend a comprehensive reparation. currently (may 2019), aceh trc is collecting data to achieve the first goal that is uncovering the truth, while the rights of women as victims in aceh’s conflict is remain alienated. it is recommended that aceh trc should implement the urgent reparations as soon as possible considering the condition of the women’s victim and their rights, and also for the central and provincial government to be supportive in terms of financial and moral support. keywords: armed conflict; peace agreement; aceh truth and reconciliation commission; women’s rights; victim. how to cite: aiyub kadir, m. ya’kub, and firmanila firmanila. “reparating women’s rights violation within aceh truth and reconciliation commission (trc) .” udayana journal of law and culture 4, no. 1 (2020): 21–38. https://doi.org/https://doi.org/10.24843/ujlc.2020.v04.i01.p02. doi: https://doi.org/10.24843/ujlc.2020.v04.i01.p02 *email corresponding author: m.yakub.akadir@unsyiah.ac.id ** email : firmaniladaly@gmail.com https://ojs.unud.ac.id/index.php/ujlc/issue/view/3398 https://doi.org/10.24843/ujlc.2020.v04.i01.p02 mailto:m.yakub.akadir@unsyiah.ac.id mailto:firmaniladaly@gmail.com reparating women’s rights violation within aceh truth and reconciliation commission (trc) m. ya’kub aiyub kadir and firmanila 22 1. introduction 1.1. background humans as zoon politicon have different views or opinions in daily life, 1 which commonly contribute to a dispute or even more become a conflict. when such a conflict occurred, generally, there are two ways to resolve, through litigation or non-litigation process. litigation process is the effort to solve the law dispute through the court, meanwhile non-litigation process is being implemented outside the court by doing negotiation, mediation, conciliation, arbitration. 2 however, in some conditions, some conflicts cannot be solved through those ways, particularly concerning the historical injustice of a people in a state, and commonly known an armed conflict. armed conflict is not only disturbing the national security but also the impact is very detrimental. although armed conflict occurs between combatants, the impact of an armed conflict was not only felt by combatants but also by non-combatants. based on article 4 paragraph 1 of geneva convention 1949, noncombatants defines as people who are not or no longer taking part in hostilities, including armed forces members who have laid down their arms, and those placed hors de combat by sickness, detention, wounded, shall in all circumstances be protected and treated under the humanity, without any adverse distinction on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.3 in international law, there is a principle known as distinction principle that applies on armed conflict. this principle regulates that the parties of the conflict must at all times distinguish between civilian objects and military objectives. 4 therefore, any military attacks must not be directed against civilians. the implementation of this principle can be seen in article 48 of the second additional protocol (1977) which states: in order to ensure respect for and protection of the civilian population and civilian objects, the parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives5 those regulations aim to guarantee the protection of civilians. but in fact, there are still violations towards this principle. the grave violation of 1 herbert gintis, carel van schaik, christopher boehm, "zoon politikon: the evolutionary origins of human political systems," current anthropology 56, no. 3 (2015): 340-341 2 tania sourdin. alternative dispute resolution, 4th ed (pyrmont: thomson reuters, 2012) 3 read article 4 paragraph 1 of convention (iv) relative to the protection of civilian persons in time of war. geneva, 12 august 1949 (geneva convention 1949 on protection to civilians) 4 ihl database of icrc about customary ihl rule 7, https://ihldatabases.icrc.org>ihl 5 read article 48 of protocol additional to the geneva conventions of 12 august 1949, and relating to the protection of victims of non-international armed conflicts (protocol ii), 8 june 1977 udayana journal of law and culture vol. 4 no. 1, january 2020 23 human rights mostly comes from violations that occurred in hostilities, such as the violation that occurred in the aceh conflict.6 the conflict that was categorized as an armed conflict in aceh occurred for almost thirty years between the free aceh movement (gam) and the indonesian armed forces (tni).7 at that time, both gam and tni did violations against civilians. the violations inter alia; kidnapping, torture, murder, and, rape.8 the crimes injured the victims, physically and mentally. moreover, article 27 of the geneva convention 1949 describes the rights of civilians including the rights relating to them as a person, their honor, their family, their religious convictions and practices, and their manners and customs. all those rights should be protected in all circumstances. they shall, at all times, get all the treatment based on humanity, and free from any violent acts or threats like insults and public curiosity.9 this research focuses on women victims. abuse towards women is one of the violations that commonly occurred in an armed conflict, whereas the woman should be protected and treated humanely under the geneva convention. women shall especially be protected against any attack on their honor, in particular against rape, forced prostitution, or any form of indecent assault without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the parties of the conflict. any adverse distinction based on a particular race, religion or political opinion should be excluded. the parties to the conflict may take such measures of control and security in regard to protect the civilian, especially a woman which become so necessary as a result of the armed conflict.10 the convention on the elimination of all forms of discrimination against women (cedaw) defines the discrimination against women as the action of any distinction, restriction or exclusion regarding human rights and fundamental freedom of the women in such field, such as in the economic, political, social, cultural, civil, etc. those actions have the purpose to impair the exercise and enjoyment the human rights by women with the ground of sex, irrespective of their status with the basis of equality of men and women.11 the establishment of regulations on human rights is also part of compliance with international law of human rights that have 6 wiratmadinata, an evolving model for conflict transformation and peacebuilding in aceh. banda aceh: aceh justice resource centre, 2009, 1. 7 ahmad farhan hamid. jalan damai nanggroe endatu (jakarta: penerbit suara bebas, 2006), 58. 8 yusuf al-qardhawy al-asyi. sejarah dan tujuan pemberontakan gam menurut hukum international (banda aceh: yayasan pena, 2018), 9. 9 international committee of the red cross, “treaties, states parties and commentaries”, https://ihl-databases.icrc.org 10 read article 24 geneva convention 1949 on protection to civilians. see more explanation in lauren e. schroeder, “the rights of muslim women in the middle east: a pathfinder”, international journal of legal information, vol 37 (1) 2009; sally engle merry, “constructing a global law-violence against women and the human rights system, law & social inquiry” 28, no. 4 (2003); and marsha a. freeman, “the human rights of women under the cedaw convention: complexities and opportunities of compliance, proceedings of the asil annual meeting, vol 91, 1997. 11 article 1 of convention on the elimination of all forms of discrimination against women (cedaw) 1979, http://www.un.org/womenwatch/daw/cedaw/ https://ihl-databases.icrc.org/ http://www.un.org/womenwatch/daw/cedaw/ reparating women’s rights violation within aceh truth and reconciliation commission (trc) m. ya’kub aiyub kadir and firmanila 24 been ratified by indonesia since act no. 5 of 1998 regarding the legalization of convention against torture and other cruel, inhuman or degrading treatment or punishment, and law number 29 of 1999 regarding the convention ratification on the elimination of all forms of discrimination.12 resolving human rights violation issues during aceh conflict time was the responsibility of the government of aceh which should be understood as the reason behind the establishment of the truth and reconciliation commission (trc). this commission is one of the government’s efforts to settle and discover the truth from the conflict. the establishment of regulation on the truth and reconciliation commission was an integral part of constitutional court decision number 6/puu-iv/2006 which became urgent and fundamental needs.13 but there was an absence of law since the act no. 27 year 2004 of truth and reconciliation had been annulled by the constitutional court.14 some institutions which filed judicial review before constitutional court to revoke article 1 paragraph 9 about amnesty, article 27 about compensation and rehabilitation for the victim was depended on the amnesty for the perpetrator, and article 44 of act no. 27 year 2004 on truth and reconciliation commission with the reason that those articles deemed to be against the 1945 constitution. the court was in opinion that amnesty could not be implemented to the perpetrator of the brave violations of human rights. 15 then about compensation and rehabilitation for the victim was not dependent on the amnesty. trc aims to disclose the truth of the conflict and provides the reparation and compensation as a form of state responsibility and perpetrators for violations committed to the victim.16 aceh trc was established under aceh qanun no.17 year 2013 through the act no. 11 year 2006 about aceh’s government as mandatory of an agreement between indonesian government and free aceh movement (gam) regarding their commitment to a peaceful, comprehensive and sustainable solution to the aceh conflict (known as mou helsinki).17 based on the data by aceh trc accessed on april 9th, 2019 there are 1300 statements collected in the field. the statement givers could be the victim, the family member of the victim, the witness, or the colleague of the victim. more than 20% of those statements are about the violations experienced by women.18 the violations include torture, abduction, murder, sex abuse, detention, deprivation of property, etc. the data were submitted by six districts of aceh’s province, whilst there are a total of 23 districts in 12m. ya’kub aiyub kadir, “the urgency of establishing the truth and reconciliation commission in aceh”, kanun: jurnal ilmu hukum 17, no. 3 (2015). 13 ali abdurrahman and mei susanto, "urgensi pembentukan undang-undang komisi kebenaran dan rekonsiliasi di indonesia dalam upaya penuntasan pelanggaran ham berat di masa lalu." padjadjaran journal of law 3, no. 3 (2016): 509-530. 14purnomo sucipto, “penyelesaian pelanggaran ham berat masa lalu melalui kkr”, https://setkab.go.id 15 jiwon suh, "preemptive transitional justice policies in aceh, indonesia." southeast asian studies 4, no. 1 (2015): 95-124. 16 kkr aceh, mengenal kkr aceh, aceh trc handbook, 13. 17 read the operational variables of this research 12 for more information about mou helsinki. 18 based on data by ainal mardhiah as commissioner of aceh truth and reconsiliation commission. april 9, 2019 https://setkab.go.id/ udayana journal of law and culture vol. 4 no. 1, january 2020 25 aceh. it proved that the state had failed to protect women’s victims during armed conflicts. meanwhile, human rights should be respected in all legal circumstances.19 in this research, there are two women victims as the samples of the issues (a, and m). they were damaged during the aceh conflict. a was a wife of the free aceh movement (gam) governor and a mother of two children. even though her husband was a combatant, she has never been involved in any of a gam activity. in 2003, tni members detained and tortured her in a remote mountain in aceh,20 and the kind of tortured refers to beating using wood. tni members had previously stolen the ship of a and damaged a’s house. even after the end of the conflict, the aftermath of the incident was still endured by a. around the same time, m was also damaged, detained and tortured. m was having a baby when she was detained, which prevented her from breastfeeding her baby for a day. meanwhile, there were other four children who needed to be taken care of. when the interview was being conducted, m confirmed that her legs still pains to this day since the torturing day. but she’s never been through any kind of recovery attempts such as be given remedies, restitution, or rehabilitation. 21 stories above show that during the conflict time, women are often bound to take the role as the head of the family in order to replace the missing or dying husband to take in charge for livelihood and other duties such as taking care of the children, ensuring their education, food, and basic services, to income management.22 the end of conflicts does not mean the end of woman victims. women mostly continue to sacrifice and suffered in terms of medication, physic, psychology and socio-economic consequences of the torture long after it ended. that is why ensuring women’s access to justice is important and requiring women to enjoy their rights such as rights to remedy, restitution, and rehabilitation. in this context, the role of aceh trc should be examined. 1.2. research problem this paper inquires three research questions. firstly, what is the meaning of trc in the post-aceh conflict context?. secondly, to what extent has the aceh trc fulfilled woman rights as a victim in the aceh conflict? finally, what are the challenges facing trc in the fulfilment of woman rights as a victim in the aceh conflict? 19 inter-parliamentary union, human rights, united nations human rights office of the high commissioner, 2016, 22. 20 mountain in aceh and the post of indonesian armed forces (tni). 21 interviews conducted with the victim, (a) on june 16, 2019. 22 debbi schaubman, “sociology, social lives, and social issue,” in women’s studies: a recommended bibliography, 3th edition, ed. linda a. krikos and cindy ingold (london: libraries unlimited, 2004), 349. reparating women’s rights violation within aceh truth and reconciliation commission (trc) m. ya’kub aiyub kadir and firmanila 26 1.3. method/researchoutline this article utilised normative and empirical methods. normative serves to see the law while empirical research is to explore how the law is implemented. for the first problem identification of this article, data obtained through the regulations and interview. the methods used to obtain the primary data are interviews with respondents and informants, wherewith to obtain secondary and tertiary data was conducted a library research. in order to compile data in the research, primary and secondary data are applied. the primary data is data obtained directly from the field related to the problems studied by conducting interviews with two victims (a and m), the head of aceh trc, the commissioner of aceh trc on women’s department, a staff of flower aceh institution, and the activist of women’s rights. secondary data includes the following legal instruments; geneva convention (1949), universal declaration on human rights (1948), convention on the elimination of all forms of discrimination against women 1979, act no. 39/ 1999 on human rights, act no. 27/ 2004 on trc, mou helsinki 2005, act no. 11/ 2006 on aceh’s government, aceh qanun no. 17/ 2013 on aceh trc. 1.4. literature review aceh trc is a non-judicial institution to solve the human rights violations that occurred during aceh’s conflict.23 the aceh trc is expected to operate from 2016 to 2021 and could be continued for the next period.24 the establishment of trc’s aceh has three goals, they are: strengthening peace by revealing the truths about past of human rights violations; achieving reconciliation between the perpetrators of human rights violations, both individuals and institutions with the victims; and recommending comprehensive reparation for victims of human rights violations, in accordance with universal standards relating to the rights of victims.25 aceh trc aims to uncover the truth about the human rights violations that occurred whether in aceh or abroad as long as it was related to aceh’s conflict. the first step is meant for the violations that have been done from december 4th, 1976 until august 15th, 2005. the second step is meant for the violations that had been done before december 4th, 1976. the second step can be done when the first step has been completed by trc. it is shown that there is a retroactive principle in aceh trc’s working and it could continue to the violence in the colonial era.26 colonialera is an era when the practice of domination or practice of acquiring full or partial political control over another country, occupying it with settlers and 23 m. yakub aiyub kadir, in seminars on the relationship of islamic law and international humanitarian law that has been held in law faculty, syiah kuala university on may 14, 2019. 24 read article 14 paragraph 2 of aceh qanun on trc no. 17 year 2013. 25bisma yadhi putra, “ aceh truth and reconciliation commission : a diplomatic brief”, published on april 2, 2019, http://kkr-aceh.com/berita/aceh-truth-andreconciliation-commission-a-diplomatic-brief 26 interviews conducted with the head of trc’s aceh, afridal darmi on may 8, 2019. http://kkr-aceh.com/berita/aceh-truth-and-reconciliation-commission-a-diplomatic-brief http://kkr-aceh.com/berita/aceh-truth-and-reconciliation-commission-a-diplomatic-brief udayana journal of law and culture vol. 4 no. 1, january 2020 27 exploiting it economically such as occurred in the indonesian context.27 but rationally, it will be hard to uncover the truths from the very long times ago because the population keeps changing and the proofs that will be very difficult to unravel. uncovering the truth is aimed to: encourage policy changes and improvements to institutions that had resulted in past violations; to achieve accurate information about human rights violations and suspected grave human rights violations, based on the evidence and facts that have been collected, including analyzing the causes, underlying events, political and/or economic motivations, actions and actors both state and non-state institutions and their impact; to fulfil the rights of victims to obtain truth and justice; and to clarify the history of aceh.28 to achieve the goals, aceh trc is working based on the principles of participation, transparency, prioritizing protection and recovery of victims, refuse amnesty, right of reply for the perpetrator, balanced proof, individual and institutional, responsibility, preventive action, complementary, diversity approach, gender perspective, professional.29 the head of aceh trc, afridal darmi stated that participation in these terms refers to volunteerism whether from victims or perpetrators regarding the uncovering of the truth. trc does not have the right to force the victim to tell their painful experience and also cannot force the perpetrator to admit the crimes that they have committed.30 it was different from the south african trc, where they have the power to call by force the perpetrators but has never been used. because they realized that it would be impossible for them to force the generals to attend. but there was another way, namely by asking the court to present the person and charge them with hiding information. in the step of uncovering the truth, aceh trc cooperates with the witness and victim protection agency of aceh. this collaboration is carried out by utilizing experts in matters of witness and victim protection.31 based on the assumption that the perpetrator cannot be asked for justice because of his influence, the next problem is ‘what is left for the victim’? that is why the step meant to uncover the truth is important, the victims want their voices to be heard. then the next step is reconciliation. reconciliation is the step to achieve peace between the victim and the perpetrator. the reconciliation forum was formed to bring together the perpetrator to ask the victim to apologize to them and the victim to forgive the perpetrator.32 reconciliation mechanism as set out in law no. 27 year 2004 has a juridical consequence on the compensation to be provided to the victims such as compensation, restitution, and rehabilitation, as stated in this law 27see the historical self-determination conflict in indonesia in m. yakub aiyub kadir (2015), loc.cit. also in stanford encyclopedia of philosophy, “colonialism”, https://plato.stanford.edu/entries/colonialism/ 28 read aceh qanun on trc no.17 year 2013, article 20. 29ibid, article 4. 30 based on participation principle, while the principle meant that based on the voluntary by the parties. 31 kkr aceh, op.cit., 72-73. 32 read aceh qanun no. 17 year 2013 about aceh trc, article 1 paragraph 20. https://plato.stanford.edu/entries/colonialism/ reparating women’s rights violation within aceh truth and reconciliation commission (trc) m. ya’kub aiyub kadir and firmanila 28 that the uncovering of truth is also for the interest of victims and/or their families who are beneficiaries for compensation, restitution, and/or rehabilitation.33 that is why the statement giver not only the victim, but it could be the family or the relatives of the victims. based on aceh qanun no. 17 year 2013, reconciliation is the result of a sequence of processes from uncovering the truth, recognition, and forgiveness, and the re-acceptance of victims and perpetrators by the community, through the aceh trc by using aceh's customary mechanism in order to resolve human rights violations to create national peace and unity. the important point of the reconciliation is the desire of the perpetrator to escape from guilt and the desire to forgive by the victim. aceh trc has conducted some parties who want to be reconciled by aceh trc but until mei 8, 2019, the time conducted an interview with the head of aceh trc stated that they have not established the reconciliation forum yet. based on aceh qanun no. 17 year 2013, reconciliation is the result of a sequence of processes from uncovering the truth, recognition, and forgiveness, and the re-acceptance of victims and perpetrators by the community, through the aceh trc by using aceh's customary mechanism in order to resolve human rights violations to create national peace and unity. the important point of the reconciliation is the desire of the perpetrator to escape from guilt and the desire to forgive by the victim. aceh trc has conducted some parties who want to be reconciled by aceh trc but until mei 8, 2019, the time conducted an interview with the head of aceh trc stated that they have not established the reconciliation forum yet. there are two hundred victims recorded to the urgent reparation but it could not be fulfilled because trc was still waiting for the funding from aceh’s government.34 the geneva convention i for the amelioration of the condition of the wounded and sick in armed forces in the field creates the provisions of equal treatment of both women and men. however, it has been indicated that women should be treated with all consideration due to their sex.35similarly, the geneva convention -iii for the treatment of prisoners of war provides equality of treatment of women and men and ensures the treatment of women with all the regard due to their sex. correspondingly geneva convention iv 1949 for the protection of civilian persons in time of war reads that women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault.36 in the long armed conflict situation, women are among the persons protected by the fourth geneva convention in relation to the protection of civilian persons in the time of war. as mentioned in article 3 of the common articles of the geneva convention (1949) that women are protected by the foundational guarantees covering the treatment of persons not taking part 33deddy ardiyan prasetyo, “indonesia’s truth and reconciliation commission as a mechanism for dealing with gross violations of human rights”, (dissertation. master of law in human rights, the university of hongkong, 2006), 11. 34ibid. 35 read article 12 geneva convention 1949 on protection to civilians 36 read article 27 paragraph 2 of geneva convention 1949 on protection to civilians. udayana journal of law and culture vol. 4 no. 1, january 2020 29 in the war or hostilities. however, this article does not provide special protection for women. to guarantee access to justice for women to enjoy the principle equality before the law, ensuring that procedures are in line to guarantee non-discriminatory process to justice in general meaning, and also that women victim can accessible to remedies and the likes when their rights have been degraded. these rights are including article 23 on the right to a remedy and article 26 on the rights of equality before the law of the international covenant on civil and political rights (iccpr) 1966. 37 in armed conflict, violence against women takes several forms. during the past decade, there are much attention that has been paid to by the global community about the link between gender-based violence and conflicts. the impact of the conflict damages women’s lives, whether on civil and political or on economic and social terms. although currently many attempts to attack violations against women both during conflict or post-conflict circumstances, still women remain continued to be an object of violations. several examples are sexual abuse, sexual slavery, rape, abduction, and other kinds of sexual abuses such as forced in nudity, and other public humiliation and violating acts. 38 the current example is concerning the rohingya case which has been attracted to international attention. 39 the un legal framework is concerned that convention on the elimination of all forms of discrimination against women (cedaw) 1979, then so-called the international instrument of women's rights, neither has any direct reference to the violence against women nor to the women's rights during the wartime. nevertheless, it also has no provisions suspending its applicability during wars or armed conflicts. therefore it has been indicated that state parties to convention are obliged to follow and obey the convention during armed conflict, state of emergency, within its jurisdiction, both in its own territory and in occupied territories if any.40 under general recommendation number 19/1992, the committee on the elimination of discrimination against women (edaw), confirmed that war or armed conflicts and the occupation of territories tend to lead to various issues such as prostitution, women trafficking and sexual assault of women, which necessitate specific tool to protect and punitive measures. 41 even more, this crime has been used by warring parties to be part of a tactic to win the battle.42 37 read article 23 and 26 of international covenant on civil and political rights (iccpr) 1996. 38 rashida manjoo and calleigh mcraith, manjoo, rashida, and calleigh mcraith. "gender-based violence and justice in conflict and post-conflict areas." cornell int'l lj 44 (2011): 11-31. 39 elisabeth rehn and sirleaf ellen johnson. women, war and peace: the independent experts’ assessment on the impact of armed conflict on women and women’s role in peace-building. (new york: united nations development fund for women/unifem, 2002). michail vagias, “the prosecutor’s request concerning the rohingya deportation to bangladesh: certain procedural questions”, leiden journal of international law 31, no.4 (2018). 40 ibid. 41 rashida manjoo and calleigh mcraith, op.cit. 42 elisabeth rehn and sirleaf ellen, loc.cit. reparating women’s rights violation within aceh truth and reconciliation commission (trc) m. ya’kub aiyub kadir and firmanila 30 the committee on the edaw stated in its general recommendation number 28 of 2010, that ‘states parties must further ensure that women have recourse to affordable, accessible and timely remedies, with legal aid and assistance as necessary, to be settled in a fair hearing by a competent and independent court or tribunal, where appropriate’. furthermore, the basic principles and guidelines on the right to a remedy and reparation for victims of grave violations of international human rights law and serious violations of international humanitarian law have called for state parties for providing proper assistance to victims, particularly women victim seeking access to justice system including legal aid and also ensuring adequate, effective and prompt remedies for victims of serious or grave violations (general assembly resolution 60/147).43 additionally, the cedaw committee has defined violence against women as a form of discrimination against women and one of the grave breaches of women's rights. thus the committee has mentioned the situation of women in the armed conflicts, and the issues of violence against women in particular, in its reports submitted on an exceptional basis and in its general recommendation number 30 on women in conflict prevention, conflict, and post-conflict circumstances.44 the effective remedy is relevant for the realization of all packs of human rights and is to be enjoyed on the basis of equality, without discrimination of any form such as on the basis of sex or gender. the human rights committee, under its (general comment no. 31 year 2004), stated that for the right to an effective remedy to be fulfilled, reparation has to be provided to the victim of a human rights violation. moreover, cedaw requires state parties to establish legal protection of the rights of women on an equal basis with men, to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination.45 when any conflict has ended does not reflect into an end of the violence against women.46 women with severe mental illness need special attention because of serious wound or trauma which must be felt by any victim could be disturbing to their future life. that is why public awareness needs to be created with respect to the following: 1. women need more care and protection. 2. the negative attitude toward mental illness. 3. the society has to accept people with mental illness. 4. good family support greatly improves the prognosis. 5. the mental illness on the victim should be promptly treated.47 43the international commission of jurists, the right to a remedy and reparation for grave human rights violations, practitioners guide no. 2 revised edition, 2018. 44natalia buchowska, "violated or protected. women's rights in armed conflicts after the second world war." international comparative jurisprudence 2, no. 2 (2016): 72-80. 45 read article 2(c) of cedaw, un women, “ convention on the elimination of all forms of discrimination against women”, cedaw 29th session 30, https://www.un.org 46 united nations, “women’s human rights and gender-related concerns in situations of conflict and instability”, united nations human rights office of the highcommissioner, https://www.ohchr.org/en/issues/women/wrgs/pages/peaceandsecurity.aspx 47 sharma indira, "violence against women: where are the solutions?." indian journal of psychiatry 57, no. 2 (2015): 131. https://www.un.org/ https://www.ohchr.org/en/issues/women/wrgs/pages/peaceandsecurity.aspx udayana journal of law and culture vol. 4 no. 1, january 2020 31 in addition, there is the due diligence of states to prosecute,48 punish and compensate for human rights violations committed by non-state actors has also become a well-recognized international norm. states have to ensure that all victims particularly women of human rights violations have accessed to immediate tools of reparation, that perpetrators of crime are prosecuted and punished, and that mechanisms for this are accessible to women.49 it can be access to criminal or civil remedies so that the establishment of effective protection, support, and rehabilitation services for survivors of violence occurred. in indonesia, the definition of human rights violations or abuses is currently limited to those rights under law no.39/ 1999 on human rights.50 mou helsinki 2005 mandated a judicial mechanism, in the form of a human rights court, and a non-judicial mechanism, in the form of a trc, to address human rights violations that occurred during aceh’s conflict period. these mechanisms have been stipulated also in the aceh government’s law no. 11/ 2006. the aceh trc and the human rights court are both obligations of both the government of aceh and the government of indonesia to address human rights violations and to fulfil victims’ rights to truth, justice, and reparation.51 in the context of human rights violation, the word of remedy could be meant as efforts or actions of the state responsibility form to provide maximum and effective efforts especially to the victims of human rights violation, of which the form is like the reparation. the universal declaration of human rights (udhr) stated that “everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”52 beside stated in the udhr, there are some international instruments that also stipulate the issue of remedy, among others, the international convention on civil and political rights (iccpr) 53 and the convention against torture (cat).54 this instrument comprises an obligation to ensure and respect for implementing international human rights law. 48 based on max planck encyclopedia of public international law (mpepil), definition of due diligence is an obligation of conduct on the part of a subject of law, oxford public international law, 2010. 49 united nations, “basic principles and guidelines on the right to a remedy and reparation for victims of grave violations of international human rights law and serious violations of international humanitarian law”, 2005 https://www.ohchr.org/en/professionalinterest/pages/remedyandreparation.aspx 50 deddy ardiyan prasetyo, op.cit., 9. 51asia justice and rights, “press release: first-year anniversary of the aceh truth and reconciliation commission”, 2017. https://asia-ajar.org/2017/11/press-release-firstyear-anniversary-aceh-trc/ 52 read article 8 of universal declaration of human rights 1948. 53 commentary to the declaration on the rights and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms, “the rights to an effective remedy”, chapter viii, juli 2011. 54 ibid. https://www.ohchr.org/en/professionalinterest/pages/remedyandreparation.aspx https://asia-ajar.org/2017/11/press-release-first-year-anniversary-aceh-trc/ https://asia-ajar.org/2017/11/press-release-first-year-anniversary-aceh-trc/ reparating women’s rights violation within aceh truth and reconciliation commission (trc) m. ya’kub aiyub kadir and firmanila 32 2. result and discussion 2.1. the role of aceh trc regarding women’s rights as victim of aceh’s conflict there is known a distinction principle in international humanitarian law that must be respected by the combatant in hostilities. the principle means that the combatant should distinguish the civilians and combatants as well as distinguish civil objects and military objectives. in aceh’s conflict, the combatant has violated this principle. many protected persons got damages by the combatant, whether for their objects or themself. most damages were felt by women because at that time the men only have two choices, went to the mountain or moved to outside aceh.55 that is why the women who often faced the combatant. there are many violations felt by women, such as: torture, murder, destruction, detention, physical attack, enforced disappearance, threat, arrest, sexual violence, extortion, robbery, theft, and etc.56 armed conflict damaged the women and place them to a heightened risk of sexual, physical and psychological threat. studies show that the roots of such violence which occurred both in peace and in conflict are similar, which is unequal power relations (gender bias) between men and women and a patriarchal value system in the community.57 the violence against women occurred in many countries and this is a big issue. the reason why the women as victim in any acts of violence would be a big issue and problem in the world is that women have a certain status in a certain area. for example, women have the highest status in aceh’s society. it can be shown with the view of aceh’s citizens that they may be persecuted but not with the women in their family. the other reason is based on cultural stereotypes and customs spread all over the world, women are seen as unequal to men. such a perception of women's position in society is the major factor influencing the prevalent problem of violence against women. due to the unequal cultural position of women even in peace situations, women become particularly vulnerable to violence and in reality become victims of violence more often than men.58 as stated in the report of the un declaration on the elimination of violence against women, that violence against women was an impact of unequal power relations between men and women in a fragile community, resulting in suppression or discrimination against women. the developments in this period show that the violence is real so that we need an act for the prevention of such crimes as soon as possible. to solve such human rights violations, many countries in the world have made many efforts.59 aceh trc is an effort of the aceh’s government in this aspect. 55 interviews conducted with nursiti on may 13, 2019. she was a women’s activist of aceh. 56 data from ainal mardhiah. 57 reilly niamh, women’s human rights. (polity press, 2009), 98. 58 buchowska natalia, op.cit., 2. 59 see several examples, e.g. judith gardam, “women, human rights and international humanitarian law”, international review of the red cross archive 38, no.324 (1998); hanafi arief, “legal protection against women victims by the indonesian domestik violence act no. 23 year 2004”, sriwijaya law review 1, no.1 (2017); l. muthoni wanyeki https://www.cambridge.org/core/journals/journal-of-african-law/article/l-muthoni-wanyeki-ed-women-and-land-in-africaculture-religion-and-realizing-womens-rights-zed-books-2003-1699/580b405b1caea7b52fbab325a70b7466 udayana journal of law and culture vol. 4 no. 1, january 2020 33 nowadays, aceh trc does the first goals of trc that uncover the truth. the way they use to fulfil this goal is collecting statements, especially from victims. until 9 april 2019, the amount of data that collected was 1300 statements, 266 of them are stated by women. those 266 statements were stated by 36 women victims, 39 statements by women who have a relation with the victims, 45 statements by the women witnesses, and 146 statements by women’s relatives of victims. all data collected from 12 districts of aceh. in each district have one regional coordinator and three servant officers to collect the data.60 based on data, the violence faced by women included torture, destruction, detention, physical attack, enforced disappearance, murder, threats to victims, threats to the victim's family, sexual violence, thievery, and etc. the data also show that the amount of women’s victims was 57 people. where the number of statements was 1300 and women’s statement giver was 266 people. it means that the amount of the victim does not mean the same as the amount of statement. the rest of the statement giver, 1034 men as statement giver. it could be from men as a victim, men who have a relation with the victim, men witnesses, or men‘s relatives of the victim.61 after uncovering the truth, the next step to get the reparation is reconciliation. it means that the victims need to pass some steps and will take many times to get the reparation. even though, women victims should be handled with certain treatment with the consideration there will take different evidence to prove their statement.62 the certain treatment refers to the action take by aceh trc in fulfilling the rights of women’s victims, such as the rights of rehabilitation is urgently required. it could be through providing an immediate treatment that depends on the wound suffered by the victim, for example, physical control and psychological therapy.63 the reparation toward victims of human rights violation according to dinah shelton could be restitution, compensation, satisfaction, and guarantees non-repetition. 64 meanwhile, the black’s law mentions the remedies are ‘the field of law dealing with the means of enforcing rights and redressing a wrong. 65 besides that, the remedy also gives guarantees a procedural and a substantive claim.66 the right to a remedy when rights are violated is guaranteed by international human rights instruments. the victim’s rights refer to a set of norms that determine the treatment and (ed.), women and land in africa—culture, religion and realizing women's rights (zed books, 2003). 60 data from ainal mardhiah. 61 ibid. 62 interviews conducted with an aceh women’s activist, nursiti on may 13, 2019. 63 ani purwanti, “protection and rehabilitation for women victims of violence according to indonesian law (study on central java government’s handling through kpk2bga),” diponegoro law review 2, no.2 (2017); 312-325. 64 hao duy phan, "reparations to victims of gross human rights violations: the case of cambodia." e. asia l. rev. 4 (2009): 277. 65 cristie ford, “dogs and tails: remedies in administrative law” in administrative law in context, ed. lorne sossin and colleen flood (toronto: emond montgomery, 2013). 66 theo van boven, “victim-oriented perspectives: rights and realities,” in victims of international crimes: an interdisciplinary discourse, ed. thorsten bonacker and christoph safferling (the hague: t.m.c. asser press, 2013), 17-27. reparating women’s rights violation within aceh truth and reconciliation commission (trc) m. ya’kub aiyub kadir and firmanila 34 entitlements that victims of human rights violations have with regard to remedies and reparations.67 so far, aceh trc does its duty on equality before the law. equality before the law shown through the principle of aceh work’s principle, that is participation and transparency. both victims and perpetrators can tell the truth to aceh trc whenever they want.68 on the other hand, aceh trc has not fulfilled yet the women’s rights to remedy, restitution, and rehabilitation. it can be seen from the data that aceh trc did not give the remedy or any kind of reparations to women’s victim. and also proven from the sample of women’s victims in this research that they did not get the right to remedy, restitution and rehabilitation from aceh trc. 2.2. the challenges facing aceh trc it is common sense that in retributive justice sense, the justification for amnesty was often unacceptable to many victims. 69 politicians or peacemakers may have been able to justify the exchange of formal justice for what they called peace, but it has been difficult for victims to consider while the perpetrators have received amnesty. but in aceh trc, there is no amnesty for the perpetrator of the grave human rights violations. justice is an essential element and sometimes prudent component of a victim's recovery and psychological healing.70 all people around the world have shared their desires to get away from any armed conflicts which have evidently contributed to brutal women victims of force.71 aceh trc existed because that was authorized by aceh’s government. the funding of aceh trc came from the regional income and expenditure budget. the limited budget impact on the performance of trc. with a limited budget, the staff-owned is limited so the work is not optimal. not optimal here is because they work slowly. meanwhile, the reconciliation aspect should be done as soon as possible. trc collecting statements by themselves so it will take many times. another challenge is proven from the urgent reparation process. from the definition can be known that the urgent reparation is the step that trc should fulfil without passed the uncover truth and reconciliation. this has not fulfilled by trc while they have the data about the victim who needs urgent reparation. based on afridal darmi statement there are two hundred victims recorded to the urgent reparation but it has not fulfilled because trc still waiting for the funding from aceh’s government. but he was not sure until when to wait.72 67 jemima garcía-godos, “victims’ rights and distributive justice: in search of actors”, human rights review 14, no.3 (2013): 241-255. 68 interviews conducted with the head of trc’s aceh, afridaldarmi on may 8, 2019. 69 ibid. 70 kaminer debra, (et al), the truth and reconciliation commission in south africa: relation to psychiatric status and forgiveness among survivors of human rights abuse, 178 brit.j.ofpsychiatrv 373, 377, 2001. 71see hans-peter kaul, “victims’ rights and peace,” in victims of international crimes: an interdisciplinary discourse, ed. thorsten bonacker and christoph safferling (the hague: t.m.c. asser press, 2013), 227. 72 interviews conducted with the head of trc’s aceh, afridal darmi on may 8, 2019. udayana journal of law and culture vol. 4 no. 1, january 2020 35 3. conclusion there are three goals of establishing the aceh trc are strengthening peace by uncovering the truth about the past human rights violations, achieving reconciliation between the perpetrators of human rights violations, and recommending comprehensive reparation for victims of human rights violations. they should fulfil the first step so they can continue for the next one. currently (2019), trc is still collecting data to achieve the first goal of uncovering the truth. thus far, aceh trc has not fulfilled yet the women’s rights to remedy, restitution, and rehabilitation. it can be seen from the data that aceh trc has not given the remedy or any kind of reparations to women’s victim. there are some circumstances facing of aceh trc in achieving their goals. the main point of the challenge is the lack of attention from the central and provincial governments to help the performance of trc’s aceh. particularly, the lack of funding that adversely impacts the whole performance of aceh trc. even more, the need for reparation for victims remains questionable, as no funding provided. even though they have to carry out three steps sequentially; uncovering the truth, reconciliation, and reparation, the aceh trc should implement the urgent reparations as soon as possible considering the condition of the victims who need urgent reparation and cannot get their rights if handled with sequential stages. aceh trc has to give special attention to women’s victim such as creates the implementing policies on women’s victims and fulfil their rights as soon as possible. because in many cases, the evidence would be hard to find so aceh trc has to work faster. finally, the central government should be supportive of aceh’s trc as well as aceh provincial government. in particular, providing sufficient funding so aceh trc can fulfil the rights of women’s victim as soon as possible. bibliography book al-asyi, yusuf al-qardhawy. sejarah dan tujuan pemberontakan gam menurut hukum international. banda aceh :yayasan pena, 2018. hamid, a.f. jalan damai nanggroe endatu. jakarta :penerbit suara bebas, 2006. rehn, elisabeth and ellen johnson sirleaf. women, war and peace: the independent experts’ assessment on the impact of armed conflict on women and women’s role in peace-building. new york: united nations development fund for women (unifem), 2002. reilly, niamh. women’s human rights, polity 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"the prosecutor’s request concerning the rohingya deportation to bangladesh: certain procedural questions." leiden journal of international law 31, no. 4 (2018): 981-1002. https://doi.org/10.1017/s0922156518000481 thesis or dissertation prasetyo, deddy ardian. “indonesia’s truth and reconciliation commission as a mechanism for dealing with gross violations of human rights”, dissertation. master of law in human rights, the university of hongkong, 2006. legal documents aceh qanun no.17 year 2013 on aceh truth and reconciliation commission act of the republic of indonesia no. 11 year 2006 on aceh’s government act of the republic of indonesia no. 39 year 1999 on human rights protocol additional to the geneva conventions of 12 august 1949, and relating to the protection of victims of non-international armed conflicts (protocol ii), 8 june 1977 convention on the elimination of all forms of discrimination against woman (1979) convention (iv) relative to the protection of civilian persons in time of war. geneva, 12 august 1949. memorandum of understanding (mou) helsinki, 15 august 2005 international covenant on civil and political rights (1996). universal declaration of human rights (1948) https://doi.org/10.1111/j.1747-4469.2003.tb00828.x https://doi.org/10.14710/dilrev.2.2.2017.68-81 https://doi.org/10.1017/s0731126500003474 https://doi.org/10.4103/0019-5545.158133 https://doi.org/10.20495/seas.4.1_95 https://doi.org/10.1017/s0922156518000481 reparating women’s rights violation within aceh truth and reconciliation commission (trc) m. ya’kub aiyub kadir and firmanila 38 other documents the international commission of jurists, the right to a remedy and reparation for gross human rights violations, practitioners guide no. 2 revised edition, 2018. interview women’s victims: initial a and m head of aceh truth and reconciliation commission commissioner of aceh truth and reconciliation commission on women’s department staff of flower aceh institution activist of women’s rights website content asia justice and rights, “press release: first-year anniversary of the aceh truth and reconciliation commission”, last modified november 1, 2017. https://asia-ajar.org/2017/11/press-release-first-yearanniversary-aceh-trc/ ihl database of icrc about customary ihl rule 7, https://ihldatabases.icrc.org>ihl stanford encyclopedia of philosophy. “coloniaslism”. last modified august 29, 2017, https://plato.stanford.edu/entries/colonialism/ united nations human rights, “basic principles and guidelines on the right to a remedy and reparation for victims of grave violations of international human rights law and serious violations of international humanitarian law”. https://www.ohchr.org/en/professionalinterest/pages/remedyandr eparation.aspx united nations human rights, “women’s human rights and gender-related concerns in situations of conflict and instability”. https://www.ohchr.org/en/issues/women/wrgs/pages/peaceands ecurity.aspx https://asia-ajar.org/2017/11/press-release-first-year-anniversary-aceh-trc/ https://asia-ajar.org/2017/11/press-release-first-year-anniversary-aceh-trc/ https://plato.stanford.edu/entries/colonialism/ https://www.ohchr.org/en/professionalinterest/pages/remedyandreparation.aspx https://www.ohchr.org/en/professionalinterest/pages/remedyandreparation.aspx https://www.ohchr.org/en/issues/women/wrgs/pages/peaceandsecurity.aspx https://www.ohchr.org/en/issues/women/wrgs/pages/peaceandsecurity.aspx udayana journal of law and culture vol. 02 no.1, january 2018 preface it is an honour for us to continuously publish udayana journal of law and culture (ujlc). the current edition (volume 2 number 1-january 2018) highlights the issue of “mainstreaming socio-cultural policy”. terms ‘law‘ and ‘policy’ may be academically having different meanings. it is generally understood that both words inherently serve for relatively similar functions which are to keep the society in order and to achieve a great benefit to people. socio-cultural policy in this context may then be regarded as a policy that has been (or should be) taken by authorities to address any societal and cultural issues that may have an impact on the society. there are two articles revealed the concern on the legal rights and social security of workers that are not only guaranteed by public law instruments but also private contractual documents adopted by employers and employees. the first article analyses what can be considered as a proper and weighty reason or an extremely weighty reason to end an from legal practices and relevant literature. the second article is developed under the policy-oriented approach that assesses new zealand’s recognised seasonal employer (rse) policy which may strongly affect the continues use of indonesian migrant workers as it concerns on the clarity of rights and obligations of indonesian workers and new zealand companies as arising from the employment contract concluded by both parties. the third article explicitly mentions ‘a socio-cultural approach to policy-making’ by taking an example of public private partnership (ppp) in senior high school program in the philippines. it provides a lens to policy making to further develop an understanding of how policy appropriation and production from the local context can inform institutional approaches in facilitating relevant student experience within the realm of ppp in education. culture issues are very much deliberated in the remaining two articles. the fourth paper attempts to view a major complication of human rights in environmental protection ideas and tries to convince environmental policy-makers that human rights are defined within the environmental culture. this article concludes that human ‘environmental’ rights could only set apart the intrinsic environmental values that will undeniably affect the foundation of policy making for further and the ecological denial of human embeddedness in nature. the fifth article explores the issue of the balinese women discrimination to inherit under the balinese customary law. the findings of the research reveal that balinese customary law protects properly both men and women rights’ to inherit, while in the same way, they are also subject to discrimination on a certain occasion. such structure makes clear that both genders have their own means to enjoy rights of inheritance that are applied in different situations. allow me to deliver my thankfulness to i ketut tika who kindly provided language assistance to ujlc. also, we would like to express our great appreciation to all authors, submissioners, editors and reviewers who are academicians and legal professionals from indonesia and some other countries for their generous contribution in this edition. hopefully, the current edition would stimulate scholars and practitioners all over the world to submit their papers to the ujlc for the upcoming editions. editor in chief ii e-issn 2549-0680 e-issn 2549-0680 vol. 7, no. 2, july 2023, pp. 121-140 121 safeguarding indigenous rights and territories: integrating dayak ngaju wisdom in peatland ecosystem management sumarni1, muhammad ery wijaya2, astrid meilasari sugiana3 1,2,3 school of government and public policy, bogor, indonesia keywords abstract ecosystem value; indigenous dayak; peatland management; traditional practice. in indonesia, the legal system heavily favors state ownership of land, leading to the marginalization of indigenous peoples and their traditional land management practices. the prioritization of economic development over environmental and cultural conservation has resulted in a limited understanding of the value of the peatland ecosystem for indigenous dayak communities, leading to inappropriate and ineffective peatland management policies. to address these challenges, this research adopts a descriptive qualitative approach, utilizing a cross-sectional research design that includes in-depth interviews and literature study to gather and analyze data from indigenous dayak ngaju communities in tumbang nusa and pilang villages, pulang pisau regency, central kalimantan province. the study uncovers that the indigenous dayak ngaju community has established a zonation system for peatland use, comprising separate areas for settlement, farming, and forest protection (pukung pahewan). the creation of specific policies for managing sacred areas is crucial to preserving indigenous values and practices. moreover, the absence of free, prior, and informed consent in certain policies and programs, such as the mega rice project, food estate program, and zero-burning policy, has caused social conflicts within the indigenous dayak community, leading to the destruction of their livelihoods. despite existing laws in indonesia that acknowledge the rights of indigenous peoples and safeguard their customary lands, the implementation and enforcement of these laws have proven weak and inconsistent. doi https://doi.org/10.24843/ujl c.2023.v07.i02.p01 author e-mail 1correspondence: sumarni.laman@sgpp.ac.id 2 ery.wijaya@sgpp.ac.id 3 astrid.sugiana@sgpp.ac.id this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licen ses/by/4.0/) 1. introduction the legal system in indonesia ensures the protection of the rights of indigenous people, including the indigenous dayak ngaju community.1 they 1 see mohammad jamin et al, "legal protection of indigenous community in protected forest areas based forest city," bestuur 10, (2022): 198-212; and yanarita et al, “development of the dayak ngaju community forest in the forest and peatland area, central kalimantan, indonesia,” environmental science, toxicology and food technology 8, no. 3 (2014): 40-47. yanarita characterizes dayak ngaju as indigenous communities residing in the central kalimantan province. in both literature and everyday language, dayak ngaju are often referred to as an "indigenous community," "tribe," or "subtribe." https://doi.org/10.24843/ujlc.2023.v07.i02.p01 https://doi.org/10.24843/ujlc.2023.v07.i02.p01 mailto:sumarni.laman@sgpp.ac.id mailto:ery.wijaya@sgpp.ac.id mailto:astrid.sugiana@sgpp.ac.id http://creativecommons.org/licenses/by/4.0/ http://creativecommons.org/licenses/by/4.0/ safeguarding indigenous rights and territories: integrating dayak ngaju wisdom in peatland ecosystem management sumarni, muhammad ery wijaya and astrid meilasari sugiana 122 are guaranteed full involvement in decision-making and sustainable management of the ecosystem in their territory. however, the lack of empowerment and ineffective implementation of these standards hinder the indigenous communities ability to fully leverage their knowledge, values, and wisdom in peatland management.2 it is crucial to highlight that the dayak people are indigenous people of kalimantan island, where indonesia's new capital is planned to be relocated. 3 with over 400 subtribes, each having its unique traditional system of land and natural resource management, the dayak community possesses valuable insights and practices.4 dayak community is categorized or grouped based on their dwellings in watersheds, such as the kapuas, katingans, seruyan, and barito river. dayak people who live in the upper river in central kalimantan province is called dayak ngaju.5 dayak ngaju heavily relies on the peatland ecosystem in which they live. 6 traditionally, they have utilized the peat swamp forests for various small-scale activities such as timber harvesting, gathering food and medicinal plants, and obtaining clean water. as forest-dwelling people, the environment has played a significant role in shaping their culture and way of life, with the peatlands deeply intertwined with the customs and traditions of the indigenous dayak people.7 although law no. 32 of 2009 concerning environmental protection and management promotes participatory principles in environmental conservation and management, with an emphasis on the value of local although these terms may hold distinct legal and anthropological connotations, this paper employs them interchangeably in a general sense to represent a community known as the dayak ngaju that inhabit an upper stream in central kalimantan province, united by collective ancestral connections to the land and natural resources, and steadfastly maintain the traditions passed down through generations. 2 see gusniarjo mokodompit et al, “ensuring the rights of indigenous peoples: international legal standards and national implementation,” the east journal law and human rights 1, no. 3 (2023): 127–136; myrna a. safitri, “dividing the land: legal gaps in the recognition of customary land in indonesian forest areas,” third world studies 30, no. 2 (2015): 31-45. 3 purnama julia utami and sri musrifah, "the political dynamic of dayak elite on relocating capital to kalimantan island," konfrontasi: jurnal kultural, ekonomi dan perubahan sosial 8, no. 4 (2021): 364-373. 4 see janes sinaga, juita lusiana sinambela, and reviandari widyatiningtyas, “social solidarity: getting to know the uniqueness and cultural appeal of traditional dayak tribes," east asian journal of multidisciplinary research 2, no. 4 (2023): 1661-1674; crevello s, “dayak land use systems and indigenous knowledge,” human ecology 16, no. 1 (2004): 69-73. 5 linggua sanjaya usop and indra perdana, "ritual hinting pali as resistance of the dayak ngaju community (case study of expansion of large-scaled palm oil company to ecology, dayak ngaju community)," lakhomi journal scientific journal of culture 2, no. 2 (2021): 73-81. 6 yanarita et al, loc.cit. 7 hergoualc’h kristell et al, “managing peatlands in indonesia: challenges and opportunities for local and global communities,” policy brief no. 205 (2018): 1-8. udayana journal of law and culture vol. 7 no. 2, july 2023 123 knowledge, there is still a need for further action to actively involve indigenous peoples, particularly the dayak community, in the management of peatland ecosystem. 8 this necessity arises from the historical context prior to the constitutional court decision no. 35/puu-x/2012, where the legal framework in indonesia did not recognize community ownership of forested land as previously stated in the law no. 41 of 1999 concerning forestry (forestry law).9 according to the forestry law, country's forests are categorized as state forest and private forest. the law declares that any forestlands in indonesia without private entitlements are considered state forestlands. unfortunately, the implementation of forest-protection actions in the past often excluded local communities, resulting in no tangible benefits for them.10 this lack of recognition resulted in conflicts between governmentdesignated zones and areas acknowledged under customary law. recognizing the rights of indigenous peoples, including the dayak community, to govern their natural resources has long been a demand.11 the recognition of customary forests as distinct from state forests, as stated in the constitutional court ruling, marked a significant change.12 however, several studies examining the limitations and challenges associated with the implementation of the constitutional court decision no. 35/puu-x/2012 have identified several important points. firstly, little power has been transferred in favor of indigenous people, as the state retains full authority in determining the procedure of customary forest recognition. secondly, the recognition of indigenous communities has been hindered by concerns of maintaining national integration and the complex articulation of indigenous identity due to historical and post-colonial dynamics. additionally, the absence of an indigenous peoples’ rights law has been a common reason for many local governments to avoid recognizing indigenous territories.13 8 see i dewa made suartha, hervina puspitosari, and bagus hermanto, “reconstruction communal rights registration in encouraging indonesia environmental protection,” international journal of advanced science and tehnology 29, no. 3 (2020): 1277-1293; saritha kittie uda, greetje schoutenc and lars hein, “the institutional fit of peatland governance in indonesia,” land use policy 99 (2020): 103300; and law no. 32 of 2009 concerning environment protection and management, art. 2. 9 safitri, op.cit., 46. 10 see kosuke mizuno, motoko s. fujita, and shuichi kawai. catastrophe & regeneration in indonesia's peatlands: ecology, economi & society (kyoto: nus press, 2016), 19-35; and law no. 41 of 1999 concerning forestry, art. 4. 11 candra perbawati et al, “legal discourse on customary forest determination progressive law based,” fiat justisia: jurnal ilmu hukum 17, no. 1 (2023): 17-30. 12 syaiful rachman, mansyur nawawi, and basrun umanailo, “judicial review of the constitutional court decision no. 35/puux/2012 about the existence of community customary forests,” journal of education, humaniora and social sciences 3, no. 3 (2021): 823-828. 13 see safitri, loc.cit; and hunggul y. s. h nugroho, andrew skidmore, and yousif a. hussin, “verifying indigenous based-claims to forest rights using image interpretation and spatial analysis: a case study in gunung lumut protection forest, east kalimantan, indonesia,” geojournal 87, (2022): 403–421. safeguarding indigenous rights and territories: integrating dayak ngaju wisdom in peatland ecosystem management sumarni, muhammad ery wijaya and astrid meilasari sugiana 124 the mega rice project, initiated in 1995 by president soeharto in central kalimantan, aimed to enhance food security but neglected the active involvement of indigenous dayak communities. 14 the project involved extensive drainage canal construction, deforestation, and the introduction of javanese transmigrants using unfamiliar farming methods, causing irreparable damage to the peatland and local communities. similarly, the food estate project, characterized by intensive modern farming, fails to consider the indigenous dayak ngaju wisdom in agricultural practices and community land management.15 this constitutes a violation of indigenous dayak people's rights as clearly recognized in the article 18b (2) of the 1945 constitution of the republic of indonesia and law no. 39 of 1999 concerning human rights.16 the peatland land use change in kalimantan, particularly for agricultural purposes such as monoculture production of palm oil and rice, has often disregarded the valuable knowledge and wisdom of indigenous communities.17 this disregard has led to significant consequences, including the degradation of ecosystems, socio-economic conflicts, and land disputes. the shift towards monoculture plantations, particularly palm oil and rice, has disrupted the delicate balance of peatland ecosystems, resulting in the loss of biodiversity and the destruction of natural habitats.18 the traditional knowledge held by indigenous peoples, which encompasses sustainable land management practices and a deep understanding of the ecological intricacies of the region, has been marginalized and ignored.19 as a result, the degradation of peatlands has not only had ecological implications but has also caused socio-economic conflicts as indigenous communities, whose livelihoods and cultural heritage are closely tied to the land, are marginalized and deprived of their rights. additionally, the neglect of indigenous land rights has fueled land conflicts, further exacerbating tensions and instability in the region.20 recognizing and incorporating the knowledge and rights of indigenous peoples is crucial for addressing these 14 jenny goldstein, “carbon bomb: indonesia’s failed mega rice project,” environment and society portal, arcadia, no.6 (2016): 1. 15 see petter aldhous, “land remediation: borneo is burning,” nature 432, (2004):144-146; and j.h.m wösten et al, “peat–water interrelationships in a tropical peatland ecosystem in southeast asia,” catena 73, no. 2 (2008): 212–224. 16 see the 1945 constitution of the republic of indonesia, art. 18b (2); and law no. 39 of 1999 concerning human rights, art. 6. 17 uda, schouten, and hein, loc.cit. 18 see aldhous, loc.cit. and goldstein, op.cit.,8. 19 nugroho, skidmore, and hussin, loc.cit. 20 yaghoob jafari et al, "risks and opportunities from key importers pushing for sustainability: the case of indonesian palm oil," agricultural and food economics 5, no. 1 (2017): 1-16. udayana journal of law and culture vol. 7 no. 2, july 2023 125 issues, promoting sustainable land use practices, and fostering a harmonious coexistence between agriculture and the environment.21 understanding the significance of the peatland ecosystem to develop effective management strategies requires acknowledging people's values, perceptions, and traditional knowledge systems. 22 the indigenous dayak people possess valuable traditional knowledge that provides a holistic understanding of the peatland ecosystem. the profound connectedness of indigenous people with nature and their wisdom have been highlighted as a vital aspect of the sustainable management of socio-ecological systems. by involving and valuing the knowledge and perspectives of indigenous communities, a more inclusive and participatory approach to peatland conservation can be developed.23 the present paper builds upon previous studies exploring the topic of indigenous land management and environmental justice. boag (2016) conducted a comparative study on australia and indonesia, providing insights into the benefits and limitations of different policy strategies for indigenous peoples in the asian-pacific region.24 jamin et al (2022) analyzed the protection of customary law communities in urban forest-based protected forest areas designated as the national capital, recommending the inclusion of legal protection provisions for indigenous peoples in the law on the state capital.25 furthermore, belliera and preaud (2011) examined the transformative effects of recognizing indigenous peoples globally, exploring various local contexts and strategies and uncovering transnational links and differences. 26 these studies contribute valuable perspectives to the understanding of indigenous land management and the pursuit of environmental justice for indigenous communities worldwide. this research aims to explore the values, cultural significance, and traditional practices held by the indigenous dayak communities regarding the peatland ecosystem. by understanding their perspectives, this study seeks to develop a comprehensive legal framework that actively involves and appreciates the 21 saritha kittie uda, lars hein, and elham sumarga, "towards sustainable management of indonesian tropical peatlands," wetlands ecology and management 25 (2017): 683-701. 22 zulkifli b. lubis, “social mapping of access to peat swamp forest and peatland resources”. indonesia-australia forest carbon partnership, (2013): 15-20. 23 kamaljit sangha, “global importance of indigenous and local communities’ managed lands: building a case for stewardship schemes,” sustainability 12, no. 19 (2020): 1-5. 24 mohammad jamin et al, “legal protection of indigenous community in protected forest areas based forest city,” bestuur 10, no. 2 (2012): 198-212. 25 carly boag, “a comparative study of the legal frameworks facilitating indigenous land management in postcolonial societies: indigenous australia and indonesian adat law,” brawijaya law journal 3, no. 2 (2016): 125-150. 26 irène bellier and martin préaud, “emerging issues in indigenous rights: tansformative effects of the recognition of indigenous peoples,” the international journal of human rights 16, no. 3 (2012): 474-488. safeguarding indigenous rights and territories: integrating dayak ngaju wisdom in peatland ecosystem management sumarni, muhammad ery wijaya and astrid meilasari sugiana 126 values of local communities in ecosystem management, fostering ownership, responsibility, and stewardship. ultimately, the goal is to establish effective and sustainable conservation strategies aligned with the aspirations and priorities of the indigenous dayak people, ensuring the long-term protection and well-being of both the peatlands and the indigenous communities. the research was conducted in tumbang nusa village and pilang village, located in pulang pisau regency, central kalimantan province. the selection of these villages as study areas was based on the following factors: first, the majority of the residents in both tumbang nusa and pilang villages, specifically over 90%, belong to the indigenous dayak ngaju community. these communities actively preserve and practice the traditional customs and culture of the indigenous dayak ngaju. second, both villages possess peatland ecosystems, which are currently undergoing changes in land use patterns. third, the proximity of the villages to the researchers and their ease of accessibility were additional factors considered during the selection process. to collect and collate the data for this study, a cross-sectional survey was used. a one-month in-depth interview was conducted in tumbang nusa village and pilang village from mid-september 2021 to mid-october 2021 using purposive sampling with a total of eighty-eight respondents. the indepth interview was conducted with village officials, dayak elders, mantir (indigenous leaders), a non-governmental organization (ngo) representative, researchers, and the provincial forestry department. 2. result and analysis 2.1. indigenous dayak ngaju peatland management there are no rules specifically governing peat forests in the dayak ngaju indigenous community. peat forest management is based on the zonation of the land. peat forests can be used as agricultural areas, settlements, or protected forests. peatland zonation is not based on the depth of the peat soil but based on the vegetation that grows in the area which then becomes a guideline for the community to determine the use of the area. it covers three zonations for the purposes of settlement, farming, and secondary forest. regarding the settlement zonation within the dayak ngaju indigenous community, the organization of villages follows traditional rules that have been passed down through generations. in the villages of tumbang nusa and pilang, most of the stilt houses are constructed on flat land near the river. consequently, peat areas adjacent to rivers are commonly utilized as settlement sites. this strategic choice is motivated by the convenience of udayana journal of law and culture vol. 7 no. 2, july 2023 127 accessing water, fish, and transportation routes, which are readily available in close proximity to riverside settlements.27 for the farming zonation, the selection of land for farming, known as "ladang," is guided by several considerations, which are the presence of a nearby river or creek, the abundance of fresh and green leaves on plants within the primary forest, and the presence of specific grasses and trees, such as taro, suna, bungur tree (lagerstroemia) and jajangkit tree. these criteria do not apply to areas that were previously cleared for agriculture. in such cases, the land can be reused if there are trees with a trunk diameter exceeding 15 cm.28 if a member of the dayak ngaju community clears land (a) within the primary forest for cultivation and subsequently re-cultivates it after a few years, the fertile land is referred to as "balik uwak." the individual who cleared the land is rewarded with rights to the land, acknowledging their hard work. according to dayak customary law, the responsibility for managing forests converted into agricultural land rests with the initial cultivator. this principle is enshrined in article 39 of the customary law of the dayak, known as "singer nalinjam bahu himba balikuwak." if another individual (b) wishes to work on the previously cultivated land (a), they are obligated to compensate the previous cultivator (a) with voluntary offerings such as rice, white chicken, whetstone, machete iron, pickaxe, and manas lilis. the subsequent rights to the former field, after being cultivated by individual (b) for one or two years, will revert back to the ownership of individual (a).29 the dayak ngaju people have developed a deep understanding of the peatland ecosystem through keen observation of the vegetation present in the area. by closely observing the growth of specific plants they can discern the ecological characteristics of the land. this indigenous knowledge guides their decision-making in choosing the most suitable areas for farming. they avoid utilizing deep peat for agricultural purposes, as they are well aware that the soil in such areas tends to be acidic and more beneficial for conserving as forested areas. for the secondary forest zonation, when a piece of land previously used for farming or "ladang" displays a thriving growth of valuable timber and fruit-bearing trees, it is conserved as a wood, fruit, medicine, vegetable, fish, and purun (grass species used for weaving) source forest. this designation ensures the availability of wood and fruits for the community's needs, allowing for sustainable utilization of these resources.30 27 five indigenous dayak elders from pilang and tumbang nusa villages, “indigenous dayak wisdom in peatland management” interviewed by sumarni, central kalimantan, 2-10 october 2021. 28 ibid. 29 ibid. see also dewan adat dayak barito utara. hukum adat https://www.dadbaritoutara.com/hukum-adat/ 30 ibid. https://www.dadbaritoutara.com/hukum-adat/ safeguarding indigenous rights and territories: integrating dayak ngaju wisdom in peatland ecosystem management sumarni, muhammad ery wijaya and astrid meilasari sugiana 128 2.1.1. dayak ngaju farming practice the farming practices of the dayak people integrate ecosystem management and dayak traditions. the stages of farming identified in their study are as follows: inspecting the land, determining the land area, cleaning farming tools, slashing, cutting trees, burning the land, planting, weeding, harvesting, and performing a thanksgiving ceremony. these ten stages are universally followed by the dayak people and must be completed.31 dayak farming is typically initiated in may, during the most favorable season, according to an indigenous elder from pilang and tumbang nusa village. for the dayak people, farming holds a deeper meaning beyond occupation; it is a spiritual connection with all beings, especially the almighty, the creator of the universe. before opening and clearing the forest, the dayak people perform a ritual called "mangariau" to offer prayers to the spirits of the forest guards, requesting them to relocate. mangariau is performed on small arable land, while for larger fertile lands, a ritual called "manyanggar" is conducted, involving the offering of pigs or cows.32 slashing and burning practices, although controversial due to their association with forest fires, play a crucial role in shifting cultivation by clearing land and enhancing soil fertility.33 the dayak people, however, have been practicing this tradition responsibly for centuries. they conduct controlled burns simultaneously, equipped with water and fire extinguishers, solely for agricultural purposes, and ensure no socioeconomic issues arise from these fires.34 cooperation is evident in dayak farming, as men create holes in the soil through dibbling (manugal), while women sow seeds in these holes. this collaborative planting process is accompanied by joyful interactions, jokes, and displays of various arts and cultures. the harvest marks the final stage of farming and brings great joy to the dayak people. they express gratitude by performing the ‘pakanan batu ceremony’ or "feeding the rock ritual," acknowledging the farming tools they used. these rituals exemplify the dayak people's respect for nature and all of creation, maintaining a harmonious relationship with their environment.35 31 see suriansyah and achmadi murhaini, "the farming management of dayak people's community based on local wisdom ecosystem in kalimantan indonesia," heliyon 7, no. 12 (2021): 1-7; and indigenous dayak mantir from pilang villages, “indigenous dayak farming” interviewed by sumarni, central kalimantan, 8 october 2021. 32 indigenous dayak elders, loc.cit. 33 peter j.a. kleinman, david pimentel, and ray b. bryant, "the ecological sustainability of slash-and-burn agriculture,” agriculture, ecosystems and environment 52, no. 2-3 (1995): 235-249. 34 suriansyah and murhaini, loc.cit. 35 indigenous dayak elders, loc.cit. udayana journal of law and culture vol. 7 no. 2, july 2023 129 traditional dayak farming embodies values such as togetherness, compassion, mutual cooperation, art, rituals, and spirituality. it is characterized by a harmonious relationship with nature, responsible land management with limited burning, communal activities (gotong royong), and the preservation of local knowledge with high values. forestry law and law no. 18 of 2004 concerning plantation prohibit land clearing through burning, except for specific exemptions introduced after the 1997–1998 forest fires.36 article 69 (2) of environmental protection and management law allows the continuation of fire use in traditional agricultural techniques while considering regional customs. 37 this exemption recognizes ancient practices of slash-and-burn as local knowledge protected under the law. however, there is ongoing debate and uncertainty about the definition and application of local knowledge.38 during the drafting of indonesia's new job creation law, discussions were held regarding the repeal of this exemption. however, the implementation of the exception remains complex, and instances have been reported where traditional farmers practicing their local knowledge were detained for using fire to clear land. the enforcement of the zero-burning policy has caused fear among indigenous communities, leading to disconnection from their land and traditions.39 additionally, the food estate program, which promotes zero-burning farming, has not effectively integrated dayak ngaju traditional values and knowledge in peatland management. the program's introduction of chemical fertilizers and non-local rice seeds conflicts with the regenerative farming system of the dayak people, which relies on local seeds and avoids chemical inputs. the implementation of similar program, mega rice project in 90s, had led to a significant change in the traditional dayak farming system, resulting in the abandonment of land in tumbang nusa and pilang villages.40 36 see law no. 41 of 1999 concerning forestry, art. 50; and law no. 18 of 2004 concerning plantation, art. 26. 37 law no. 32 of 2009 concerning environmental protection and management, art. 69 (2). 38 see uda, hein, and sumarga, loc.cit; and rika fajrini, "environmental harm and decriminalization of traditional slash-and-burn practices in indonesia,” international journal for crime, justice and social democracy 11, no. 1 (2022): 28-43. 39 see michelle staggs kelsall, roichatul aswidah, and randy wirasta nandyatama, “beyond commodication, toward job creation: indonesia at a crossroads.” (jakarta: sasakawa peace foundation, 2021: 9-18; and mongabay, “new indonesian law may make it harder to punish firma for haze-causing fires,” https://news.mongabay.com/2020/10/new-indonesian-law-may-make-it-harder-topunish-firms-for-haze-causing-fires/ 40 see ditta wisnu, “food estate program law politics,” journal of contemporary sociological issue 2, no. 1 (2022):76-91; and six indigenous dayak community and village official from pilang and tumbang nusa villages, “peatland use and land change in pilang https://news.mongabay.com/2020/10/new-indonesian-law-may-make-it-harder-to-punish-firms-for-haze-causing-fires/ https://news.mongabay.com/2020/10/new-indonesian-law-may-make-it-harder-to-punish-firms-for-haze-causing-fires/ safeguarding indigenous rights and territories: integrating dayak ngaju wisdom in peatland ecosystem management sumarni, muhammad ery wijaya and astrid meilasari sugiana 130 the 2015 forest fire incidents prompted the government to introduce new regulations regarding land clearing without burning, posing challenges for the dayak community, who relied on farming as their livelihood. as a result, many community members shifted their occupations to rubber farming and fishing, leading to the abandonment of land in the villages of tumbang nusa and pilang.41 2.1.2. pukung pahewan as conservation area the indigenous dayak ngaju has designated a primary forest in pukung pahewan as a reserve or protected forest, ensuring the tribe's future. this forest also serves as a sacred home for the "forest spirits" believed by the dayak ngaju people to coexist with the community. according to article 87 of dayak customary law, known as 'singer karusak pahewan, karamat, rutas dan tajahan,' anyone who mocks, burns, slashes, cuts down trees, or steals from the sacred area will face penalties. the punishment includes a demand for an inheritance penalty or compensation for the nearest village, ranging from 15 to 30 kati ramu. the offender must also conduct a small ceremony at the location, offering a pig sacrifice and covering the expenses of a mediator who communicates with the forest spirits as an act of apology.42 the indigenous dayak ngaju firmly believe in their responsibility to protect and preserve pukung pahewan, as it holds sacred and mystical messages within its traditions and rituals. any disturbance, destruction, or hunting of animals or plants in the area, whether intentional or unintentional, is met with sanctions. the community fears that not only the violators but the entire village may be subjected to punishment by their ancestors and the forest spirits.43 pukung pahewan represents a restricted space with specific constraints, where trees, stones, and other sacred elements must not be disturbed or harmed, including the surrounding area. it serves as a conservation methodology for the dayak people to protect nature and symbolizes their willingness to coexist harmoniously with all organisms in nature, including animals, plants, and forest spirits.44 despite various policies in indonesia regarding the conservation of peat forests, there is currently no policy that specifically addresses the and tumbang nusa village” interviewed by sumarni, central kalimantan, 14–20 september 2021. 41 indigenous dayak community and village official, loc.cit. 42 murhaini, loc.cit. 43 see bulkani, ilham, and saiffullah darlan, “pukung pahewan: the effort of natural resources conservation in dayak ngaju community,” in: iop conference series: earth and environmental science. 314 (2019): 1-9; and indigenous dayak elders, loc.cit. 44 merissa octora, "the local knowledge of dayaknese: case study of pahewan tabalean,” international conference on contemporary social and political affairs atlantis press, (2018): 104-107. udayana journal of law and culture vol. 7 no. 2, july 2023 131 management of pukung pahewan. this recognition of indigenous dayak ngaju values in sustainable forest management is crucial in the implementation of conservation efforts in central kalimantan. 2.2. leveraging indigenous dayak participation in peatland management through customary forest practices the indigenous dayak ngaju people have a deep understanding of the interconnectedness between their lives and the ecosystems they inhabit. their social, economic, and cultural aspects are intricately linked to the natural environment, and there exists a reciprocal relationship between the people and the land, encompassing a concept known as the "duty of care”.45 the duty of care implies a responsibility to care for and protect the land, which is closely tied to cultural norms and values. while the community benefits from the ecosystem, they recognize their duty to ensure its wellbeing. this perspective acknowledges that any benefits derived from the environment should be balanced with the preservation of cultural heritage and ecological integrity.46 in the dayak ngaju community, the economy is not viewed as separate from the ecosystems but rather as an integral part of them. the well-being of the community's economy is closely intertwined with the health of the surrounding ecosystems. as a result, there is a mutual exchange between the two, with the community relying on the resources and services provided by the ecosystem, while also recognizing the need to sustainably manage and conserve those resources. however, throughout the colonial and new order eras, the indigenous dayak ngaju people faced the unfortunate reality of their customary rights not being recognized, which deprived them of the authority to manage their natural resources and apply their local wisdom.47 this lack of recognition became evident during the soeharto era when the indonesian government initiated the ill-fated mega rice project in the peatlands of central kalimantan. tragically, the project's improper irrigation methods and degradation of the peatlands resulted in catastrophic forest fires in 1997, engulfing extensive areas that included pilang and tumbang nusa.48 without free, prior, and informed consent (fpic) from the community, the government proceeded with the construction of thousands of canals, resulting in the cutting and destruction of many villagers' farm areas. this 45 see bulkani, ilham and darlan, loc.cit.; and indigenous dayak mantir, loc.cit. 46 see sara a. thornton et al, "towards biocultural approaches to peatland conservation: the case for fish and livelihoods in indonesia." environmental science & policy 114 (2020): 341-351; and octora, loc.cit. 47 tjilik riwut, kalimantan membangun alam dan kebudayaan (yogyakarta: nr publishing, 2017), 345. 48 two members of grassroot organisation ranu welum foundation, “land rights of indigenous dayak peoples” interviewed by sumarni, palangka raya 20 october 2021. safeguarding indigenous rights and territories: integrating dayak ngaju wisdom in peatland ecosystem management sumarni, muhammad ery wijaya and astrid meilasari sugiana 132 lack of consultation and consent has had significant negative impacts on the affected communities, disrupting their livelihoods and causing environmental damage. the consequences were two-fold for the communities: not only did they suffer the loss of their lands without compensation, but they also witnessed the severe environmental damage caused by the ill-conceived project. 49 the implementation of fpic is essential to ensure that decisions made by the government respect the rights, interests, and well-being of local communities and enable more sustainable and inclusive development .50 the experience of facing discrimination in agrarian conflicts within pilang village heightened the indigenous peoples' awareness regarding the significance of obtaining formal recognition for their ancestral territories. in response, they have embarked on a determined struggle to secure official acknowledgment of their customary forest, which would grant them the autonomy to independently manage their ecosystem. in 2019, their long and arduous struggle began to yield positive outcomes with the issuance of a decree by the pulang pisau regent recognizing indigenous peoples. additionally, the ministry of environment and forestry issued a decree acknowledging their customary forest, as specified in minister of environment and forestry decree no. 5447/menlhk-pskl/pktha/kum.1/6/2019. 51 notably, the barasak island customary forest, covering 102 hectares and designated for protection, stands as central kalimantan's only customary forest established through a social forestry scheme. the swift issuance of the decree for barasak island, located within an area with a different designated use, sets it apart from customary forests in forested areas, which typically require recognition through regional regulations (peraturan daerah) as mandated by the law.52 2.3. customary forest: recognising indigenous dayak ngaju land management the recognition of customary forests in pilang village provides greater space for indigenous dayak peoples to use their traditional knowledge and wisdom in managing forests for the greatest prosperity of their people. this also promotes the utilization of time and space perspectives of the indigenous dayak people, while emphasizing handep collaboration and equal partnership among stakeholders. 49 indigenous dayak community and village official, loc.cit 50 stephanie baez, "the right redd framework: national laws that best protect indigenous rights in a global redd regime," fordham law review 80 (2011): 821. 51 see indigenous dayak mantir, loc.cit; minister of environment and forestry decree no. 5447/menlhk-pskl/pktha/kum.1/6/2019, art.1. 52 grassroot organisation ranu welum foundation, loc.cit. udayana journal of law and culture vol. 7 no. 2, july 2023 133 this framework centers around the concept of time and space as utilized by the indigenous dayak people. time refers to the understanding and respect for the temporal aspects of ecological processes and the intergenerational perspective. it recognizes that sustainable management of peatlands requires long-term thinking and planning, considering the needs and well-being of future generations. the indigenous dayak people's knowledge of the land passed down through generations, holds insights into the temporal dynamics of the ecosystem. space refers to the indigenous dayak people's intimate connection with the physical and cultural landscapes of the peatlands. it recognizes the significance of their traditional practices, cultural values, and customary land management systems. the framework promotes the preservation and revitalization of indigenous practices and institutions related to peatland management. by valuing their knowledge and expertise, the framework seeks to incorporate indigenous perspectives into decision-making processes.53 the framework also emphasizes handep collaboration and equal partnership among stakeholders. it recognizes that effective peatland management requires the active involvement and meaningful participation of indigenous communities, government agencies, non-governmental organizations, and other relevant stakeholders. handep refers to a custom practiced by the dayak people, where they come together to collectively clear agricultural land. 54 when one villager is clearing land, others join in to provide assistance, with relatives also contributing their labor as repayment for previously received services while working on their own fields. those who are unable to participate may feel a psychological and customary burden, as reciprocity is valued within the dayak community. this sense of obligation to help one another fosters a strong sense of community among the dayak people.55 by fostering handep collaboration, the framework aims to create a more inclusive and equitable approach to peatland management, where the voices and rights of indigenous dayak communities are valued and integrated into decision-making processes. this will also allow the community to run their initiative, such as making tree nurseries for native peatlands species that give them economic benefits or making bee keeping. to make this movement viable, it must be supported financially and technically by providing mentoring and tools. 53 see indigenous dayak mantir, loc.cit; indigenous dayak community and village official, loc.cit; and grassroot organisation ranu welum foundation, loc.cit. 54 muhammad husni, “kearifan lokal handep masyarakat dayak: perspektif cendekiawan muslim dayak di iain palangka raya,” rihalah jurnal sejarah dan kebudayaan 8, no. 2 (2020): 113-133. 55 indigenous dayak mantir, loc.cit. safeguarding indigenous rights and territories: integrating dayak ngaju wisdom in peatland ecosystem management sumarni, muhammad ery wijaya and astrid meilasari sugiana 134 the indigenous dayak ngaju people in pilang village have faced a challenging struggle to obtain recognition for their customary land, primarily due to the extensive documentation required and the reluctance of some local governments to acknowledge indigenous territories. the community was struggling to navigate the intricate legal processes required for recognition, including meeting various administrative requirements and complying with governmental regulations. limited access to legal support and information further compounds the difficulties faced by pilang community. the procedure of obtaining legal recognition for customary forests still follows the procedure required by the forestry law. to be able to manage the forest, indigenous communities should be recognized by district or provincial governments, as stated in article 67 of forestry law.56 if their territories fall within the administrative jurisdiction of a single district, recognition should come from the district government. for territories spanning across multiple districts, recognition must be obtained from the provincial government. however, the practical implementation of this provision often hampers the recognition of customary forests since many local governments are unwilling to acknowledge indigenous territories. this reluctance from local authorities constraints indigenous communities from gaining the legal recognition they need to govern their natural resources effectively.57 however, their efforts have been bolstered by the invaluable support and assistance of a third party, usaid-lestari. this external entity has played a crucial role in providing the necessary backing and resources to navigate the complex process of formal recognition. with the aid of usaidlestari, the indigenous community in pilang village has been able to overcome barriers and advance their cause, paving the way for the recognition and preservation of their ancestral lands.58 2.4 barriers in community-led peatland management indigenous communities may face various challenges in governing their natural resouses. the limited availability of resources to maintain and manage their natural resources might be the biggest barrier for them. for instance, in the case of pilang village, even after obtaining legal recognition of their customary forest, the community encountered difficulties in securing funding to support their initiatives. they faced challenges in 56 see safitri, loc.cit; and law no. 41 of 1999 concerning forestry, art. 67. 57 indigenous dayak community and village official, loc.cit. 58 see indigenous dayak mantir, loc.cit; and official of barasak customary forest. “community effort in obtaining legal recoignizion of barasak customary forest,” pilang village, interviewed by sumarni, 15 october, 2021. udayana journal of law and culture vol. 7 no. 2, july 2023 135 finding financial resources for essential infrastructure development, such as custom buildings, necessary for the development of ecotourism and generating economic benefits for the community. the lack of adequate resources can hinder communities from implementing sustainable practices and maximizing the potential of their natural resources. additionally, indigenous communities may also encounter knowledge and managerial challenges, which pose significant barriers to effective governance. the progress in government-led peatland restoration has been constrained primarily by socio-economic challenges faced by communities. 59 to achieve successful intervention, it is essential to comprehend community concerns and develop optimal short and mediumterm income solutions that facilitate the transition to sustainable income generation. 60 by addressing these socio-economic aspects, peatland restoration efforts can become more effective and inclusive, benefiting both the environment and local communities. however, historical marginalization and limited access to education and training opportunities have left some indigenous communities lacking the necessary knowledge and expertise. this knowledge gap inhibits their ability to manage their customary forests efficiently and fully benefit from them. addressing the barriers to community sovereignty in governing their natural resources and obtaining legal recognition of their customary forests necessitates collaborative efforts involving government agencies, civil society organizations, and the indigenous communities themselves. these efforts should focus on overcoming the challenges related to recognition by local governments, securing sufficient resources, bridging knowledge gaps, and simplifying the legal processes. by empowering indigenous communities and supporting their rights and stewardship over their ancestral lands and resources, a more inclusive and sustainable approach to natural resource governance can be achieved. 3. conclusion peatland serves as a valuable ecosystem for the indigenous dayak ngaju community. their adoption of a zonation system for peatland use, along with the integration of ecosystem management and cultural rituals into their farming practices, showcases their deep connection and harmonious relationship with nature. however, despite the laws in indonesia that recognize the rights of indigenous peoples and aim to 59 dyah puspitaloka et al, “analysis of challenges, costs, and governance alternative for peatland restoration in central kalimantan, indonesia,” trees for people 6, (2021): 100131. 60 benjamin john wiesner and paul dargusch, “the social license to restore— perspectives on community involvement in indonesian peatland restoration,” land 11 (2022): 1038. safeguarding indigenous rights and territories: integrating dayak ngaju wisdom in peatland ecosystem management sumarni, muhammad ery wijaya and astrid meilasari sugiana 136 safeguard their customary lands, the implementation and enforcement of these laws have demonstrated weaknesses and inconsistencies. furthermore, several programs and policies have failed to prioritize seeking the consent and opinions of the community, despite the evident impact on their traditional way of life. to address these issues, it is essential to urgently implement the principle of fpic and enhance the implementation and enforcement of legal protections. fpic ensures that decisions affecting indigenous communities are made in consultation with them, respecting their rights and interests. strengthening legal protections will further safeguard the rights and well-being of indigenous communities, providing them with the necessary legal mechanisms to protect their customary lands and maintain their traditional way of life. to bridge the gap between government policies and indigenous knowledge, it is important to foster a legal framework that recognizes and 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(2013). https://doi.org/10.1007/s11273-017-9544-0 https://doi.org/10.33258/lakhomi.v2i2.472 https://doi.org/10.33258/konfrontasi2.v8i4.173 https://doi.org/10.19184/csi.v2i1.28051 https://doi.org/10.3390/land11071038 https://doi.org/10.1016/j.catena.2007.07.010 https://doi.org/10.9790/2402-08314047 safeguarding indigenous rights and territories: integrating dayak ngaju wisdom in peatland ecosystem management sumarni, muhammad ery wijaya and astrid meilasari sugiana 140 kelsall, michelle staggs, roichatul aswidah, and randy wirasta nandyatama. “beyond commodication, toward job creation: indonesia at a crossroads.” (jakarta: sasakawa peace foundation, 2021). interview five indigenous dayak elders from pilang and tumbang nusa villages, “indigenous dayak wisdom in peatland management” interviewed by sumarni, central kalimantan, 2-10 october 2021. indigenous dayak mantir from pilang villages, “indigenous dayak farming” interviewed by sumarni, central kalimantan, 8 october 2021. six indigenous dayak community and village official from pilang and tumbang nusa villages, “peatland use and land change in pilang and tumbang nusa village” interviewed by sumarni, central kalimantan, 14-20 september 2021. two members of grassroot organisation ranu welum foundation, “land rights of indigenous dayak peoples” interviewed by sumarni, palangka raya, 20 october 2021. official of barasak customary forest. “community effort in obtaining legal recognition of barasak customary forest.” pilang village, interviewed by sumarni, 15 october 2021. case law constitutional court of the republic of indonesia. decision no. 35/puux/2012. website content dewan adat dayak barito utara. “hukum adat.” https://www.dadbaritoutara.com/hukum-adat mongabay. “new indonesian law may make it harder to punish firma for haze-causing fires.” https://news.ger.com/2020/10/newindonesian-law-may-make-it-harder-to-punish-firms-for-hazecausing-fires/ https://www.dadbaritoutara.com/hukum-adat https://news.ger.com/2020/10/new-indonesian-law-may-make-it-harder-to-punish-firms-for-haze-causing-fires/ https://news.ger.com/2020/10/new-indonesian-law-may-make-it-harder-to-punish-firms-for-haze-causing-fires/ https://news.ger.com/2020/10/new-indonesian-law-may-make-it-harder-to-punish-firms-for-haze-causing-fires/ e-issn 2549-0680 vol. 7, no. 2, july 2023, pp. 144-164 144 legal issues pertaining to high altitude platform station implementation in indonesia as an archipelagic state yaries mahardika putro1, ridha aditya nugraha2, taufik rachmat nugraha3, rio christiawan4, aldhanti bodhihanna5, jason pratama ong6, muhammad revaldi testarosa7 1 faculty of law universitas surabaya, surabaya, indonesia 2 air and space law studies universitas prasetiya mulya, tangerang, indonesia 3 national university of singapore, singapore 4 faculty of law universitas 17 agustus 1945 jakarta, jakarta, indonesia 5, 6, 7 international business law program universitas prasetiya mulya, tangerang, indonesia keywords abstract high-altitude platform station (haps); national security; personal data protection; sovereignty. information is a necessity for the interests of government, the economy, social culture, as well as defense and security in the era of industrial revolution 4.0. since 1976, the indonesian government has been working on developing a satellite communication system starting with the palapa a1 satellite, followed by its subsequent generations. however, this system has limitations, particularly in providing coverage to rural areas in indonesia. to address this issue, the government has started the procurement of the wahana dirgantara super or high-altitude platform station (haps) in indonesia. haps are stations positioned at altitudes of 20 to 50 km above the earth's surface. given indonesia's geographical location, haps is seen as the most suitable solution as it utilizes non-ground terrestrial technology to improve information and communication technology coverage in rural areas. however, the location on which the haps is positioned might trigger new issues, particularly with regard to state sovereignty and disruption of flight traffic. the operation of haps also needs further consideration so that the protection of personal data in indonesia will not be disrupted. this article employs normative juridical research as a methodology. the research collected and analyzed primary sources in the form of law, regulation, and policy at the national and regional levels, as well as secondary sources that are available in textbooks, journal articles, and website content. this article aims to explain the development of haps regulations based on international law and national law and to examine the legal issues related to the procurement of haps in indonesia . at the end, this article suggests that it is necessary to regulate haps in indonesia with reference to aviation safety, security, and liability issues as well as maintaining state sovereignty and ensuring personal data protection. doi https://doi.org/10.24843/ujlc.2023 .v07.i02.p06 author e-mail 1 yariesmp@staff.ubaya.ac.id 2 correspondence: ridha.nugraha@prasetiyamulya.ac.id 3 trn93@nus.edu.sg 4 rio.christiawan@uta45jakarta.ac.id 5 aldhanti.bodhihanna@student.pmsbe.ac.id 6 jason.ong@student.pmsbe.ac.id 7 muhammad.testarossa@student.pmsbe.ac.id this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licenses/by/4.0/) https://doi.org/10.24843/ujlc.2023.v07.i02.p06 https://doi.org/10.24843/ujlc.2023.v07.i02.p06 mailto:yariesmp@staff.ubaya.ac.id mailto:ridha.nugraha@prasetiyamulya.ac.id mailto:trn93@nus.edu.sg mailto:rio.christiawan@uta45jakarta.ac.id mailto:aldhanti.bodhihanna@student.pmsbe.ac.id mailto:jason.ong@student.pmsbe.ac.id mailto:muhammad.testarossa@student.pmsbe.ac.id http://creativecommons.org/licenses/by/4.0/ legal issues pertaining to high altitude platform station implementation in indonesia as an archipelagic state yaries mahardika putro et al 145 1. introduction indonesia is a country with abundant natural resources but classified as a middle-income country on the basis of the world bank classification.1 the country's ability to follow developments in information and communication technology has an impact on the country's position in the globalization era. indonesia needs to stay updated on the latest news to broaden the understanding on how to process its natural resources according to the demands of the international trade market in the globalization era. as an archipelago, indonesia’s geographical state is one of the major concerns in the development of communications infrastructure therein. in 1976, the government of indonesia tried to overcome the limitations of communication infrastructure in indonesia by launching the palapa a1 satellite communication system, followed by another generation of satellites. over time, the government of indonesia started to develop a communication infrastructure through the planning of the national broadband plan. in 2014, indonesia issued the presidential decree no. 96 of 2014 on the indonesian broadband plan 2014-2019. article 1 of the presidential decree no. 96 of 2014 explains that the broadband was defined as internet access with guaranteed perpetual connectivity, guaranteed information security and a triple-play capability with a minimum speed of 2mbps for fixed access and 1mbps for mobile access. broadband was targeted to provide fixed access in urban areas for up to 71% of the households (20mbps) and 30% of the population. meanwhile, the target for rural areas was 49% of households (10mbps) and 6% of the population, mobile access was 52% of the population (1mbps).2 according to the indonesian telematics society or masyarakat telematika indonesia (mastel) and the indonesian telecommunication regulatory board or badan regulasi telekomunikasi indonesia (brti), providing connectivity services in rural areas proved to be challenging for the telecommunications industry because the rural topography in indonesia were very diverse —there were highlands, hills and mountains.3 this type of topography must use the open base tranceiver station (bts) technology or high-altitude platform station (haps) in order to reach the entire area. based on the international telecommunications union (itu), haps operates at an altitude of 20-50 km from the surface of the earth.4 the main advantage of haps is the free placement, the low operating costs, the low spread delay, the wide angle, the wide range of activated elevations which 1 neil fantom and umar serajuddin, “the world bank’s classification of countries by income,” https://documents1.worldbank.org/curated/en/408581467988942234/pdf/wps7528.pdf 2 presidential regulation no. 96 of 2014 concerning indonesia broadband plan 2014-2019, annex, 96. 3 sigit haryadi, “ikhtisar organisasi regulasi telekomunikasi,” preprint (ina-rxiv, february 28, 2018). 4 steve chukwuebuka arum, david grace, and paul daniel mitchell, “a review of wireless communication using high-altitude platforms for extended coverage and capacity,” computer communications 157 (2020): 232-56. https://documents1.worldbank.org/curated/en/408581467988942234/pdf/wps7528.pdf udayana journal of law and culture vol. 7 no. 2, july 2023 146 can be used for broadband, broadcast, even in the event of a disaster. 5 however, haps has shortcomings in terms of vehicle monitoring, balloon technology, which still requires further development, as well as on-board stabilization of the antenna, which is not good yet. in addition, even though haps operates at an altitude of 20-50 km or below the outer space, its characteristic differ from aircraft. therefore, it is necessary to examine the applicable law in the operation of haps. subsequently, the operation of haps might also potentially affect, among others, state sovereignty, flight traffic, and personal data protection. it needs to be highlighted haps operates at the strasopheric layer and a third party is involved in establishing its technology and operation, which is conducted within indonesia’s sovereign territory. the project loon test flight in india 6 raised significant concern on sovereignty issue, it might be a lesson learned for indonesian government to ensure that the haps operation will not endanger indonesian sovereignty. furthermore, the indonesian government also must be ensured that haps operations do not interfere with other activities in the indonesian airspace, such as flight traffic and it must also ensure that the haps operation does not interfere with the protection of personal data in indonesia. stipulating areas that are prohibited for haps could be a solution to ensure flight safety and privacy issue. china, french and us had enacted haps prohibited areas to address threats of privacy and flight safety concerns of haps.7 certainly, a number of previous studies have been conducted on the subject of haps. zhou (2020) 8 has discussed the development and regulatory aspects of haps in his writing. according to the results of his research, many private companies are currently developing haps technology in order to provide internet access to all regions, especially those that are not covered by terrestrial ground-based systems. in order to provide a legal framework for the operation of haps, the itu has also issued haps-related regulations. to ensure legal certainty in the use of haps, however, there is still a need for implementing rules in each nation. in addition to zhuo's research, budiyanto, jamil, and rahayu (2019) 9 conducted a feasibility study of the loon project in indonesia. they attempted to apply the swot analysis to the loon project in indonesia. in terms of regulation, the provisions for haps have been established based on the itu's radio 5 gunes karabulut kurt et al, “a vision and framework for the high altitude platform station (haps) networks of the future,” ieee communications surveys & tutorials 23, no. 2 (2021): 729-79. 6 diah yuniarti, “regulatory challenges of broadband communication services from high altitude platforms (haps),” in 2018 international conference on information and communications technology (icoiact) (2018 international conference on information and communications technology (icoiact), yogyakarta: ieee, 2018), 919-22. 7 ibid. 8 dong zhou et al, “overview of development and regulatory aspects of high altitude platform system,” intelligent and converged networks 1, no. 1 (2020): 58-78. 9 setiyo budiyanto, muhammad jamil, and fajar rahayu, “feasibility analysis of the application of project loon as an equitable effort for communication infrastructure development in indonesia,” jurnal telekomunikasi dan komputer 9, no. 2 (2019): 61. legal issues pertaining to high altitude platform station implementation in indonesia as an archipelagic state yaries mahardika putro et al 147 regulation, but there is concern about potential interference with neighboring countries if the project is implemented in indonesia. furthermore, damayanti and supriadhie (2017),10 yuniarti (2018)11 and john (2015) 12 conducted a legal study on haps. both damayanti and supriadhie and yuniarti explained that the operation of haps on the territory of the republic of indonesia must take security and national sovereignty into account. the foreign ownership of haps necessitates a thorough examination of licensing and supervision issues to prevent their misuse for harmful purposes and to protect indonesia's security and sovereignty. yuniarti also suggested to classify an unmanned free balloon based on high-altitude platform station (haps) technology as a uav (unmanned aerial vehicle). haps should adhere to the regulations imposed on uavs in many countries, which encompass aspects of privacy and safety. specific considerations such as weight and altitude may be added. additionally, the proposed law aims to enhance security provisions. john explains that flying dozens of haps in airspace over different sovereign nations or even us can raise many legal questions. while these vehicles providing internet access do not revolve around the earth like conventional satellites, they do operate at high altitudes in the sky. they emit radio waves, and when multiple vehicles are in operation, they may consume significant portions of the radio spectrum.13 additionally, certain haps may opt to use unregulated infrared light for communication, rather than relying on radio spectrum. therefore, it is necessary for the us and other countries to establish or update their respective rules to properly govern these new internet-providing haps. however, among all these studies, there has been no research focusing specifically on the legal obstacles and consequences of implementing haps in indonesia. the author attempts to demonstrate that, if not properly prepared and operated, haps threatens not only the sovereignty and security of indonesia, but also flight safety and personal data protection. in light of the paucity of prior research in this area, the author considers this to be the article's original contribution. this study employs normative juridical research, in which law is conceptualized as what is written in laws and regulations (law in books) or law is conceptualized as rules or norms, which are standards for acceptable human behavior. 14 this research examines the implementation of the indonesian legal framework pertaining to national security, flight safety, sovereignty, as well as data protection for haps procurement plan in indonesia. 10 cholifah damayanti and anjar supriadhie, “legal implication of placing the google balloon in national air space,” jurnal dinamika hukum 16, no. 3 (2017): 325-31. 11 yuniarti, loc.cit. 12 george v. john, “welcome to the space jam: how united states regulators should govern google and facebook new internet providing high altitude platforms,” american university business law review 4, no. 3 (2015): 471-503. 13 ibid. 14 agus budianto, “legal research methodology reposition in research on social science,” international journal of criminology and sociology 9 (2022): 1339-46. udayana journal of law and culture vol. 7 no. 2, july 2023 148 2. result and analysis 2.1. high altitude platform station (haps) 2.1.1. the characteristics of haps many developing countries struggle with managing its telecommunication infrastructures especially in rural areas, which later affect the economy and social developments. 15 until the present time, terrestrial ground-based systems and satellite systems are still the most reliable and well-established mobile communications services. they tend to be low-cost, have short propagation delays, and provide good scalability of system capacity.16 however, due to their vast distance from the earth, the low level of penetration of satellite-based communication is seen as a disadvantage.17 therefore, people are looking for innovative ways to develop a more modern and sufficient telecommunication infrastructure that could permeate rural areas, i.e., via haps.18 since the 1960s, the us had been exploring the idea of having a lowcost alternative satellite.19 a concept for developing a stratospheric platform was discovered, however it was difficult to realise since airborne platforms were considered flimsy against the wind. fortunately, several years later along with the advancement in technology, the realisation of haps seemed to become more achievable.20 the term haps was first established in the world radio communication conference 1997 (wrc-97) that was organized by the itu which defined haps as ‘an aircraft positioned above 20-50 km altitude, in the stratosphere at a specified, nominal, fixed point relative to the earth, in order to compose a telecommunication network or perform remote sensing for both civilian or military applications.’ 21 in other words, haps is a technology located on the stratospheric area with a specified, nominal, fixed 15 eddy setiawan, “the potential use of high altitude platform station in rural telecommunication infrastructure,” indonesia-itu concern forum (iicf) (2018): 35-37. 16 anggoro k. widiawan and rahim tafazolli, “high altitude platform station (haps): a review of new infrastructure development for future wireless communication,” wireless personal communications 42, (2007): 387. 17 yaries mahardika putro and ridha aditya nugraha, “space economy is the future, but how to realize it?,” https://www.thejakartapost.com/opinion/2023/03/16/spaceeconomy-is-the-future-but-can-indonesia-realize-it.html 18 abbas mohammed et al, “the role of high altitude platforms (haps) in the global wireless connectivity,” proceedings of the ieee 99, no. 11 (2011): 1945. 19 kunsel izet-unsalan and deniz unsalan, “a low cost alternative for satellites tethered ultra-high altitude balloons,” in proceedings of 5th international conference on recent advances in space technologies rast2011 (2011 5th international conference on recent advances in space technologies (rast), istanbul, turkey: ieee, 2011), 13-16. 20 anthony euler, surjit badesha, and larry schroeder, “very high altitude tethered balloon feasibility study,” in 11th lighter-than-air systems technology conference (11th lighter-than-air systems technology conference, clearwater beach,fl,u.s.a.: american institute of aeronautics and astronautics, 1995). 21 radio regulation (rr) 1.66 a itu (itu, 2012), high altitude platforms (haps). https://www.thejakartapost.com/opinion/2023/03/16/space-economy-is-the-future-but-can-indonesia-realize-it.html https://www.thejakartapost.com/opinion/2023/03/16/space-economy-is-the-future-but-can-indonesia-realize-it.html legal issues pertaining to high altitude platform station implementation in indonesia as an archipelagic state yaries mahardika putro et al 149 point relative to the earth with a specific radio spectrum allocations based on the latest itu wrc-19 in 2019 as listed on the table below. table 1. haps spectrum allocation wrc-19 frequency band bandwith coverage 2 ghz 145mhz-170mhz (x2) r1,22 r2,23 r324 6 ghz 80 mhz (x2) r1, r3 21.4-22 ghz 600 mhz r2 24.25-27.5 ghz 3250 mhz r2 27.9-28.2 ghz 300 mhz (x2) r1, r3 31 ghz 300 mhz r2 39-39.5 ghz 1500 mhz worldwide 47/48 ghz 300 mhz worldwide source: widiawan and tafazolli, 2007.25 haps utilization is in accordance with radio-frequency spectrum regulation governed by itu-radiocommunication. as seen in table 1, each frequency is able to cover a broad area. ergo, a single haps implementation could replace a large number of terrestrial base station. 26 although the current satellite technology is also a well established communication infrastructure, haps has a feature that neither terrestrial ground based system nor satellite system has, which is its free space like path loss characteristic.27 meaning, a 22-km-above-the-ground-haps has a path loss comparable to a terrestrial ground-based cell in 2 km radius.28 a haps communication system consists of the air vehicle or the platform and the onboard communications payload which are completed by phased array antennas, transmit antennas, and a large processor that handles receiving, multiplexing, switching, and transmitting functions. 29 the key to the high performance of haps lies in the antenna subsystem. it will later channel cells from haps onto the ground in a cellular pattern which makes the communication system sensitive to interference. to avoid such matter, it is necessary to utilize high performance antennas and implement the assigned radio frequency by itu-r. however, these are still 22 itu region 1 which includes europe and africa. 23 itu region 2 which includes americas, indonesia, pakistan, japan, vietnam, iran, thailand, burman, north korea, sri lanka, mongolia, bhutan, maldives, russia, phillipines, south korea, uzbekistan, malaysia, kazakhstan, kyrgyztan, and lesotho. 24 itu region 3 which includes asia-pacific and australia. 25 widiawan and tafazolli, loc.cit. 26 ibid. 27 ibid., 389. 28 ibid. 29 kurt et al, op.cit., 732. udayana journal of law and culture vol. 7 no. 2, july 2023 150 merely conceptual. further development and trials are required to receive the best outcome. moreover, haps itself has different utilization depending on the circumstances of how it is being used. there are three different haps configurations, from the simplest; that is standalone haps network; a far more advanced one integrated terrestrial haps satellite heterogeneous networks; and the most complicated one the constellation of multiple interconnected haps. the standalone haps network is by far the simplest and most commonly used haps configuration.30 the main advantage of this haps configuration is the convenience that it provides for network providers, whereby users of the network are directly connected to the haps itself, therefore it is mainly used during disaster relief missions that are caused by natural disasters. the integrated terrestrial haps heterogeneous network on the other hand is a mixed haps system that works uniquely within the haps itself, the satellite and a terrestrial system. this way, there will be a link between and throughout the three main components of this system. with its unique operating characteristics, this system will be able to serve the purpose of providing adequate high-speed network services in an area whereby radio transmissions are obstructed due to the presence of a physical object like tall skyscrapers or even mountains and valleys. lastly, the constellation of multiple interconnected haps system is designed to make it visible that several haps are covering a common regional area, in which these haps may or may not overlap one another. currently, there are several developments of the haps platform happening all throughout the world such as airbus-zephyr, nasa-barrel, titan aerospace, facebook-aquila, and one of the most well known haps projects the google-project loon (loon). the loon project has been conducted in several countries including indonesia. google’s mission was to deliver internet to rural areas through stratospheric balloon platform. the trial was conducted in 2013 for a one year collaboration with three largest telecommunications operators in indonesia, namely telkomsel, xl axiata, and indosat ooredoo.31 unfortunately, loon is yet to be implemented since it is considered as a new technology. thorough study from various aspects needs to be conducted for it to be able to fly in indonesian airspace. 30 zhou et al, op.cit., 59. 30 ibid. 31 diah yuniarti and hilarion hamjen, “status dan perkembangan proyek loon terkini,” buletin pos dan telekomunikasi 15, no. 1 (2017): 15. legal issues pertaining to high altitude platform station implementation in indonesia as an archipelagic state yaries mahardika putro et al 151 2.2. haps and conventional satellite (terrestrial or satellite) itu’s definition of haps clearly differentiates haps from any other terrestrial ground and satellite systems. apart from being located in the stratospheric area, it also has other characteristics as shown in the table below. table 2. comparing haps to terrestrial and satellite subject haps terrestrial satellite cell radius 3-7 km 0.1-2 km 50 km base station (bs) coverage area radius 30 km 5 km a few hundred km elevation angles high low high propagation delay low low noticeable bs power supply solar electricity solar bs maintenance less complex in terms of coverage area complex impossible bs cost economical medium (considering bs) high operational cost medium (airship maintenance) medium (considering bs) high deployment complexity low medium high source: gultom and yuniarti, 2016. in a matter of hours, haps can be quickly deployed into the sky and begin their missions. when applied to a scenario involving a disaster or an emergency, this clearly constitutes an advantage. the capacity for growth of the system is an important factor. terrestrial networks call for the installation of a significant quantity of hardware in order to provide the desired level of coverage. the establishment of a network for mobile telephones can take several years. satellite-based networks are limited by their existing capacity because the cost of adding more capacity and the availability of new satellites and launch systems to place them in orbit are both limiting factors. theoretically, it is possible to achieve rapid deployment of hap networks as well as capacity expansion.32 the extent of the network's geographic coverage is determined by a number of factors, including terrain, antenna height, and power. because of antenna height, signal attenuation, and terrestrial networks can only cover a radius of a few kilometers around each base station. satellite networks have the potential to reach every part of the earth; however, this will require 32 eric c. cook, “broad area wireless networking via high altitude platforms,” (master’s thesis, naval postgraduate school, 2013), 45. udayana journal of law and culture vol. 7 no. 2, july 2023 152 a constellation of satellites.33 twenty to forty satellites orbiting the earth at an altitude of 500-1.500 km each make up a constellation known as low earth orbit (leo). a network in medium earth orbit (meo) typically consists of 8 to 20 satellites and is located at an altitude of 5,000-12,000 km. while a single geostationary satellite (geo) can cover 34% of the earth's surface from its position at an altitude of approximately 36.000 km.34 2.3. haps utilizations several countries have been developing haps into a reliable technology. for instance, the us created skystation, high altitude long operations (halo), skytower, and stratellite. in asia-pacific, japan came up with skynet. furthermore, south korea, through its korea aerospace research institute (kari), is currently working on a stratospheric airship. in this section, the author examines the development of haps utilizations in several countries, including the us, japan and south korea. a. the united states of america in 1978, the us navy proposed for an airship with the following characteristics: solar powered, fuel cell for energy storage, and supported by propeller.35 these requests are similar with what haps are now. a few years later, another haps related project, hi-spot programme, was initiated but it was ineffective due to its need to be frequently refuelled and returned to the ground.36 thus, it remained a mere theory. around 20 years later, a group of physicists formed sky station inc. and managed to create various revolutionary haps projects.37 the us started with sky station as their first haps which is able to provide internet for approximately 37 km from the platform to urban area coverage (uac) and 78 km from uac to suburban area coverage (sac).38 then halo appeared with a more developed technology. it has the coverage area of 4.800 km2.39 compared to sky station, halo shows a significant improvement in technology. it seems more likely for haps to be utilized in the near future. 33 alejandro aragon-zavala et al. high-altitude platforms for wireless communications (canada: john wiley & sons, 2018), 115. 34 yaries putro, ridha nugraha, and taufik nugraha, “geostationary orbit slot reconceptualization in accommodating the south,” indonesian journal of international law 19, no. 3 (2022): 373-98. 35 yuanming xu et al, “improvement of endurance performance for high-altitude solar-powered airships: a review,” acta astronautica 167 (2020): 245-59. 36 w.l. marcy and r.o. hookway, “propulsion options for the hi spot long endurance drone airship,” final report (philadelphia: naval air development center, september 15, 1979). p.6. 37 yee-chun lee and huanchun ye, “sky station stratospheric telecommunications system, a high speed low latency switched wireless network,” in 17th aiaa international communications satellite systems conference and exhibit (17th aiaa international communications satellite systems conference and exhibit, yokohama, japan: american institute of aeronautics and astronautics, 1998), 25-32. 38 widiawan and tafazolli, op. cit., 387. 39 ibid., 401. legal issues pertaining to high altitude platform station implementation in indonesia as an archipelagic state yaries mahardika putro et al 153 later on, a more efficient technology has emerged, known as helios. it is a solar-powered airship that can float for up to six months or more in the stratosphere. 40 through this haps, fixed wireless broadband total throughput is projected for around 5-15 gbps per platform with user speeds exceeding 50 mbps. sky tower made partnership with japan company and successfully provided hdtv service with less power than a 3g videophone.41 aside from sky station inc., sans wire networks, lcc usa attempted to develop a haps called stratellite.42 the system covers approximately 21 km2 of area and support 3g/4g mobile communications, fixed wireless communications, hdtv, etc. moreover, another us company, space data corp. came up with weather balloon-based haps to connect rural areas with telecommunications services. in the present time, the system provides 24/7 two-way data communications in texas, oklahoma, louisiana, new mexico, arkansas, and the gulf of mexico.43 b. japan the science and technology agency (sta) under the japanese ministry of posts and telecommunications (mpt) led a national project to develop a balloon-based stratospheric platform (spf). its objective is to provide communications, broadcasting, and environmental observation. each spf is able to cover an area up to 100 km. the users, whether located in the metropolitan area, suburb, or rural area, has the opportunity to receive up to 100 mbps data rate in the downlink and a maximum 6 mbps in the uplink.44 c. south korea starting on december 2000, kari has started a 10-year program to develop a stratospheric airship for telecommunication relays and ground observation. 45 this project is supported by the korean ministry of commeerce, industry and energy (mocie). in october 2003, the via 50 flew for the first time. although there were some minor problems along the way, an improvement was found in its autopilot capabilities.46 thus, it shows a promising future of haps technology development for south korea. 2.4. recent developments of legal framework on haps haps technology improvements, as explained in section 2.2. are seen to be promising to be used in the future and could be the answer for states 40 xiongfeng zhu, zheng guo, and zhongxi hou, “solar-powered airplanes: a historical perspective and future challenges,” progress in aerospace sciences 71 (2014): 36-53. 41 ibid. 42 widiawan and tafazolli, op. cit., 387. 43 ibid. 44 y. hase, r. miura and s. ohmori, “a novel broadband all-wireless access using stratospheric platforms”, proceeding of vtc, (1998): 1191. 45 yung gyo lee, dong-min kim, and chan-hong yeom, “development of korean high altitude platform systems,” international journal of wireless information networks 13, no. 1 (2006): 33. 46 ibid. udayana journal of law and culture vol. 7 no. 2, july 2023 154 with remote locations, which currently do not have a capable enough telecommunication infrastructure. certainly, the usage of haps needs to be accompanied with governing laws. however, there are dilemmas when talking about governing haps, due to the fact that haps is an airship and is able to fly, but it does not move anywhere. it is located neither on the airspace nor it is in the outer space, but the stratosphere. there is no established international legal principle that specifically determines the boundary between airspace and outer space.47 however, certain individuals propose using the von karman line, which is located around 100 km above the earth's surface, as a reference point to distinguish between airspace and outer space.48 meanwhile, the existence of haps challenges lawmakers to resolve the grey area to ensure haps legal certainty. both air law and space law will determine how states deal with issues related to haps, such as its safety, security, and liability challenges. article 1 of the convention on civil aviation of 1944 (widely known as the chicago convention) recognizes the complete and exclusive sovereignty of each state over the airspace above its territory.49 even though international space law did not recognize state covereignty, it is far more stringent than international air law, since space activities are riskier. 50 considering the absence of jurisdiction in outer space, space law relies on states to be responsible and liable for any damage done by a space object on the earth’s surface or to an aircraft in flight.51 thus, the countermeasures related to haps depended on which law is suitable. haps is a station that floats in a fixated point above the earth. despite its ability to float in the sky, haps does not exactly conform with the definition of aircraft stated in the annecx 7 of the chicago convention, which is defined as “any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth's surface.” 52 under this definition, haps is only considered as an aircraft during its descent phase but not on the ascent phase of its flight. its static motion and placement at only a certain ordinate are exceptions of haps as an aircraft. 53 thus, it could not be subject to the chicago 47 zhu, guo, and hou, op.cit. 48 dean n reinhardt, “the vertical limit of state sovereignty,” journal of air law and commerce 72, no. 1 (2007): 65-137. 49 peter haanappel. “aerial sovereignty: from paris 1919, through chicago 1944, to today”, in behind and beyond the chicago convention the evolution aerial sovereignty, ed. pablo mendes de leon and niall buissing (netherland: kluwer law international, 2019), 25. 50 ibid., 3. 51 article 7 of the treaty on principles governing the activities of states in the exploration and use of outer space, including the moon and other celestial bodies. 18 u.s.t. 2410 610 u.n.t.s. 205, 61 i.l.m. 386 (1967) states: “each state party to the treaty that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each state party from whose territory or facility an object is launched, is internationally liable for damage to another state party to the treaty or to its natural or juridical persons by such object or its component parts on the earth, in air space or in outer space, including the moon and other celestial bodies.” 52 chicago convention, annex 7. 53 damanyati and supriadhie, op.cit. 327. legal issues pertaining to high altitude platform station implementation in indonesia as an archipelagic state yaries mahardika putro et al 155 convention. it is also inadequate for haps to be subject to the international regulations governing outer space activities done by government or nongovernment entities also known as the outer space treaty of 1967 since haps is only located in the stratospheric area. evidently, it is not enough to determine which law is applicable to haps by mere definition due to its mixed nature. the current technology allows the concorde (the highest-flying commercial aircraft) to fly at 18 km altitude. in the near future, it is not impossible for aircraft to have higher cruising altitudes and operate in the stratospheric area considering the rapid development of technology. thus, the boundary of airspace will remain higher and air law will still prevail parallel to the increasing limit.54 on that matter, the air law should be considered as the underlying provision for haps, also considering the fact that its altitude is closer to the earth and not in-orbit but equipped with adjustments regarding space safety especially its components along with some specific systems such as environmental control, controllability, and manoeuvrability. 55 besides, designating haps as an unmanned aircraft allows the government to reduce regulatory uncertainty through in-air authority.56 when haps malfunctions and causes accidents, countries have the right to monitor all activities carried out in spaces above their territory so that they do not pose a threat to the security of their country. 57 however, not many countries have regulated haps specifically into their national legislation. the us regulates aviation law through the federal aviation administration act of 1958. within the regulation, an aircraft is defined as a device that is used or intended to be used for flight in the air. 58 the national aeronautics and space act regards a space object as ‘aeronautical and space vehicles’ which is defined as aircraft, missiles, satellites, and other space vehicles, manned and unmanned, together with related equipment, devices, components, and parts.59 japan’s regulation on aviation law can be found in the civil aeronautics act in which an aircraft is described as any aeroplane, rotorcraft, glider and airship which can be used for air navigation with a person on board and any other apparatus used for air navigation as may be specified by cabinet order.60 the definition of aircraft in the south korean aviation act is airplanes, airships, gliders, rotorcraft, and other apparatus 54 reinhardt, op.cit, 67. 55 annelie schoenmaker, “certification and safety aspects relating to the transport of passengers on high altitude balloons in europe,” acta astronautica 100 (2014): 4. 56 john, op.cit., 480. 57 ruman sudradjat, “ruang angkasa dan pengaturan hukumnya,” warta lapan, no. 3 (1984): 56. 58 title 14: aeronautics and space chapter 1 subchapter a part 1, para1. “aircraft means a device that is used or intended to be used for flight in the air. 59 u.s. code on national aeronautics and space act 20103, art.1 51 definitions. 60 transport and tourism, ministry of land, infrastructure, “civil aeronautics act english japanese law translation,” civil aeronautics act, https://www.japaneselawtranslation.go.jp/en/laws/view/4039/en https://www.japaneselawtranslation.go.jp/en/laws/view/4039/en udayana journal of law and culture vol. 7 no. 2, july 2023 156 to be used for aviation, prescribed by presidential decree. 61 under the space development promotion act, a space object means an object designed and manufactured for use in outer space, including space launch vehicles, artificial satellites, spaceships, and parts thereof.62 it can be concluded that haps does not fit in any definition, therefore those regulations do not apply for haps, except for the us definition as it includes manned and unmanned, aircraft or satellite so it could be included under such us definition. haps is still under development thus there is no urgency to do any changes until the us-china balloon incident in early 2023.63 however, regulatory preparation for haps is imperative so when it is ready, the regulations do not fall behind, keeping in mind how fast technology advances these days. 2.5. the legal issues pertaining to implementation of haps in indonesia the provisions related to haps in indonesia, indeed, should be able to accommodate the nature of haps itself. on one hand, haps operated as floating airplanes for a limited period of time while simultaneously have satellite-like capabilities.64 it is therefore necessary for indonesia to take a sensible approach to determine the applicable regime of law for haps. without thorough monitoring, national security could be threatened through haps hijacking, or harmful interference through radio frequency. haps’ ability to provide internet for people in rural and remote areas suggests the involvement of the radio spectrum in its operation. aside from assigning a specific frequency to haps in accordance with itu radio regulation, the indonesian government should also be aware of the security threat emanated from haps utilization. moreover, liability issues concerning accidents caused by haps should also be taken into account. ergo, the safety, security, and liability issues on haps will be discussed. a. safety issue loon’s project in indonesia is cancelled due to several considerations, such as the national security and aviation safety that still requires further research.65 furthermore, the loon trajectory could potentially be a threat to the indonesian sovereignty. 66 it should be highlighted that the establishment of haps technology in indonesia has the aim of ensuring 61 anggoro k. widiawan and rahim tafazolli, “high altitude platform station (haps): a review of new infrastructure development for future wireless communications,” wireless personal communications 42, no. 3 (2007): 387-404. 62 ibid. 63 ridha aditya nugraha and taufik rachmat nugraha, “chinese balloon row: time to determine vertical delimitation in asean,” the jakarta post, https://www.thejakartapost.com/opinion/2023/02/14/chinese-balloon-row-time-todetermine-vertical-delimitation-in-asean.html 64 john, op. cit., 478. 65 budiyanto, jamil, and rahayu, loc.cit. 66 ridha aditya nugraha, konrardus elias liat tedemaking, and vicia sacharissa, “penguatan kedaulatan negara di udara dan urgensi sinkronisasi hukum,” kertha patrika 43, no. 1 (2021): 65. https://www.thejakartapost.com/opinion/2023/02/14/chinese-balloon-row-time-to-determine-vertical-delimitation-in-asean.html https://www.thejakartapost.com/opinion/2023/02/14/chinese-balloon-row-time-to-determine-vertical-delimitation-in-asean.html legal issues pertaining to high altitude platform station implementation in indonesia as an archipelagic state yaries mahardika putro et al 157 telecommunication systems penetration into rural areas while still upholding sovereignty in national airspace.67 the elucidation of indonesian space act of 2013 mentiones that outer space starts from 100-110 km above the earth’s surface.68 hence it is safe to postulate that the presence of haps in the stratosphere will intersect with sovereignty. furthermore, when specifically discussing google loon, indonesia regulates it under the ministry of transportation regulation civil aviation safety regulation no. 9 of 2009 section 101 on moored hot air balloons, kites, unmanned rockets, and unmanned free balloons, sub part d-unmanned free balloons. the classification of loon as part of unmanned free balloon was ordered by the secretary general of the international civil aviation organization (icao) through a warrant.69 on the other hand, by taking into account its working principle, the loon can also be classified as an unmanned aircraft. this is because in the early unmanned aircraft systems (uas) standards, unmanned free balloons were excluded from the uncontrollable aircraft based on actual time category. although, in reality, loon can be controlled through the ground handle. the federal aviation administration (faa) is of the opinion that unmanned aircraft are operated without the possibility of direct human intervention either on board or from the outside. in other words, loons can be classified as an unmanned aircraft. therefore, if loon is regulated under the annex of ministry of transportation regulation no. 180 of 2015, unmanned aircraft, such as loons itself, may not be operated in the airspace at an altitude of more than 150 m above the surface. the vague classification of loons resulted in the failure of the implementation of the technology. even though haps operates above 20 up to 50 km above sea level, where commercial aircraft can only fly up to 18 im, it is important to remember that mig-25 and mig-29 aircraft can fly up to 23 km above sea level.70 considering that aviation technology has reached the stratosphere, the operation of haps at certain altitudes poses a threat to flight safety.71 the operation of haps requires coordination with air navigation service providers to ensure flight safety and operation. this coordination is not only with civil air navigation service providers, but also with the military. the indonesian air force must also be involved in the process of exploring cooperation in the operation of haps in indonesia, bearing in mind that haps utilization in indonesian airspace will have significant implications on sovereignty. it is in line with the duty if the indonesian air force which mandated in article 10 of law no. 34 of 2004 concerning indonesian national army. despite the fact that the operation of haps in indonesia is carried out based on an agreement between the two parties, it is 67 budiyanto, jamil, and rahayu, loc.cit. 68 mardianis. hukum antariksa (jakarta: rajawali pers, 2016), 15. 69 international civil aviation organization, “regulation of unmanned free balloons” (international civil aviation organization, august 4, 2017), 3. 70 atilla horvath, “possible applications of high altitude platform systems for the security of south america and south europe,” academic and applied research in military and public management science 20, (2021): 88. 71 ridha aditya nugraha, “improving aviation safety in indonesia: how many more accidents?,” hasanuddin law review 2, no. 3 (2016): 328. udayana journal of law and culture vol. 7 no. 2, july 2023 158 undeniable that the potential for haps to be misused for other purposes is significant. b. security issue personal data breach has been a great issue in the cyber world for a long time. recent cyber attacks against tokopedia have exposed millions of its user personal data. 72 the same thing can happen to the broadband communication utilized from haps. these communications could be carrying sensitive information, such as bank details, passwords, or important documents. if such information is acquired by an unauthorized third party, obviously there will be legal consequences.73 that is why haps needs to be equipped with a proper and adequate information security system before it is to be used commercially. itu has made a recommendation which can be followed and should be considered for establishing an information security system based on recommendation itu-t x.1056 (01/2009). meanwhile, the indonesian government has enacted law no. 27 of 2022 concerning personal data protection that covers numerous scope, including the obligation of data controller. based on the regulation, data controller is required to record their activities, but the provision stops there and it does not specify whether the report must be admissible or not.74 this might be a problem if a data breach case is brought to court and the evidence is inadmissible. the controllers are obligated to inform data owners of how their personal data will be processed and the purpose of processing in order to get their written consent.75 the controller would have to refer to regulation of minister of communications and informatics of the republic of indonesia no. 4 of 2016 on information security system management which is the indonesian regulation for information security system management. an electronic system is divided into three levels: 76 strategic level for national interest, upper level for regional interest, and lower level for anything else not included in the first two levels according to the regulation.77 haps is likely to fall either in strategic level or the upper level. information security systems at strategic level or upper level must be built based on sni iso/iec 27001 for standard reference. 78 iso/iec 27001 is the internationally recognized standard for information security. strategic or upper information 72 ridha aditya nugraha and eisya a. eloksari, “tokopedia data breach exposes vulnerability of personal data,” https://www.thejakartapost.com/news/2020/05/04/tokopedia-data-breach-exposesvulnerability-of-personal-data.html 73 sudradjat, loc.cit. 74 law no. 27 of 2022 concerning personal data protection, art. 31. 75 ibid, art. 24. 76 anindhita firdani, “perencanaan pengelolaan keamanan informasi berbasis iso 27001 menggunakan indeks kami studi kasus: dinas komunikasi dan informatika kabupaten rembang,” jurnal pengembangan teknologi informasi dan ilmu komputer 3, no. 6 (2019): 6009-15. 77 regulation of minister of communications and informatics no. 4 of 2016 on information security system management, art. 4. 78 ibid., art 7. https://www.thejakartapost.com/news/2020/05/04/tokopedia-data-breach-exposes-vulnerability-of-personal-data.html https://www.thejakartapost.com/news/2020/05/04/tokopedia-data-breach-exposes-vulnerability-of-personal-data.html legal issues pertaining to high altitude platform station implementation in indonesia as an archipelagic state yaries mahardika putro et al 159 security systems must have an information security system certification issued by an official certification institution. 79 in order to gain such certification, the institution will send a team to perform an audit.80 if the system fulfils the standards specified in sni iso/iec 27001, the security system operator will receive their certification.81 this is followed up by a yearly surveillance audit for certified operators.82 indonesia has the basic legal foundation for data protection and information security. following some of the suggestions made by itu and choosing iso/iec 27001 as the standard reference for information security will greatly contribute towards haps security, however there are a few aspects that need redefining such as the admissibility of report in court. c. liability issue if an aircraft causes any damage to any third party, the airline is held liable. if a space object causes any damage to any third party, the launching state is also held responsible.83 this is the current rule of liability according to air law and space law respectively. haps has been described as a craft that can fly at an altitude of 20-50 km, which is well above the highestflying plane at 18 km but relatively low for a space object to fly in.84 haps technology is more similar to space engineering and the environment in which it operates is considered to be more space-like. 85 the questions arising are where does haps fit in between those two different law regimes; and thus which law regime shall apply. there are two approaches to determine which law regime applies to haps. the functionalist approach determines which regime is applicable based on the object, purpose, design, and collision risk. functionalism would mean that air law applies to haps during earth-to-earth flight and space law applies during earth-to-space flight. but what if the haps is a combination of aircraft and space engineering which is also known as an aerospace vehicle.86 consequently, the problem is uncertainty because two law regimes alternating depending on four factors is confusing and determining it in a real-time situation would be troublesome. spatialism determines the law regime according to the object’s location.87 the delimitation between airspace and outer space has not been defined until now. experts have been trying to solve this through numerous theories, and two theories stand out among the rest. the karman line theory sets the line at 100 km above the earth’s surface where both aircraft 79 ibid., art. 10. 80 ibid., art. 17 (1). 81 ibid., art 17 (4). 82 ibid., art 19. 83 annelie schoenmaker, loc.cit. 84 ibid., 2. 85 abbas mohammed et al, “the role of high-altitude platforms (haps) in the global wireless connectivity,” proceedings of the ieee 99, no. 11 (2011): 1939-53. 86 paul stephen dempsey and maria manoli, “suborbital flights and the delimitation of air space vis-à-vis outer space: functionalism, spatialism and state sovereignty,” annals of air and space law xlii (2017): 16-19. 87 ibid., 20. udayana journal of law and culture vol. 7 no. 2, july 2023 160 and space objects cannot operate, meanwhile the aerodynamics-lift theory separates air space and outer space at 83 km, or roughly between 80-90 km above the earth’s surface because this is where aircraft can no longer function properly. 88 either way, haps would fall under air law because typically it flies at 20-50 km in altitude. however, the implementation of spatialism will continuously be problematic as long as the line of delimitation is not established. in regards to the provision of delimitation in indonesian legal framework, as stated in the explanation of indonesian space act of 2013, the outer space starts from 100-110 km abovep sea level.89 however, until today the indonesian government is unable to explicitly determine the national airspace vertical limit on relevant regulation or statutory. it can be seen from both regulations in indonesia that intersect with the provision on sovereignty, such as law no. 43 of 2008 concerning state territory and government regulation no. 4 of 2018 concerning air security of the republic of indonesia.90 both regulations are kept silent in determining the vertical limit of national airspace. the regulation only mentions that the ends of national air space be appointed based on the development of international law.91 the more sensible approach would probably be the spatialist approach which would mean that haps is regulated under air law. if so, the burden of liability for haps works the same way as if it was an aircraft. the haps operator (either state-owned or private company) will be liable for any damage caused by it regardless of where it happens. yet, in order for this concept to work, some changes must be made to the current regulations. first, the definition of aircraft in annex 7 of the chicago convention of 1944 must be redefined to include aerospace vehicles. second, icao has to readjust safety and navigation regulations to accommodate aerospace vehicles. third, experts must decide where the line of delimitation of airspace and outer space lies. 3. conclusion haps is the right technology for the development of the indonesian national broadband plan since it is able to cover the rural areas in the archipelago. as haps is located at an altitude of 20-50 km from the earth’s surface, as well as the infrastructure shall change the terrestrial or satellite communication system to some extent, it is necessary to regulate haps with reference to aviation safety, security, and liability issues. definitely haps operations should not interfere airways. furthermore, personal data (including sensitive images) within haps should be well protected. lastly, the liability aspect to aircraft in flight as well as third party must not be left behind. 88 ibid., 17, 21. 89 ridha aditya nugraha and kartika paramita, “mempererat regional asean melalui tatanan hukum keantariksaan: peluang dan tantangan bagi indonesia,” jurnal hukum & pembangunan 49, no. 3 (2019): 639. 90 government regulation no. 4 of 2018 concerning air security of the republic of indonesia., art. 3. 91 law no.43 of 2008 concerning state territory, art. 6. legal issues pertaining to high 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the treaty on principles governing the activities of states in the exploration and use of outer space, including the moon and other celestial bodies. 18 u.s.t. 2410 610 u.n.t.s. 205, 61 i.l.m. 386 (1967). the united states of america. 51 u.s. code on national aeronautics and space act 20103 other documents euler, anthony, surjit badesha, and larry schroeder. “very high altitude tethered balloon feasibility study.” in 11th lighter-than-air systems technology conference. clearwater beach, fl, u.s.a.: american institute of aeronautics and astronautics, 1995. https://doi.org/10.2514/6.1995-1612 fantom, neil and umar serajuddin. “the world bank’s classification of countries by income.” https://documents1.worldbank.org/curated/en/4085814679889422 34/pdf/wps7528.pdf haryadi, sigit. “ikhtisar organisasi regulasi telekomunikasi.” preprint. inarxiv, february 28, 2018. https://doi.org/10.31227/osf.io/g9m3k https://doi.org/10.23919/icn.2020.0004 https://doi.org/10.1016/j.paerosci.2014.06.003 https://doi.org/10.2514/6.1995-1612 https://documents1.worldbank.org/curated/en/408581467988942234/pdf/wps7528.pdf https://documents1.worldbank.org/curated/en/408581467988942234/pdf/wps7528.pdf https://doi.org/10.31227/osf.io/g9m3k udayana journal of law and culture vol. 7 no. 2, july 2023 164 marcy, w.l., and r.o. hookway. “propulsion options for the hi spot long endurance drone airship.” final report. philadelphia: naval air development center, september 15, 1979. organization, international civil aviation. “regulation of unmanned free balloons.” international civil aviation organization, august 4, 2017. website content eloksari, eisya. “tokopedia data breach exposes vulnerability of personal data.” https://www.thejakartapost.com/news/2020/05/04/tokopedia-databreach-exposes-vulnerability-of-personal-data.html korean legislation research institute. “statutes of the republic of korea.” https://elaw.klri.re.kr/eng_service/lawview.do?hseq=38489&lang=en g nugraha, ridha aditya and taufik rachmat nugraha. “chinese balloon row: time to determine vertical delimitation in asean.” https://www.thejakartapost.com/opinion/2023/02/14/chineseballoon-row-time-to-determine-vertical-delimitation-in-asean.html putro, yaries mahardika and ridha aditya nugraha. “space economy is the future, but how to realize it?.” https://www.thejakartapost.com/opinion/2023/03/16/spaceeconomy-is-the-future-but-can-indonesia-realize-it.html https://www.thejakartapost.com/news/2020/05/04/tokopedia-data-breach-exposes-vulnerability-of-personal-data.html https://www.thejakartapost.com/news/2020/05/04/tokopedia-data-breach-exposes-vulnerability-of-personal-data.html https://elaw.klri.re.kr/eng_service/lawview.do?hseq=38489&lang=eng https://elaw.klri.re.kr/eng_service/lawview.do?hseq=38489&lang=eng https://www.thejakartapost.com/opinion/2023/02/14/chinese-balloon-row-time-to-determine-vertical-delimitation-in-asean.html https://www.thejakartapost.com/opinion/2023/02/14/chinese-balloon-row-time-to-determine-vertical-delimitation-in-asean.html https://www.thejakartapost.com/opinion/2023/03/16/space-economy-is-the-future-but-can-indonesia-realize-it.html https://www.thejakartapost.com/opinion/2023/03/16/space-economy-is-the-future-but-can-indonesia-realize-it.html vol. 4, no. 1, january 2020, pp. 1-20 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3398 e-issn 2549-0680 1 “girls just wanna have fun(damental) human rights:” how the women’s convention and belgium combat gender stereotypes bo minou beintema* faculty of law, university of maastricht, the netherlands article received: 16th october 2019; accepted: 13th january 2020; published: 31st january 2020 abstract to put it simply, the purpose of the women’s convention is to end discrimination on the basis of sex. the inclusion of article 5, paragraph (a), which focuses on fixed gender roles that get in the way of that goal, provides one of the ways in which they aim to do so. state parties cannot hide behind their respective traditions or customs as to why the realisation of international human rights ultimately depends on gender. a question that arises is what does this mean for states in terms of concrete obligations. this article aims to provide an answer to that question by exploring article 5 (a) and the notion of extra-legal measures, in particular. equally, it will take a closer look at how one of the state parties, namely belgium, is doing in this regard both in theory as in practice. by conducting literary research it becomes apparent that state parties have to adopt national laws and/or instruments. furthermore, they have to incorporate extra-legal measures as well. meaning, they should incorporate measures to influence the mindsets of people regarding gender equality through means such as education, the media and public information projects, for instance. although belgium continues to struggle with the effective implementation of its laws and policies due to its inherent complex institutional structure. it can still be said that its well on its way to combat gender inequality in light of article 5 (a). ultimately, article 5 (a) brings meaning to every right in the women’s convention by considering that it is only when gender equality is reached both before the law and in practice that women will be able to enjoy human rights. keywords: article 5 un women’s convention; gender equality; international human rights law; extra-legal measures; belgium. how to cite (chicago 16th): beintema, bo minou. “‘girls just wanna have fun(damental) human rights:’ how the women’s convention and belgium combat gender stereotypes .” udayana journal of law and culture 4, no. 1 (2020): 1–20. https://doi.org/https://doi.org/10.24843/ujlc.2020.v04.i01.p01. doi: https://doi.org/10.24843/ujlc.2020.v04.i01.p01 * email/corresponding author: b.beintema@student.maastrichtuniversity.nl and bmbeintema@gmail.com https://ojs.unud.ac.id/index.php/ujlc/issue/view/3398 https://doi.org/10.24843/ujlc.2020.v04.i01.p01 mailto:b.beintema@student.maastrichtuniversity.nl mailto:bmbeintema@gmail.com “girls just wanna have fun(damental) human rights:” how the women’s convention and belgium combat gender stereotypes bo minou beintema 2 1. introduction the convention on the elimination of all forms of discrimination against women 1 (hereafter “the women’s convention”) celebrated its 40th birthday on the occasion of international women’s day in the year 2019.2 in spite of the impressive steps that have been taken in the past several decades, gender inequality remains a dreadful truth on a global level. it is painfully apparent when looking at a world in which the wage gap, son preference and gender-based violence continue to exist. article 5 of the women’s convention addresses said inequality implicitly by referencing to gender stereotypes in paragraph (a) and fixed parental gender roles in paragraph (b). more specifically, article 5 (a) entails an obligation upon states “to modify social and cultural patterns of conduct” in regards to men and women on the basis of stereotypes; while article 5 (b) requires states to take appropriate measures to educate parents on their shared responsibility towards the upbringing and development of their children instead of solely relying on fixed parental roles. this paper will, however, focus only on article 5 (a). the european institute for gender equality (hereafter “the eige”) defines gender inequality as a: “legal, social and cultural situation in which sex and/or gender determine different rights and dignity for women and men, which are reflected in their unequal access to or enjoyment of rights, as well as the assumption of stereotyped social and cultural roles.” 3 as derived from the said definition, it can be stated that expected gender roles and cultural norms can actually stand in the way of the fulfillment of the human rights of women. for instance, in regards to choosing a profession, the law of a state might incorporate provisions that recognize that men and women are equal before the law and therefore enjoy the same right of choosing a job to their liking. nevertheless, all too often the society in which they live has a different idea of what is appropriate for men and women. a concrete example that portrays this point is the low representation of men in the caregiving industry. this reality can, for a large part, be ascribed to the commonly found belief that communal, nurturing roles are reserved for women.4 the other side of the same coin highlights how men are supposedly 1 convention on the elimination of all forms of discrimination against women, general assembly resolution 34/180 of 18 december 1979, article 5. 2 office of the high commissioner, “committee on the elimination of discrimination against women.” https://www.ohchr.org/en/hrbodies/cedaw/pages/recommendations.aspx 3 european institute for gender equality, “gender inequality.” https://eige.europa.eu/thesaurus/terms/1182 4 alice h. eagly, sabine sczesny, “gender roles in the future? theoretical foundations and future research directions." frontiers in psychology 10 (2019): 6. https://www.ohchr.org/en/hrbodies/cedaw/pages/recommendations.aspx https://eige.europa.eu/thesaurus/terms/1182 udayana journal of law and culture vol. 4 no. 1, january 2020 3 more prone to take action, thereby being more fit to lead.5 thoughts, such as those mentioned above, are often deeply embedded within peoples’ beliefs and can dictate which genders should take upon which professions. therefore, in spite of there being de jure equality, as a result of the de facto inequality between men and women, women will either not choose certain professions or will simply not be considered for them. as long as it is not socially accepted for both genders to exercise similar professions, the specific right that allows doing so will not contribute to equality. thus, as long as gender equality is not simultaneously achieved in law and in practice, the human rights of women will not be effective,6 as they will not reach their designed potential. it is equally important to note that gender inequality impacts women differently across the globe and gender can not be simplified into one big catch-all category of women uniting.7 in regards to article 5 (a), this article aims to uncover the meaning behind “all appropriate measures” as meant by the women’s convention. furthermore, it will assess how one of the state parties has tried to comply with this article, namely the kingdom of belgium, and see the results, or lack of, by the measures taken. the author landed on this choice partly because most western countries pride themselves on having achieved gender equality simply because of their respective legal recognition of the notion. even when confronted with evidence suggesting the contrary. recently in a big city in belgium, a young woman tragically lost her life after she was raped and left for dead in a river.8 it sent a shockwave through the country and raised questions on how this could happen in a country with formal equality and safety measures designed to combat inequality. and for the other part, as the author an inhabitant and former law student of belgium, these issues seem interesting to be scrutinized. therefore, with an empirical approach and particular focus on cedaw instruments, the author will try to provide answers to the following questions: firstly, what does article 5(a) of the women’s convention entail? what is meant by ‘all appropriate measures’? and secondly, which measures have the government of belgium taken to uphold its obligations under article 5 (a) of the convention and how effective have these been? 5 tanja hentschel, madeline e. heilman and claudia v. peus, the multiple dimensions of gender stereotypes: a current look at men’s and women’s characterizations of others and themselves." frontiers in psychology 10 (2019): 9. 6 ingrid westendorp, ‘using culture to achieve equality’, ingrid westendorp (ed.), the women’s convention turned 30, intersentia, cambridge, 2012, 111. 7 liza baldez, "the un convention to eliminate all forms of discrimination against women (cedaw): a new way to measure women's interests." politics & gender 7, no. 3 (2011): 420. 8 demorgen. “verdwijning in antwerpen: lichaam vermiste julie van espen (23) gevonden in albertkanaal, mogelijke dader gearresteerd.” last modified may 7, 2019. https://www.demorgen.be/nieuws/lichaam-vermiste-julie-van-espen-23-gevonden-inalbertkanaal-mogelijke-dader-gearresteerd~be170451/ https://www.demorgen.be/nieuws/lichaam-vermiste-julie-van-espen-23-gevonden-in-albertkanaal-mogelijke-dader-gearresteerd~be170451/ https://www.demorgen.be/nieuws/lichaam-vermiste-julie-van-espen-23-gevonden-in-albertkanaal-mogelijke-dader-gearresteerd~be170451/ “girls just wanna have fun(damental) human rights:” how the women’s convention and belgium combat gender stereotypes bo minou beintema 4 the structure of this paper is the following. in section 2.1, this paper will deal with the international legal framework, which starts with the women’s convention and specifically the first paragraph of article 5 in section 2.1.1. subsequently, it will look into other international human rights treaties and soft law instruments to see if similar provisions have been provided in section 2.1.2. in the following section 2.2, a closer look will be taken at the implementation of article 5 (a) of the women’s convention in the domestic framework of belgium. for which, both legal and extra-legal measures will be taken into account. in section 2.3, this paper will turn to look at the current situation in belgium and see how and if their measures have contributed to actual gender equality. in this section, author will give her own personal view on the issue discussed. finally, in section 3, it will address concluding remarks and personal recommendations. 2.1 international legal framework 2.1.1 the women’s convention the women’s convention is an international multi-lateral treaty, currently counting 189 state parties9 and 30 articles.10 the convention was established with the goal in mind of eliminating all forms of discrimination against women on the basis of gender.11 more specifically it “aims to achieve substantive equality where women are able to enjoy their human rights in practice, and are given equal access to opportunities and an enabling environment to achieve equal results”.12 this goal would be an unreachable fantasy without the inclusion and correct implementation of article 5. article 5 states that “states parties shall take all appropriate measures: (a) to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;” article 5 (a) of the women’s convention was designed specifically to combat harmful prejudices, customs and practices based on stereotypes and the idea of inferiority or superiority over either of the sexes that stand in 9 united nations treaty collection. convention on the elimination of all forms of discrimination against women. https://treaties.un.org/pages/viewdetails.aspx?src=ind&mtdsg_no=iv8&chapter=4&clang=_en 10 convention on the elimination of all forms of discrimination against women, general assembly resolution 34/180 of 18 december 1979. 11 lisa baldez, op.cit., 423. 12 un women. “infographic: human rights of women” https://www.unwomen.org/en/digital-library/multimedia/2019/12/infographic-humanrights https://treaties.un.org/pages/viewdetails.aspx?src=ind&mtdsg_no=iv-8&chapter=4&clang=_en https://treaties.un.org/pages/viewdetails.aspx?src=ind&mtdsg_no=iv-8&chapter=4&clang=_en https://www.unwomen.org/en/digital-library/multimedia/2019/12/infographic-human-rights https://www.unwomen.org/en/digital-library/multimedia/2019/12/infographic-human-rights udayana journal of law and culture vol. 4 no. 1, january 2020 5 between the effective enjoyment of human rights for women. 13 patterns such as these can be referred to as ‘gender stereotyping’14: the practice “of ascribing to an individual woman or man specific attributes, characteristics, or roles by reason only of her or his membership in the social group of women or men”. an example of a harmful gender stereotype is the taboo around female sexuality, especially seen with adolescent girls,15 combined with a misplaced need of regulating a woman her freedom in that regard. resulting all too often in wrong or even a complete lack of information concerning sexual and reproductive rights.16 whereas article 5 focuses on the modification of beliefs and ultimately behavior, it amplifies the women’s convention ultimate goal and reasoning.17 which is why article 5 has to be read in conjunction with the purpose of the entire women’s convention.18 it is by demanding a “social and cultural transformation” within state parties,19 that this article could play a vital role in the realization of the human rights of women when implemented correctly. nevertheless, questions remain as to what qualifies as desired behavior by states or what amounts to harmful practices. considering that most social and or cultural patterns are so deeply embedded within society people nor states might even realize that certain practices are harmful. or even in the case that some people do, that the practice itself might be considered to be appropriate regardless. the committee on the elimination of discrimination against women (hereafter “cedaw”), as the monitoring body to the women’s convention, holds the perfect position to offer clarity. unfortunately, cedaw has not published a general recommendation specifically on article 5 yet. it has made multiple references to this article in other general recommendations and has issued concluding remarks in response to state reports in which they do explicitly refer to article 5 (a). furthermore, cedaw has expressed the importance of that article for the realization of other human rights under the women’s convention, including 13 ingrid westendorp, op.cit.,115. 14 office of the high commissioner. “gender stereotyping.” https://www.ohchr.org/en/issues/women/wrgs/pages/genderstereotypes.aspx 15 cefmu, report ‘tackling the taboo: sexuality and gender-transformative programmes to end child, early and forced marriages and unions’ (june 2019) :5. 16 ohchr, report ‘gender stereotyping as a human rights violation’, september 2014. 17 e. lijnzaad, ‘over rollenpatronen en de rol van het verdrag’, a.w. heringa, j. hes, l. lijnzaad (editors), het vrouwenverdrag: een beeld van een verdrag…, maklu uitgevers, antwerpen-apeldoorn, 1994, 43. 18 elizabeth sepper, “confronting the “sacred and unchangeable”: the obligation to modify cultural patterns under the women’s discrimination treaty.” university of pennsylvania journal of international law 30, no. 2 (2008): 596. 19 ramona biholar, transforming discriminatory seks roles and gender stereotyping, intersentia, cambridge, 2013, 4. https://www.ohchr.org/en/issues/women/wrgs/pages/genderstereotypes.aspx “girls just wanna have fun(damental) human rights:” how the women’s convention and belgium combat gender stereotypes bo minou beintema 6 but not limited to the right to education, the right to participation in political and public life and the right to employment.20 whereas the article does not explicitly use terms such as gender inequality or gender-based discrimination, by combining article 5 (a) together with article 1 and 2 (f) of the women’s convention, it becomes clear that it does deal with gender-based discrimination against women.21 while article 1 provides a definition of what will be understood as discriminatory by the women’s convention. article 2 (f) of the women’s convention obliges states “to provide legal protection and to abolish or amend discriminatory laws and regulations as part of the policy of eliminating discrimination against women”.22 this article provides the basis for legal and extra-legal measures, which states are obligated to implement in order to comply with article 5 (a). 23 in general recommendation number 25 cedaw clearly states that obligations deriving from the women’s convention go beyond a “purely formal legal obligation of equal treatment of women with men” and have to be integrated into a wider fashion.24 considering that article 5 does not offer a definition to what is understood by ‘all appropriate measures’, nor is there a general recommendation to turn to, one can look at the type of measures cedaw has in their concluding observations advised states to adopt. as mentioned earlier this obligation is twofold and requires both legal and extra-legal measures. for instance, in regards to gender-based violence cedaw has obliged state parties to adopt legislation in order to protect women from violence in everyday life, such as in the workplace or domestic violence.25 where legal measures are more traditional and commonly understood in the same manner, extra-legal measures raise questions. it can easily be implied from the wording that states have to incorporate measures that go beyond the law. nevertheless, without a definition in the convention or clarification from cedaw this notion remains vague and unclear as to which measures will be considered as good practice. thus, this paper turns to the recommended measures by cedaw. there are numerous fields that come to mind that present opportunities to combat harmful stereotypes or gender roles. for instance, cedaw has 20 ingrid westendorp, op.cit., 116. 21 cedaw/c/gc/28, general recommendation no. 28 on the core obligations of states parties under article 2 of the convention on the elimination of all forms of discrimination against women, 16 december 2010,paragraph 5. 22 cedaw/c/gc/28, general recommendation no. 28 on the core obligations of states parties under article 2 of the convention on the elimination of all forms of discrimination against women, 16 december 2010, paragraph 31. 23 ingrid westendorp, op.cit., 113. 24 cedaw, general recommendation no. 25, temporary special measures (art. 4), 2004, paragraph 6. 25 cedaw, general recommendation no. 12, violence against women, 1989, preamble. udayana journal of law and culture vol. 4 no. 1, january 2020 7 urged states parties “to adopt education and public information programs, which will help eliminate prejudices and current practices that hinder the full operation of the principle of the social equality of women”.26 education can be used as an effective tool to shape the minds of children and presents a clear field in which measures should be taken. additionally, cedaw has urged state parties to create new textbooks or make changes in existing ones that portrayed stereotypical behavior and traditional role patterns.27 they have also called upon state parties to “intensify its efforts aimed at diversifying academic and vocational choices for women and men and take further measures to encourage women and men to choose non-traditional fields of education and careers;” therefore encouraging women and men to ignore gender roles and choose education fields regardless of societal expectations that may exist. 28 the media has also been recognized by cedaw as an important influence on the mindset of people. states are therefore urged to work with, influence or use the media themselves as an appropriate measure.29 later recommendations dealt with gender-based violence where cedaw clarified what was expected from state parties as the following: “the obligations of the state party that are set out in article 2 (a), (b) and (e) of the convention extend to the prevention of, and protection from violence against women, …” 30 which amounts to a positive obligation for states. general recommendation 19 elaborated on the notion of gender-based violence by stating that traditional attitudes, which place women in a subordinate position to men, are typically used as justifications for violence by perpetrators. in the case of ms. a.t v. hungary, in which hungary had failed to take the appropriate measures to protect ms. a.t from her abusive husband, it was blatantly apparent how the entire country viewed women as inferior to men.31 again through combining article 5 (a) with article 1 of the women’s convention it becomes clear that it is both upon state parties and private actors to not only refrain from gender-based violence but take measures to abandon these type of harmful attitudes that led to the violence in the first place.32 further examples of concrete measures include statistics 26 cedaw/a/42/38, general recommendation no.3, education and public information campaigns, 1987, preamble. 27 ingrid westendorp, op.cit., 118. 28 un doc, c/bel/co/7, concluding observations on the seventh periodic report of belgium, cedaw, 2014, para 31. 29 ingrid westendorp, op.cit., 119. 30 a.t. v. hungary (ms. a.t. v. hungary), communication no.2/2003, cedaw 2005, para. 9.3. 31 loveday hodson, “women’s rights and the periphery: cedaw’s optional protocol,” european journal of international law 25, no. 2 (2014): 568. 32 cedaw/a/47/38, general recommendation no. 19, violence against women, 1992, para. 11-12. “girls just wanna have fun(damental) human rights:” how the women’s convention and belgium combat gender stereotypes bo minou beintema 8 on the incidence of violence of all kinds against women and on women who are victims of violence in their reports to the committee.33 2.1.2 other human rights treaties and declarations anti-discrimination clauses can be found in almost every human rights instrument, 34 but only several other international instruments contain provisions in which obligations are posed upon states to eliminate harmful cultural practices and social patterns that stand in the way of the realization of human rights. some of these instruments explicitly mention discrimination between men and women on the basis of gender, while others were later clarified to include such meaning. both types are discussed below. article 3 of the international covenant on civil and political rights35 (hereafter “iccpr”) covers the obligation on states to ensure “the equal right of men and women to the enjoyment of all civil and political rights set forth in the present covenant”. the human rights committee (hereafter “hrc”) updated its views on article 3 of the iccpr in 2000 in its general recommendation number 28. in this document, the hrc considers that “inequality in the enjoyment of rights by women throughout the world is deeply embedded in tradition, history and culture, including religious attitudes”.36 in the final paragraph of the same general recommendation, the hrc addresses the specific rights enjoyed by minorities in respect of their culture, language and religion and how said rights will not justify discrimination against women in the fulfillment of their human rights under the iccpr. nor will it allow a difference in legal protection between men and women. 37 therefore states cannot rely on cultural patterns or social constructs as a justification as to why women did not enjoy equal treatment before the law or equal enjoyment of the rights under the iccpr specifically. article 3 of the international covenant on economic, social and cultural rights38 (hereafter “icescr”) is identical in wording to article 3 iccpr and obliges states to “ensure” the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in 33 ibid. 34universal declaration of human rights, general assembly resolution 217 a, 10 december 1948, article 2; convention against torture and other cruel, inhuman or degrading treatment or punishment, general assembly resolution 39/46, 10 december 1984, article 1;… 35 international covenant on civil and political rights, general assembly resolution 2200 (xxi), 16 december 1966. 36ccpr/c/21 general recommendation no.28, equality of rights between men and women (art. 3), 2000, para. 5. 37ccpr/c/21, general recommendation no.28, equality of rights between men and women (art. 3), 2000, para. 32. 38 international covenant on economic, social and cultural rights, general assembly resolution 2200a (xxi), 16 december 1966. udayana journal of law and culture vol. 4 no. 1, january 2020 9 icescr. “to ensure” entails a positive obligation, meaning that states have to undertake action in order to comply with the obligation. article 3 icescr has to be read in conjunction with each specific right guaranteed under the convention.39 in their general recommendation number 16, the committee on economic, social and cultural and rights (hereafter “cescr”) explains how gender can affect the enjoyment of rights, whereas this enjoyment is an equal right in itself for both men and women. and how gender-based assumptions and expectations usually work to the disadvantage of women.40 the organisation for economic co-operation and development (also known as “oecd”) even went as far as to conclude; “gender equality will take over 200 years”, on the basis of their own collected data,41 derived from their gender, institutions and development database. 42 factors such as discrimination in the family based on societal expectations were the basis to said conclusion. women worldwide continue to bear 75 percent of unpaid domestic housework. 43 this precludes women from fully participating in economic, social and political development, which leads to inequality. the declaration on the elimination of violence against women 44 entails such obligation under article 4 that obligates states to not only condemn violence against women on the one hand but on the other hand not to justify said violence on the basis of custom, tradition or religious consideration45. the beijing declaration and platform for action (hereafter “the beijing declaration)46 was adopted on the fourth world conference on women and designed to function as an agenda for the empowerment of women. during the world conference on women, multiple actors come together, such as government delegates, ngo representatives and international civil servants, to reach political agreements on shared goals towards female empowerment. paragraph 24 of its preamble 47 mentioned that all necessary measures will be taken “to eliminate all forms of 39 cescr/e/c.12/2005/4, general comment no. 16, equality of rights between men and women (art. 3), 2005, para. 2. 40 cescr/e/c.12/2005/4, general comment no. 16, equality of rights between men and women (art. 3), 2005, para. 14. 41 oecd. “a long way before promises turn into progress: discriminatory laws and social norms still hamper gender equality.” https://www.oecd.org/gender/data/a-long-waybefore-turning-promises-into-progress-discriminatory-laws-and-social-norms-still-hampergender-equality.htm 42 oecd. “gender, institutions and development database.” https://stats.oecd.org/index.aspx?datasetcode=giddb2019 43 oecd. “a long way before promises turn into progress: discriminatory laws and social norms still hamper gender equality.” https://www.oecd.org/gender/data/a-long-waybefore-turning-promises-into-progress-discriminatory-laws-and-social-norms-still-hampergender-equality.htm 44 un doc. a/res/48/104, declaration on the elimination of violence against women, 20 december 1993. 45 ingrid westendorp, op.cit., 114. 46 a/conf.177/20: beijing declaration and platform for action, 1995. 47 ibid, para. 24. https://www.oecd.org/gender/data/a-long-way-before-turning-promises-into-progress-discriminatory-laws-and-social-norms-still-hamper-gender-equality.htm https://www.oecd.org/gender/data/a-long-way-before-turning-promises-into-progress-discriminatory-laws-and-social-norms-still-hamper-gender-equality.htm https://www.oecd.org/gender/data/a-long-way-before-turning-promises-into-progress-discriminatory-laws-and-social-norms-still-hamper-gender-equality.htm https://stats.oecd.org/index.aspx?datasetcode=giddb2019 https://www.oecd.org/gender/data/a-long-way-before-turning-promises-into-progress-discriminatory-laws-and-social-norms-still-hamper-gender-equality.htm https://www.oecd.org/gender/data/a-long-way-before-turning-promises-into-progress-discriminatory-laws-and-social-norms-still-hamper-gender-equality.htm https://www.oecd.org/gender/data/a-long-way-before-turning-promises-into-progress-discriminatory-laws-and-social-norms-still-hamper-gender-equality.htm “girls just wanna have fun(damental) human rights:” how the women’s convention and belgium combat gender stereotypes bo minou beintema 10 discrimination against women and the girl child and remove all obstacles to gender equality and the advancement and empowerment of women”. the rest of the beijing declaration contains strategic objectives and actions as well as critical areas of concern. one of the areas of concern that is mentioned is the stereotyping of women and inequality in regards to access to communication. 2.2 the domestic framework of the kingdom of belgium 2.2.1 legal measures like most western states, belgium has accomplished formal equality between men and women in the eyes of the law.48 meaning that belgian law does not merely formulate equality between the sexes in explicit terms but has incorporated anti-discrimination measures as well. in regards to its international obligations, belgium has a monist constitutional system. due to its monist status, article 5 is directly applicable in the domestic legal system of belgium, by virtue of ratification of the women’s convention. therefore, belgium did not have to adopt a specific law in order for article 5 to be applicable in its territory. 49 nevertheless, it has adopted its own specific legal measures as well, which will be addressed in the following section. due to its federal nature, as a country consisting of three regions and three communities, both federal and local regulations exist. 50 all the existing measures on a federal level will be addressed first. in 2002, the federal institution for the equality of women and men (hereafter “the institution”) was created. the institution is an autonomous public agency with legal personality, which has been trusted with the difficult task of changing the mindsets of the belgian people in a way that gender equality will not only be seen but actually be experienced as the norm in daily life. its mandate allows the institution, for instance, to conduct, coordinate and develop research as well as make recommendations to belgian legislators.51 so far it has only issued one recommendation on the topic of gender discrimination, categorized by them as falling under ‘sexism’. the institution consists of several units, one of which is called ‘gender mainstreaming’.52 48 elizabeth sepper, op.cit., 587. 49 katholieke universiteit leuven. “the struggle concerning interpretative authority in the context of human rights – the belgian experience.” https://www.law.kuleuven.be/personal/mstorme/humanrightsbelgianexperiences.pdf 50 belgium.be. belgium, a federal state. https://www.belgium.be/en/about_belgium/government/federale_staat 51 instituut voor gelijkheid van vrouw en man. “opdrachten”. https://igvmiefh.belgium.be/nl/organisatie/opdrachten 52 instituut voor gelijkheid van vrouw en man. “institute for the equality of women and men.” https://igvm-iefh.belgium.be/en/organisatie https://www.law.kuleuven.be/personal/mstorme/humanrightsbelgianexperiences.pdf https://www.belgium.be/en/about_belgium/government/federale_staat https://igvm-iefh.belgium.be/nl/organisatie/opdrachten https://igvm-iefh.belgium.be/nl/organisatie/opdrachten https://igvm-iefh.belgium.be/en/organisatie udayana journal of law and culture vol. 4 no. 1, january 2020 11 furthermore, belgium implemented a federal general antidiscrimination law consisting of three parts in 2007. one of which focused solely on discrimination between men and women, namely, the gender act 2007. 53 in the same year the complementary gender mainstreaming law was adopted. the goal of both legislations, as mentioned above, is to improve equality between men and women. gender mainstreaming specifically: “seeks to change institutional structures, policy instruments, and priorities from a gender equality perspective. it does so by creating the conditions for institutional learning—for instance, by building up gender expertise within organizations. the idea is to enable bureaucrats to reorganize institutional procedures and to redefine policy values in ways to achieve gender equality.” 54 through article 2 of the belgian gender mainstreaming law, the government of belgium expresses its intentions of guarding over the implementation of the goals set by the beijing declaration. 55 namely, it does so by offering its own individual set of objectives within that instrument. whereas, by simply adding on to them or providing stronger protection clauses, these goals are in accordance with the existing objectives as provided in the beijing declaration. additionally, another feature of this gender mainstreaming law is the integration of a so-called “gender dimension” within belgium’s federal governance structures in which belgium both the political and administrative side of the government have to take gender equality into account every step of the way when making decisions. for instance, belgian ministers have to take the gender dimension into account when preparing budgets, referred to as “gender budgeting”. as a consequence, for every preparatory document, a “gender nota” has to be added as to how credits will amount to the development of gender equality. in regards to the administrative side, with every possible subsidy or public contract gender equality has to be taken into account in regards to choosing a candidate.56 to further combat gender inequality, the “gendertest”57 was implemented by royal decree. it provides a guiding tool for the responsible minister to conduct an ex ante gender impact assessment when drafting laws. in this test, it is assessed what the impact is of draft legislation on the situation of women and men. in regards to legal measures taken at the regional level, the competent communities and regions adopted their own legislation in the form of 53 the gender act 2007 (10 may 2007, b.m. of 9 june 2007) 54 gülay caglar, "gender mainstreaming." politics & gender 9, no. 3 (2013), 340. 55 a/conf.177/20: beijing declaration and platform for action, 1995, paragraph 293. 56 instituut voor gelijkheid van vrouw en man. “wetgeving”. https://igvmiefh.belgium.be/nl/activiteiten/gender_mainstreaming/wetgeving 57 instituut voor gelijkheid van vrouw en man. “de_gendertest”. https://igvmiefh.belgium.be/nl/activiteiten/gender_mainstreaming/toepassing/de_gendertest https://igvm-iefh.belgium.be/nl/activiteiten/gender_mainstreaming/wetgeving https://igvm-iefh.belgium.be/nl/activiteiten/gender_mainstreaming/wetgeving https://igvm-iefh.belgium.be/nl/activiteiten/gender_mainstreaming/toepassing/de_gendertest https://igvm-iefh.belgium.be/nl/activiteiten/gender_mainstreaming/toepassing/de_gendertest “girls just wanna have fun(damental) human rights:” how the women’s convention and belgium combat gender stereotypes bo minou beintema 12 decrees. 58 for instance, the flemish community adopted the equal opportunities and equal treatment policy in 2008 59 and the frenchspeaking community of belgium adopted another decree in the same year, which is called the decree on the fight against certain forms of discrimination.60 the latter covered the same grounds as the federal gender mainstreaming law. respectively, the walloon region adopted a decree on the fight against certain forms of discrimination that included a compartment on the discrimination between men and women.61 2.2.2 extra-legal measures as mentioned above, state parties to the women’s convention have an obligation to take all appropriate measures to eliminate all cultural practices and traditions that amount to gender inequality, both in and outside the law. therefore states need to implement extra-legal measures alongside the legal ones in order to modify social and cultural patterns of conduct. both the belgian federal government and the communities alike have adopted several measures to eliminate harmful stereotypes in the media. communities in belgium try to combat gender inequality by raising awareness amongst teachers and by creating innovative textbooks. in the french community, for instance, educational textbooks will be ‘screened’ for gender roles and traditional stereotypes and schools can get subsidies when purchasing ‘gender equal’ textbooks. 62 in regards to the media and advertisements, the jury for ethical practices in advertising (hereafter “jep”) regarding ethical communication was founded in 1974 and functions as a self-regulatory body. 63 “its main task is to determine whether the advertising messages disseminated through the mass media (newspapers, magazines…), e-mailing and/or direct mail are in accordance with the rules on advertising ethics, for which it relies on belgian statutory law and on the self-disciplinary codes”.64 since 2009 the institution is represented in the 58 european institute for gender equality. “gender inequality.” https://eige.europa.eu/thesaurus/terms/1182 59 framework decree on equal opportunities and equal treatment policy of 10 july 2008 (b.m 23 september 2008) 60 decree of 12 december 2008 on the fight against certain forms of discrimination (b.m. of 13 january 2009) 61 decree, concerning the fight against certain forms of discrimination 6 november 2008 (b.m. 19 december 2008) 62 the policy on gender equality in belgiumupdate 2015. https://rosavzw.be/digidocs/dd000777_2015_policy_on_gender_equality_in_belgium_ep.pdf 63 acc belgium. “advertising self regulation and the jep.” http://www.accbelgium.be/tools-services/advertising-self-regulation-jep 64 y. janssens, ‘sex-role stereotyping and sex discrimination regulation in advertising: the belgian case’, c. cerqueira; r. cabecinhas & s. i. magalha es (eds.), gender in focus: (new) trends in media, cesccentro de estudos de comunicacāo e sociedade universidade do minho, braga portugal, 2016, 87. https://eige.europa.eu/thesaurus/terms/1182 https://rosavzw.be/digidocs/dd-000777_2015_policy_on_gender_equality_in_belgium_ep.pdf https://rosavzw.be/digidocs/dd-000777_2015_policy_on_gender_equality_in_belgium_ep.pdf http://www.accbelgium.be/tools-services/advertising-self-regulation-jep udayana journal of law and culture vol. 4 no. 1, january 2020 13 jep, to make sure that a gender dimension will be taken into account when dealing with complaints.65 furthermore, the same institution is coordinating a national action plan to combat gender-based violence.66 2.3 in practice the eige has awarded belgium with a 71.1 out of a 100 in the european gender equality index, based on the indicators they use to review how far european countries are removed from achieving gender equality.67 as the previous section mentioned belgium has adopted multiple measures aiming to combat gender inequality, but the question arises as to how these measures are being implemented to benefit both men and women. it appears that in spite of the existing measures and the focus on legal recognition of equality, belgium still struggles to fully comply with the aim of article 5 of womens’s convention. whereas the main struggle seems to lie with cultural and social barriers, such as traditional gender roles and sexist behaviors, belgium also faces some difficulties on the legal front. due to belgium’s monist nature, the articles derived from the women’s convention are all supposed to be fully applicable within domestic law from the moment of ratification. nevertheless, in practice not all substantive rights are fully applicable yet due to the fact that belgian courts still have to determine whether or not they are compatible with belgian law.68 furthermore, belgium has a complex institutional structure that, in spite of the legislation and policies trying to combat inequality, has a tendency towards fragmentation of gender equality and causes gender gaps to remain. 69 cedaw has recognized this complexity in its most recent concluding observations on the seventh periodic report of belgium, conducted in 2014, where it voices its concerns with regards to the efficiency of the institution.70 although cedaw recognizes the potential of the work of the institution, it is worrying that an overarching strategy is lacking and that the institution does not possess the power to coordinate federal policies on 65 the policy on gender equality in belgiumupdate 2015. https://rosavzw.be/digidocs/dd000777_2015_policy_on_gender_equality_in_belgium_ep.pdf, p. 22. 66 european institute for gender equality. “combating violence against women: belgium”. https://eige.europa.eu/rdc/eige-publications/combating-violence-againstwomen-belgium 67 european institute for gender equality. gender equality index: belgium. https://eige.europa.eu/gender-equality-index/2019/be 68un doc, c/bel/co/7, concluding observations on the seventh periodic report of belgium, cedaw, 2014, para. 8-9. 69 the policy on gender equality in belgiumupdate 2015. https://rosavzw.be/digidocs/dd000777_2015_policy_on_gender_equality_in_belgium_ep.pdf 70un doc, c/bel/co/7, concluding observations on the seventh periodic report of belgium, cedaw, 2014, para. 10-11. https://rosavzw.be/digidocs/dd-000777_2015_policy_on_gender_equality_in_belgium_ep.pdf https://rosavzw.be/digidocs/dd-000777_2015_policy_on_gender_equality_in_belgium_ep.pdf https://eige.europa.eu/rdc/eige-publications/combating-violence-against-women-belgium https://eige.europa.eu/rdc/eige-publications/combating-violence-against-women-belgium https://eige.europa.eu/gender-equality-index/2019/be https://rosavzw.be/digidocs/dd-000777_2015_policy_on_gender_equality_in_belgium_ep.pdf https://rosavzw.be/digidocs/dd-000777_2015_policy_on_gender_equality_in_belgium_ep.pdf “girls just wanna have fun(damental) human rights:” how the women’s convention and belgium combat gender stereotypes bo minou beintema 14 gender mainstreaming. therefore, cedaw has recommended a strategic plan that is sensitive to belgium’s complex federal structure. this plan includes the idea of leaving the overall coordination up to the institution as cedaw believes it would be better suited to deal with this task. the potential of the institution was recently confirmed with the first positive belgian judgement of discriminate behavior towards women, that had been brought forward by the institution. 71 on the 3rd of september 2019, the dutch-speaking brussel’s labor court decided in the case a woman who had recently given birth should be able to return to her place of employment without being degraded to a lower position. which, according to the court, suggests discrimination on the basis of sex and discrimination against pregnant women.72 in regards to education, young belgian women are currently higher educated than men by indicating that more women in the age restrictions of 25 to 34 have a tertiary degree in comparison to their male counterparts. nevertheless, gender differences towards certain educational topics, such as mathematics, remain.73 this is something cedaw commented on as well in the same concluding observations by stating that belgium had to intensify its efforts towards diversifying academic choices for women and to encourage women into choosing non-traditional fields of study.74 so far, the institution has conducted one study concerning ‘sexism’, as mentioned earlier, called “the depicted image of women and men in advertisements in belgium”.75 in this study, it is mentioned that the “jep” (“jury voor ethische praktijken inzake reclame”, translated as the jury for ethical practices in regards to advertisements) has not received many complaints. the institution could think of several reasons as to why that was the case. one suggestion was that not many people had heard of the jep, another was that stereotypes are too heavily embedded within the mindsets of people, which meant that people did not even notice that there were stereotypes within belgian advertisements. furthermore, in regard to the national action plan to combat intimate partner violence and other forms of violence, cedaw has raised its concerns 71instituut voor de gelijkheid van vrouwen en mannen. degradatie na zwangerschap, rechter oordeelt voor het eerst geslachtsdiscriminatie. https://igvmiefh.belgium.be/sites/default/files/downloads/pb_terugkeer_zwangersverlof.pdf. 72 (instituut voor de gelijkheid van vrouwen en mannen v. n.v.), judgment, arbeidsrechtbank brussel-nederlandstalig, … bron vinden. 73greater educational equality has not translated into equality in the labour market https://www.oecd.org/belgium/closing%20the%20gender%20gap%20%20belgium%20final.pdf 74 cedaw/bel/co/7, concluding observations on the seventh periodic report of belgium, cedaw, 2014, para. 31. 75 instituut voor gelijkheid van vrouw en man. https://igvmiefh.belgium.be/sites/default/files/adivsories/beeldvorming_van_vrouwen_en_ mannen_in_de_reclame.pdf https://igvm-iefh.belgium.be/sites/default/files/downloads/pb_terugkeer_zwangersverlof.pdf https://igvm-iefh.belgium.be/sites/default/files/downloads/pb_terugkeer_zwangersverlof.pdf https://www.oecd.org/belgium/closing%20the%20gender%20gap%20-%20belgium%20final.pdf https://www.oecd.org/belgium/closing%20the%20gender%20gap%20-%20belgium%20final.pdf https://igvmiefh.belgium.be/sites/default/files/adivsories/beeldvorming_van_vrouwen_en_mannen_in_de_reclame.pdf https://igvmiefh.belgium.be/sites/default/files/adivsories/beeldvorming_van_vrouwen_en_mannen_in_de_reclame.pdf udayana journal of law and culture vol. 4 no. 1, january 2020 15 on the lack of effective implementation by the belgian government.76 which turned out to be justified in light of the number of cases of rape and genderbased violence belgium is faced with. earlier this year a young woman lost her life after being raped and left for the dead which highlighted belgium’s inefficacy of dealing appropriately with these types of cases. instead of addressing the bigger issues at hand, the belgian judiciary treated the incident as an isolated incident that occurs due to budgetary cuts leaving the victim “in the wrong place at the wrong time”. 77 article 5 (a) seems of the utmost importance. it is only when one eliminates stereotypes, gender roles and other harmful cultural patterns or social constructs, that women and girls will finally be able to fully enjoy human rights. if equality is not achieved both de facto and de jure, every right incorporated in the women’s convention remains a dead letter. article 5 (a) ties everything together, whereas the women’s convention may provide substantive rights such as the right to education in article 10, the right of participation in politics in article 7 (a) or the right to health, including family planning in article 12. unless state parties remove both the legal and cultural barriers that are standing between the fulfillment of these rights all of them will be meaningless. in multiple states around the world, such as south korea, sons are still preferred over daughters. resulting in realities that often exclude women from seeking education or may even end tragically with policies on an off-spring selection that infer with their right to life.78 similar issues arise in cultures that do not allow for family planning and thereby put the lives of women in danger in spite of having ratified the convention. an effective way to reach de facto equality between men and women is through a “bottom-up approach”, in which non-state actors, such as community leaders, are involved in the process. cultures have the ability to change but will only do so when mindsets are changed, something that requires a strong will, time, and effort. it is my view that it is upon state parties to find a way to work together with community leaders, to find a way to reach out to families and carry the idea of equality through in every aspect of public and private life. it is only when society views men and women as equals that there will ever be true equality in the sense of article 5 (a) of the women’s convention. 76 cedaw/bel/co/7, concluding observations on the seventh periodic report of belgium, cedaw, 2014, para. 20. 77 de tijd. “lastpakken in toga’s.” last modified may 11, 2019. https://www.tijd.be/politiek-economie/belgie/federaal/lastpakken-in-togas/10125913.html 78 andrea den boer, valerie hudson, “patrilineality, son preference, and sex selection in south korea and vietnam,” population and development review 43, no. 1 (2017):119-121. https://www.tijd.be/politiek-economie/belgie/federaal/lastpakken-in-toga-s/10125913.html https://www.tijd.be/politiek-economie/belgie/federaal/lastpakken-in-toga-s/10125913.html “girls just wanna have fun(damental) human rights:” how the women’s convention and belgium combat gender stereotypes bo minou beintema 16 on a final note, it would be highly beneficial if cedaw issued a general recommendation on article 5 and enlightened state parties on the exact meaning of this international obligation. by offering some examples of suitable extra-legal measures to take, as these measures can be quite confusing due to a lack of definition. often, people do not realize that their behavior could be considered sexist or limiting to girls in the first place. especially when these behaviors stem from deeply imbedded traditions or customs. the law can only do so much in that regard, it is through these socalled extra-legal measures that real change tends to happen as they have the ability to influence mindsets. 3. conclusion and recommendation in conclusion, article 5 (a) of the women’s convention obliges state parties to eliminate all social constructs and cultural patterns, such as traditions, that have a harmful effect on the enjoyment of the human rights of women. states need to ensure both formal and de facto equality between men and women by taking all appropriate measures. these measures are twofold, on the one hand, state parties need to take legal measures, which means that they have to adopt article 5 (a) in their national legislation and possibly additional laws if needed to ensure the full applicability of said right. on the other hand, state parties have to take measures outside the law. by means of carrying gender neutrality through education, media and public information for instance. several other international instruments have incorporated similar provisions, to be found in treaties and in soft law instruments, such as the declaration. belgium has already implemented a number of laws and policies in order to modify social and cultural patterns of conduct. the creation of the institution in 2002 and the adoption of the gender mainstreaming law in 2007, were both great steps in the right direction. furthermore, belgium has taken some extra-legal measures as well, such as the national action plan. nevertheless, its complex institutional structure has a tendency to cause fragmentation in regards to gender equality and as a result gender gap remains to exist. to which cedaw suggested to explore the possibility of letting the institution handle the coordination on the implementation of policies in the future to tackle said fragmentation. all things considered, it is not in perfect compliance with article 5 (a) yet due to several reasons. while legal measures are important and they send the relevant messages to the inhabitants of a country, the law can only do so much. effective change in regards to the behaviour of people will only follow by changing beliefs and mindsets. this is something that could be achieved by state parties through the implementation of appropriate extra-legal measures. thus the author urges cedaw to issue a general recommendation specifically on article 5 in which they should highlight the udayana journal of law and culture vol. 4 no. 1, january 2020 17 importance of the article to the convention. by establishing its precise interpretation and through providing appropriate examples they could avoid confusion and ultimately even achieve better compliance, not just article 5 (a) but of all the rights in the women’s convention as a result. tying everything together, every right within the women’s convention becomes void and meaningless when state parties do not live by article 5. acknowledgment and disclaimer this article is the advanced version from a paper written by the author during her study at the globalisation and law master programme, faculty of law of maastricht university, the netherlands in 2019. the initial idea was created and submitted for the course human rights of women, taught by dr. ingrid westendorp. the substance contained in this academic paper is the author’s personal view and does not necessarily connect to the affiliation of the author. bibliography book biholar, ramona. transforming discriminatory seks roles and gender stereotyping, cambridge: intersentia, 2013. chapter in book janssens, y. “sex-role stereotyping and sex discrimination regulation in advertising: the belgian case” in gender in focus: (new) trends in media, edited by c. cerqueira, r. cabecinhas & s. i. magalha es, 85-101. edmonton: cesccentro de estudos de comunicacāo e 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https://treaties.un.org/pages/viewdetails.aspx?src=ind&mtdsg_no=iv-8&chapter=4&clang=_en https://treaties.un.org/pages/viewdetails.aspx?src=ind&mtdsg_no=iv-8&chapter=4&clang=_en https://www.unwomen.org/en/digital-library/multimedia/2019/12/infographic-human-rights https://www.unwomen.org/en/digital-library/multimedia/2019/12/infographic-human-rights udayana journal of law and culture vol. 02 no.2, july 2018 preface we are so grateful to publish udayana journal of law and culture (ujlc) volume 2 number 2-july 2018. this edition chose “encouraging cultural approach to law” as the thematic issue. we have observed that law has been seen merely from a ‘pure’ legal perspective. as an example, culture is given less attention by scholars, legal practitioners, and policy-makers. therefore, we endorse a cultural approach to be widely disseminated and to be used in addressing legal issues. first and second articles reveal the existence of a customary law that practised by traditional communities in indonesia. the first article shows how customary law in bali, that for decades dealing with traditional life of the customary community, has to adapt to indonesian national law as well as modern principles of banking system, when it regulates the activity of its customary-based economic institution: the village credit institution (lembaga perkreditan desa/lpd). the second article highlights the fundamental issue of how adat (customary) law is positioned in indonesia’s legal system. this article is very much coloured by academic and political debates on the existence of adat law before and after indonesian independence. a concern on how to strengthen local communities, with regards to the implementation of corporate social responsibility (csr) in the field of tourism can be seen in the third article. this article presents a framework of csr as it is regulated under indonesian and australian laws in a comparative way. the fourth article considers the needs to utilize a preventive cultural approach, on one hand, and a crime-based enforcement, on the other hand, to overcome the case of online sexual abuse of children in indonesia. it argues that cultural approach will change gradually the behaviour of society, especially families, to take a proper means of supervision and control over their children when they are involved in activities in the online world. the fifth article tries to make a genuine causality link between the natural and environmental impacts of climate change which leads to the interstate migration of peoples. it explores how climate-induced migrants could be classified as refugees under international human rights law regime. i have to express my appreciation to i ketut tika who continuously provided a generous language assistance to ujlc. also, we would like to thank all authors, submissioners, editors and reviewers who are scholars and professionals from indonesia and some other countries for their generous contribution in this edition. we do expect that this edition would encourage potential audiences to submit their papers to the ujlc for the upcoming editions. editor in chief ii e-issn 2549-0680 vol. 4, no. 1, january 2020, pp. 39-61 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3398 e-issn 2549-0680 39 the implications of village regulation toward the dualism of local leadership dynamics i nyoman subanda* universitas pendidikan nasional, bali, indonesia i nyoman budiana** universitas pendidikan nasional, bali, indonesia a.a.ngr eddy supriyadinata gorda*** universitas pendidikan nasional, bali, indonesia article received: 13th july 2019; accepted: 22nd january 2020; published: 31st january 2020 abstract the transformation of local leadership in bali has implications for the emergence of various phenomena regarding the relationship between the official administrative village and the customary village, both of which have their autonomous rights. the authority of desa adat (customary village) and desa dinas (official administrative village) coincides with each other. in this study, several issues will be discussed, namely: what is the model and process of transformation in local leadership especially in desa adat in bali? what is the process and form of negaranisasi (the process of taking over a number of the state's roles and imitating the state in carrying out its duties) in local leadership especially in desa adat in bali? what are the competencies and roles of local leaders in the local leadership process in bali? what are the roots, causes, and solutions in handling horizontal conflicts in local leadership in bali? data were collected by interview, and documentation to obtain sufficient data variance and validity. the results of the study indicate that the synergy of two (2) types of local leadership is needed. the capacity and competence of village officials and prajuru adat (customary officials) are obliged to be enhanced, strengthened and empowered so that they are able to adapt in handling various problems that arise in rural communities in the era of modernization and globalization. for this reason, it is necessary to build a synergic relationship model and leadership coordination system between desa dinas and desa adat, a model for developing the capacity and competency of village officials and prajuru adat, and developing a model for handling conflicts that have been increasingly intense. keywords: dualism; local leadership; bali; village; autonomy. how to cite (chicago 16th): subanda, i nyoman, i nyoman budiana, and a.a.ngr eddy supriyadinata gorda. “the implications of village regulation toward the dualism of local leadership dynamics.” udayana journal of law and culture 4, no. 1 (2020): 39–61. https://doi.org/https://doi.org/10.24843/ujlc.2020.v04.i01.p03 . doi: https://doi.org/10.24843/ujlc.2020.v04.i01.p03 ** email/corresponding author: subanda.nyoman@yahoo.co.id ** email :. budiana@undiknas.ac.id ***email: eddysupriyadinata@undiknas.ac.id https://ojs.unud.ac.id/index.php/ujlc/issue/view/3398 https://doi.org/10.24843/ujlc.2020.v04.i01.p03 mailto:subanda.nyoman@yahoo.co.id mailto:budiana@undiknas.ac.id mailto:eddysupriyadinata@undiknas.ac.id the implications of village regulation toward the dualism of local leadership dynamics i nyoman subanda, i nyoman budiana and a.a.ngr eddy supriyadinata gorda 1. introduction 1.1. background village government organizations with a fairly strong leadership pattern existed before the arrival of dutch colonialism in indonesia. however, ther exact time when the local leadership developed along with its path is remaining unknown.1 there is a lack of written evidence, mainly in the form of inscriptions, that was found in the era of hindu kingdoms in java and bali.2 for the situation in java, casparis revealed the existence of two stages of local leadership development, namely, the development around the 10th century and earlier, as well as the development in the majapahit era and beyond. in the development of the 10th century and before, there was no local leader (village head) as an individual figure, but there was always the council of leaders called rama. on that basis, the decisions concerning the policies of the village government were also taken together, because the rural community more displayed a figure with an autonomous institution, so the casparis likened it to the village republic.3 after the 10th century, there was a process leading to a centralized system of power by the central government. local government (in this case, the village), was previously quite democratic, in which the village leader was in the hand of the village's oldest council began to be directed at the sole power of a figure. in the era of the majapahit kingdom, this shift began to appear with the appearance of a single village leader called buyut or the great-grandfather, who was also an extension power of the central government, namely the ruling kings.4 the leadership situation stated above was still valid and increasingly complex in the days of dutch colonial rule.5 the dutch controls’ seemed to continue the existing system. the dutch strengthening the position of the village government, in representing the central government, to secure its agricultural products as the export commodities. the dutch path was continued by japan in the era of the second world war. the fact was that japan did not interfere with the traditional government affairs, but it massively utilized the existing traditional 1 gede widja. dualisme kepemimpinan lokal pada desa-desa pegunungan di kabuapaten buleleng dan implikasinya dalam pembangunan nasional (singaraja: laporan penelitian stkip singaraja, 1994), 6. 2 casparis, j.g. the evolution of the socio economic, status of javanese village and its inhabitan, (in sartono kartodirja (ed). paper of the forth indonesian-dutch history conference (agrarian history) (yogyakarta: gadjah mada university press, 1986). 3-24. 3 ibid. 4 ibid. 5 clifford geertz. the theatre state in nineteenth bali, translated by hartono hadikusumo. negara teater kerajaan-kerajaan di bali abad xlx. (yogyakarta: yayasan banteng budaya, 2000),45-85. udayana journal of law and culture vol. 4 no. 1, january 2020 41 leadership and provided a position that prioritizing official village leadership to support the interests of the japanese government. the transformation of the dualism of local leadership existing in bali had occurred in the period before the colonial era, orde lama or the old order period, orde baru (the new order) period up to orde reformasi (the reformation period) that has been taken place nowadays. before the reformation period, the position of desa adat (the customary village) was sub-ordinate to desa dinas (the official administrative village). actually, these two villages have different functions. desa adat has functions in the field of culture, customs, and ritual traditions of hindu religious life, while desa dinas plays its functions and roles in the field of bureaucracy in the level of official village, runs administrative roles, and becomes the part of regional government structure.6 in fact, nowadays customary villages have very strong bargaining positions both in the supra-local government and in the village government. recognition of customary villages is regulated in article 18b paragraph (2) of the 1945 constitution of the republic of indonesia. customary villages are seen as local government structures that have the duty to keep the custom and culture. the customary villages' bargaining positions then becomes stronger in the context of strengthening village autonomy to the regions. it entails that the relationship between customary villages and official administrative village equally strong, in which both have autonomous rights, and at the same time carry out almost coincided responsibilities. changing policies of the national government were affected by the autonomy of village governments and their claims on customary, and communal property. 7 strengthening the existence of customary villages is recognized as part of a democratic framework in which the central government respects the unity of customary law that still exists and develops in indonesia. in bali, the regional autonomy regime has changed the political structures of the province. bali's eight districts and a municipality are now able to exercise strong authority to manage their own territory.8the existence of the customary villages in bali is still very strong. various religious ceremonies, livelihood activities and cultural preservation involve customary villages. every balinese living on the island of bali must become a member of adat (custom). 6i nyoman nurjaya, “sustainable cultural development: the future of balinesse adat village posterior the enactment of law number 6 year 2014 concerning village”, jurnal jatiswara, 33, no. 1(2018): 7. 7 jacqueline ac vel, and adriaan w. bedner. "decentralisation and village governance in indonesia: the return to the nagari and the 2014 village law." the journal of legal pluralism and unofficial law 47, no. 3 (2015):496. 8agung wardana, "debating spatial governance in the pluralistic institutional and legal setting of bali." the asia pacific journal of anthropology 16, no. 2 (2015): 109. the implications of village regulation toward the dualism of local leadership dynamics i nyoman subanda, i nyoman budiana and a.a.ngr eddy supriyadinata gorda the dualistic system of local leadership and nuances of central government intervention in village leadership continue until the issuance of law number 6 of 2014 concerning the village government. this law reflects government interference in uniforming villages throughout indonesia. the enthusiasm of various customary community groups or village-like communities in all regions of indonesia experienced very profound and fundamental changes. although the government carried out a process of uniformity and standardization of local leadership, in de jure, law number 6 of 2014 concerning village government still seems to provide an opportunity for the existence of customary government institutions (outside the official village government) to exist and be maintained in the lives of village communities. based on the de jure explanation above, it seems that the dualism of local leadership at the village level in indonesia is indeed given to grow and develop according to the demands and characteristics of the local community. the consequence of the dualism of local leadership gave rise to a variety of local leadership in bali. there are several variations of government found in bali which are the implications of the negaranisasi (the process of taking over a number of the state's roles and imitating the state in carrying out its duties) of local leadership, namely; first, in an official administrative village area consists of a customary village area; second, in an official administrative village area consists of several customary villages; third, several official administrative village areas are located in one customary village area; fourth, in an official administrative village, consists of several customary villages and some from another village. after the fall of orde baru, every region including bali repositioned the central government. in bali, a concrete step taken was to bring up the discourse of ajeg bali (preserve, create, and develop balinese culture) which sets the customary village as a foundation of hope for doing ideological revival. being made a customary village as a foundation of hope and at the same time as an idol of the balinese community was finally responded by the provincial government of bali. the provincial government of bali giving more authority to the customary villages and at the same time giving economic concessions in the form of 250 million assistance to each customary village in bali and a motorbike to all kelian (leader or head) of customary villages in bali. more authority and economic concessions given by the supra-local government to the customary villages were finally followed by the regencies and city government in bali. the great authority and attention are given by the supra-local government to the customary villages lately often make them take over various state roles. giving investment permits, controlling the population, regulating traffic order, and managing tourism destinations in the villages are some examples of the role of customary villages that have taken a udayana journal of law and culture vol. 4 no. 1, january 2020 43 number of state roles. pecalang as a traditional village equipment tool that originally played a role only around security in the implementation of customs now has more role as a state apparatus. regulating traffic, curbing the urban population, maintaining and participating in securing political party congresses are a number of concrete examples of the role of the state taken by pecalang. this is reaffirmed by ardana, that pecalang has a very important role, even becoming a permanent security section in every banjar (the smallest form of local government in bali) or desa adat activities such as securing the marriage and funeral ceremony, flood, fires, hurricanes and even traffic jams.9 1.2. purpose/research problem this research focuses on the phenomena of the dualism of local leadership in bali that addresses 4 questions, namely 1) what is the model and process of transformation in local leadership, especially in customary villages in bali? 2) what is the process and form of negotiation in local leadership, especially in customary villages in bali? 3) what are the competencies and roles of local leaders in the local leadership process in bali? 4) what are the roots of the problem, causes and solutions to handling horizontal conflicts in local leadership in bali? 1.3. method/research outline this study uses a descriptive qualitative approach with some data collection techniques: (1) observation, (2) in-depth interviews, (3) reviewing journal research documents that are relevant to this study. in qualitative descriptive research, the focus of researchers is to explore actual phenomena, and the nature of the data collected is more natural with rational analytical.10 the study was conducted in pedawa village, banjar district, buleleng regency, bali province, indonesia. informants at the location of this study consisted of the village chief pedawa, kelian adat (indigenous leaders) pedawa village, former secretary, former kelian adat village, former kelian dusun insakan, and local community leaders. the research was also conducted in dalung village, north kuta district, badung regency, bali province, indonesia. informants at the location of this study were the dalung village chief, village secretary, kelian adat dalung village, moslem, and christian community leaders. in addition to informants from the two villages, this study also used observer informants and indigenous researchers. they function as peer debriefing. the selection of research 9 i gusti gedeardana. pemberdayaan kearifan lokal masyarakat bali dalam menghadapi budaya global (denpasar: pustaka tarukan agung, 2007), 87-88. 10 burhan ashsofa. metode penelitian hukum, cet ke-3 (jakarta: rineka cipta, 2001), 57. the implications of village regulation toward the dualism of local leadership dynamics i nyoman subanda, i nyoman budiana and a.a.ngr eddy supriyadinata gorda locations is based on the consideration that pedawa village is a homogeneous village whose entire population is hindu. this village is an ancient village in bali. in contrast, the dalung village is a heterogeneous, multi-ethnic, multi-religious village (hinduism, islam, christianity, buddhism), and even balinese who are christian (generally balinese are hindu). data analysis in this study was carried out qualitatively, interactively and take place continuously to completion so that the data becomes saturated. data analysis was carried out in various steps as follows: (a) data reduction, data obtained from the results of field research are contained in a complete and detailed description or report. data were collected from field research conducted at the study site and various literature used in this study. the data was then reduced, summarized, selected for the main points, focused on the important things through the editing process. this reduction was carried out continuously during the research carried out, (b) presentation of data, the purpose is to make it easier to see the overall picture or certain parts of the research results. this section is the process of organizing data into a specific form to show parts in full, (c) drawing conclusions, the verification was carried out continuously during the research carried out, this section attempts to analyze and search for data collected through the process of looking for patterns, themes, similar relationships, other things that often arise, which are stated in conclusions that are still tentative leading to fundamental conclusions. 1.4. theoretical framework/literature review villages or other names have existed before the unitary state of the republic of indonesia was formed. as proof of its existence, explanation of article 18 of the 1945 constitution of the republic of indonesia (before the amendment) states that "within the territory of indonesia, there are approximately 250 "zelfbesturende landschappen" (indigenous government which gained its autonomy because of a number of agreements with the dutch east indies colonial government) and"volksgemeenschappen"(customary village), such as desa in java and bali, nagari in minangkabau , dusun and marga (clans) in palembang, and so on. these areas have an original structure and can, therefore, be considered as special areas. the republic of indonesia respects the position of these special regions and all state regulations concerning these regions will remember the rights of the origin of the region". therefore, its existence must still be recognized and given a guarantee of its survival in the unitary state of the republic of indonesia11 11 explanation of law number 6 of 2014 concerning villages. udayana journal of law and culture vol. 4 no. 1, january 2020 45 the normative provisions regarding villages in indonesia are regulated in law number 6 of 2014 concerning villages. 12 this law was prepared in the spirit of applying the constitutional mandate, namely the regulation of customary law communities in accordance with the provisions of article 18b paragraph (2) to be regulated in a government structure in accordance with the provisions of article 18 paragraph (7). nevertheless, the authority of the customary law community unit regarding the regulation of customary rights refers to the provisions of relevant sectoral legislation. with the construction of combining the function of the self-governing community with local selfgovernment, it is hoped that the customary law community unit which has been part of the village area, has been arranged in such a way as a village and customary village. the village refers to a term that is closely related to the control of the area by a group of people who have certain functions. villages as a place for community organizations have different terms. article 6 of law number 6 year 2014 concerning villages affirms (1) village consists of customary villages and villages. (2) the mention of desa or desa adat as referred to in paragraph (1) is adjusted to the mention applying in the local area. in balinese culture, there is a dualism of villages, namely desa adat or customary village and desa dinas or official administrative village. the official administrative village has the authority to regulate matters of state administration and the customary village refers more to matters of a religious and cultural nature.13 i dewa gede atmadja then explained that the term village in bali contained 2 (two) meanings, namely: (1) desa adat or customary village, a regional unit whose residents are jointly responsible (krama desa or villagers) conduct worship, with the intention of maintaining the purity of village land (grondmagis), as well as maintaining temples in a village. (2) desa dinas or official administrative village, a territory (regional) government. so it was formed by the government, and by law the regional government was given the label "autonomous village."14 the customary village has an identity as a communion element of customary law community, as well as having some of the characteristics 12 before the enactment of law number 6 of 2014, indonesia already had law number 5 of 1979 concerning village government established by the government in the new order era. both of these provisions have differences in legal politics. 13satrya, i. ketut teguh yudha, et al. "sinergi desa adat fan desa dinas falam pengelolaan aset desa untuk mewujudkan harmonisasi (studi pada desa adat dan desa dinas sambangan)." jimat (jurnal ilmiah mahasiswa akuntansi) undiksha 7, no. 1 (2017). 14 i dewa gede atmadja. awig-awig desa adat suatu analisis hukum tata negara, revitalisasi awig-awig desa adat (denpasar: fakultas hukum universitas udayana 2005), 9. the implications of village regulation toward the dualism of local leadership dynamics i nyoman subanda, i nyoman budiana and a.a.ngr eddy supriyadinata gorda that distinguish them from other social groups. 15 customary village is a community unit where a sense of unity as a traditional village citizen is bound by karang desa or a certain area with clear boundaries and is also bound by a system of prayer places called kahyangan tiga consisting of pura desa, pura puseh, pura dalem (three main temples in each village area in bali). in a customary village, of course, it has customary rules that regulate community order in the area of the customary village. 16 the existence of official villages depends on the will of the government, while the customary village is traditional institution from the community itself as an embodiment of customary institutions, which in relation to the government are led by customary leaders to actively participate in the implementation of government working programs that are channeled through the official administrative village.17 the official administrative village and customary village in bali are generally in a harmonious condition and there is a communication relationship between the elements of the official village and customary village in the structure of the government structure. the harmony of the official administrative village and customary village gave rise to the expression “one body of two heads”. in the relationship between the customary village and the official administrative village, it is necessary to watch out for the hegemony of customary village by state power personified by the official administrative village (kelurahan) as an extension of the state's hand.18 2. results and discussion 2.1. the dualism of local leadership in bali the existence of dualism in village governance in bali has become a distinctive characteristic and uniqueness in bali. the existence of customary villages, also called desa adat, is a customary government that has been around for generations. the existence of this customary village continues even though in the government system of the unitary state of the republic of indonesia, there are official administrative villages, as the smallest government scope in the country. even, with the rapid globalization driven by the rapid growth of the tourism industry, it is unable to eradicate the 15 sukawati lanang perbawa, "the implications of act no. 6 year 2014 on the village existence of adat village in bali1." international journal of research in social sciences 6, no. 2 (2016): 122-140. 16 i dewa herman yudiawan, "pendapatan desa adat: kontruksi hukum pungutan untuk mewujudkan bebas pungutan liar." jurnal magister hukum udayana (udayana master law journal) 8, no. 2 (2019): 249-260. 17i wayan surpha. (2002). seputar desa pakraman dan adat bali. denpasar: bali post, 30. 18i gusti ketut arya sunu. "harmonisasi, integrasi desa pakraman dengan desa dinas yang multietnik dan multiagama menghadapi pergeseran, pelestarian, dan konflik di bali." jurnal ilmu sosial dan humaniora 3, no. 2 (2014): 456. udayana journal of law and culture vol. 4 no. 1, january 2020 47 existence of customary villages in bali. they remain because they are related to the needs of the hindu community in bali in carrying out their spiritual and social life. the dualism of the village in bali can be illustrated in the following figure: chart 1 village in bali the dualism of the village government is actually no longer known in the indonesian national legal system. this is because both in law number 6 of 2014 concerning villages and law number 23 of 2014 concerning regional government do not distinguish the definitions of customary and official administrative villages. in both laws, the existence of villages, both official and customary villages, are defined as the legal community units that have territorial limits authorized to regulate and manage government affairs, the interests of local communities based on community initiatives, origin rights, and / or traditional rights which are recognized and respected in the system of government of the unitary state of the republic of indonesia. these provisions can lead to multiple interpretations of the understanding of autonomy possessed by each type of village, it can even produce its own polemic for balinese people given the different principles between these types of the village. for balinese people who are accustomed to the dualism of the village, in their perspective, the official village is an administrative village whose duties and authorities are related to the government. while the customary village is a community unit that has existed for a long time from generation to generation and is subject to customary law that has been mutually agreed upon. the customary village is not a government institution that submits to its superior government as an official administrative village. the implementation of authority based on original rights and authority on a local scale customary village is regulated and managed by the customary village by observing the principle of diversity.19 19 mulyanto, "keberlakuan uu no. 6 tahun 2014 tentang desa di bali dalam perspektif sosiologi hukum." mimbar hukum-fakultas hukum universitas gadjah mada 27, no. 3 (2015): 418-431, 425. village customary village official administrative village the implications of village regulation toward the dualism of local leadership dynamics i nyoman subanda, i nyoman budiana and a.a.ngr eddy supriyadinata gorda the legal change movement in indonesia by using legal pluralism as a foothold has gone far enough. one of them is the recognition of the rights of customary people, including the law in the constitution. 20 in the constitution, the existence of customary villages is recognized as stated in article 18b paragraph (2) of the 1945 constitution which states that "the state recognizes and respects customary law community units along with their traditional rights insofar as they are alive and in accordance with the development of society and the principle of the unitary republic of indonesia, which is regulated in law ". recognition of the existence of customary people as part of the state of indonesia has been stated in various laws and regulations. the recognitions are seen by the presence of phrases that mention "customary law communities" in the relevant laws and regulations, along with the forms of involvement. nevertheless, there are two things that need to be noted, namely: first, the recognition is still partial or sectoral, meaning that the recognition is only limited to certain sectors depending on the aspects regulated by the relevant laws and regulations; second, acknowledgments contained in the laws and regulations are still abstract and universal, meaning that to get recognition that is concrete-individual in nature it still needs to be determined by more specific norms.21 there is a dualism of the village in bali even though it has existed since the dutch colonial era which was regulated in legislation. however, until now dualism of the village in bali has not been able to explain the position of customary villages with official administrative villages or between customary villages with supra-local governments. the perpetuation of village dualism does not have to be interpreted that there is no conflict between them, because the data shows that the dualism of the village results in confusion and overlapping of the village in carrying out its functions. there are various activities that should be carried out by official administrative villages, but the fact is that customary villages participate in providing assistance in official activities. according to sunggono, the failure in implementing a policy can occur if in the context of the implementing structure, because of various problems related to the unclear division of authority and responsibility as well as the scope of tasks to be done. 22 for example related to the problem of structuring the population, controlling pedagang kaki lima or the street traders, urban arrangement and other administrative matters. in addition, 20 muhammad a. rauf. "politik hukum pembentukan desa adat dalam sistem pemerintahan di indonesia." de lega lata 1, no 2 (2016): 422. 21fahmiarisandi. "peran strategis pemerintah daerah dalam mengakui masyarakat hukum adat." jurnal surya keadilan: jurnal ilmiah nasional terbitan berkala fakultas hukum universitas muhammadiyah bengkulu 2, no. 1 (2018): 271-272. 22sunggono, b. hukum dan kebijaksanaan publik. (jakarta: sinar grafika, 1994), 149-153. udayana journal of law and culture vol. 4 no. 1, january 2020 49 pecalang also takes part in security matters outside of customary related activities, such as securing official inauguration, music event music, and others. this dualism then produces a variety of opinions in the community that can be elaborated into 4 (four) important points that must be studied, namely: 1. desiring that the atmosphere of village life in bali be left as it is. the official administrative village has the duty to take care of matters relating to government administration and development issues. meanwhile, the customary village handles matters relating to the implementation of balinese customs and hinduism. if there are obstacles in the implementation of tasks, the official administrative village will usually ask for assistance from the customary villages and leaders to resolve them. 2. desiring that the official administrative village be deleted and all matters at the village level are left to the customary village. this opinion arose as a reaction to disagreement over the domination of the official administrative village against customary villages in the bali region. the customary villages whose existence has taken root and become the lifeorder of the balinese people are taken away and their role was aside by the official administrative village. 3. desiring that the two types of villages may be maintained and live side by side like a married couple. note that there is a clear division between the two villages, especially those relating to the authority and budget provided for each village. thus, it is expected that there will not be an impression that the existence of official administrative villages is preferred over the customary villages. 4. desiring that there is only one type of village in bali area, namely the customary village led by bendesa adat or the customary leader. the customary village equipment is then divided into 2 (two) fields, namely the religious and customary fields, as well as the administrative sector, like nagari in the minangkabau of west sumatra. thus, the dualism of the village can be eliminated, and the existence of customary villages will take over all the tasks that have been carried out by the official administrative village in which prajuru desa adat or the officials of the customary village who handle the field of government administration. 2.2. negaranisasi of the customary village negaranisasi (the process of taking over a number of the state's roles and imitating the state in carrying out its duties) is one of the things that cannot be denied from rural conditions in indonesia today. in addition to changes in the rules of the village government, the state programs that enter the village are very diverse. negaranisasi in the context of traditional leadership that occurs in customary villages in bali, apart from state the implications of village regulation toward the dualism of local leadership dynamics i nyoman subanda, i nyoman budiana and a.a.ngr eddy supriyadinata gorda intervention, is also due to the influence of globalization. globalization in the context of this research is interpreted as a form of interaction between balinese people who are also the customary people and local, regional, or international outside parties. the era of globalization is the reason for the revival of cultural identity and local wisdom in various parts of the world.23 customary villages have a responsibility in facing multicultural communities and the development of a stream of modernization that enters traditional villages. it means that the paradigm changes that occur in the customary people are influenced by external influences that come from other villages in the same regency, other villages outside the regency, the village concerned and communities in other provinces to the international community.24 in the interactions that are influenced by globalization as described above, it has a broad and fundamental impact on the identity of customary villagers. the changes in self-identity have further implications for the orientation of the community or krama (villagers). with the ease of communication and the breadth of the environment of the village association, they allow krama desa or villagers to affiliate with various organizations centered outside the village so that the activities and social interactions carried out are often carried out with parties or people outside the village. the social activities that have been carried out with communities in customary villages often shift to social activities involving parties outside the village. as a concrete example of the shifting pattern of religious rituals such as ngaben masal (collective funeral ceremony), metatah (cutting teeth ceremony) which were previously done with fellow villagers, are now commonly done with various religious organizations, klen or soroh (clans) in which the religious ritual activities are carried out outside the village. in addition to these examples, it can also be seen that there has been a plurality of ethnic populations including the plurality of citizens, and the attraction between the interests of investors and the interests of the people of bali.25 based on the description above, the process of negaranisasi of the customary village actually does not always come because of natural intentions or processes but also because of government intervention in customary village leadership. the inclusion of customary village interventions against local entities or communities in bali includes traditional customary village communities, in addition to the desire of the 23 anak agung gede oka wisnumurti, and i. wayan rideng. "the development of bali tourism through cultural and local wishdom of pakraman village." journal of tourismology 3, no. 2 (2017): 38-43. 24 interview with gede widja, anthropologist from undiksha singaraja, april 16, 2019. 25 i gusti ngurah gorda. manajemen dan kepemimpinan desa adat di propinsi bali. (denpasar: widya kriya gematama,1999), 15. udayana journal of law and culture vol. 4 no. 1, january 2020 51 government to be able to control customary villages also because of the space provided by the customary peoples. this means that the strengthening of state domination in customary villages seems relevant because the customary people accept well even carry out happily. 2.3. competence and role of local leaders the existence of a customary village in bali is normatively regulated in the regional regulation of the province of bali number 4 of 2019 concerning customary villages in bali. according to article 1 number 8, customary villages is a unit of customary law community in bali which has territory, position, original arrangement, traditional rights, own assets, traditions, the social order of community life for generations in the bond of a holy place (kahyangan tiga or kahyangan desa). the duties and authorities and the right to regulate and manage their own households. the customary village is a legal subject in the system of governance in bali province. the customary village is a government unit that is managed by indigenous people and has the right to take care of the area and life of the community in the customary village environment.26 in the discourse of adat in bali, it seems that adat emerges as a uniform entity. in fact, adat has diverse characteristics, as in the community described here; claiming as the truly indigenous people of bali island, bali aga, bali mula or bali pegunungan.27 there are several types of customary village management structures in bali, namely the hulu apad structure model which is better known in customary villages categorized into bali age villages whose positions are in the mountainous areas or in very small highland areas affected by majapahit. the management structure of customary villages with the hulu apad system prioritizes the role of leaders of their seniority in the customary people, both in terms of age and marital status. from the educational status, mostly the leaders of this system do not have a high formal education level, which is senior high school level and below, and some of them cannot even read and write. this is very different from the customary village without hulu apad management structure located in the lowlands. the customary village leaders tend to be influenced by majapahit in which the way of determining the management or leader is a by-election, even though there are still some them using offspring and their educational status is relatively higher. by paying attention to the competencies possessed by the customary village structure using the hulu apad system, it is found that there are no 26 putu sugiantiningsih, i. made weni, and tommy hariyanto. "effect of bali province regional regulation number 4 of 2019 on pecalang organizations in bali." international journal of multicultural and multireligious understanding 6, no. 3 (2019): 728-734. 27 i. wayan suyadnya, "self-identification and repositioning of the tengananese in the discourse of adat community in bali." masyarakat: jurnal sosiologi (2019): 27-51. the implications of village regulation toward the dualism of local leadership dynamics i nyoman subanda, i nyoman budiana and a.a.ngr eddy supriyadinata gorda significant problems in the management of their villages. it means that all their tasks can be done properly such as carrying out related duties and responsibilities in the implementation of customs and religious rituals. village activities that have nuances of customs and habits are routine village activities in accordance with the customary calendar applying in the village carried out with the concept of togetherness of the leaders and village communities by prioritizing the spirit of consensus and harmony known as the gilik saguluk, paras paros sarpana ya, salunglung sabhayantaka. with such enthusiasm, the problem of the level of education possessed by village administrators is not significant in driving the implementation of customs and culture that live and develop in a village. the limitations of the capacity and competence of prajuru desa adat or the customary village officials are only felt, when dealing with outside parties, such as resolving disputes with other villages, having dialogue or discussing with the researchers or discussing with supra-local governments, and giving explanations to students, tourists and observers of various social problems that come to the village concerned. from a number of villages studied, it can be stated that customary villages in bali have a high intensity in interaction with outsiders such as the number of guests as researchers, students and of course the most guests are tourists, both domestic and foreign, regardless whether these customary villages are the tourist destination or not. the high intensity of prajuru desa adat interaction with outside parties, requires the customary village apparatus or instructors to enter a dialogue, discuss and provide explanations related to the potential and uniqueness of the village they have. therefore, there is a need for skills to convey information to stakeholders based on experience, insights, and knowledge that must be possessed by every customary village instructor. communication skills and the ability to solve problems faced both in the internal and external contexts of the village in the present era, such as the complexity of marital, inheritance, land and community affairs issues related to beliefs, and others, demand all prajuru desa adat improve their capacity and competence so that the various functions and responsibilities of traditional villages can be handled as well as possible. on the other hand, according to nugroho, to achieve leadership goals in the community, a local resource approach is needed, namely using a communication model that places individuals to actively participate in each momentum of activity in the community itself.28 28riant nugroho, otonomi daerah: desentralisasi tanpa revolusi; kajian dan kritik atas kebijakan desentralisasi di indonesia. (jakarta: elex media komputindo, 2004). udayana journal of law and culture vol. 4 no. 1, january 2020 53 2.4. potential conflict in the dualism of village in bali the intensity of the customary conflict in bali has been said to increase in the last decade, both in terms of quantity and quality. the increase in quality and conflict can be proven by the existence of a number of facts reported by mass media including the cases of the villages of semana, tegallalang, keramas, bangli, kemoning klungkung, pangkung karung, buleleng and so on. conflicts between residents and traditional villages, for example, are motivated by the decision of officials in the official administrative village that do not use village funds to improve traditional facilities. this decision was considered as an individual decision which eventually turned into a conflict between customary villages and individuals.29 the intensity of the conflict with the nuances of customary villages in bali still continues even with the intensity up to physical clashes. physical clashes that have occurred in the conflict of customary villages include the expulsion of residents from the village concerned, burning houses, and physical abuse. this condition has implications for the problem of official administrative in the village. from the various cases, there were even cases of customary villages with residents that could not be resolved by the local government, so they had to proceed to the court level. below is presented data on various conflict cases in several regencies in bali. table 1 conflict cases in several regencies in bali no conflict area villages in conflict conflict intensity conflict resolution 1 buleleng regency desa mekarsari social tension dialogue is facilitated by the regional government of buleleng desa sambangan expulsion of residents desa giri mas regional blockade desa sudaji social tension desa temukih physical clashes and expulsion of residents settlement to the high court level 2 klungkung regency desa sulang expulsion of residents dialogue is facilitated by the regional government of klungkung desa keramas social tension desa tusan incendiarism 3 gianyar regency desa tegalalang social tension settlement at the police level 29 interview with wayan p. windia, customary law expert at udayana university, interview on 17 october 2018. the implications of village regulation toward the dualism of local leadership dynamics i nyoman subanda, i nyoman budiana and a.a.ngr eddy supriyadinata gorda desa semana social tension desa guwang physical clashes desa sukawati social tension 4 bangli regency desa katung incendiarism settlement at the police level desa blantih physical clashes dialogue is facilitated by the regional government of bangli desa adat kawan physical clashes settlement at the police level desa susut social tension dialogue is facilitated by the regional government of bangli 5 karangasem regency desa asak social tension dialogue is facilitated by the main assembly of customary village the regional government of karangasem desa tianyar social tension desa kubu social tension desa nongan social tension source: bali police public relations (2019) a number of cases that occur can be used as a lesson to learn about the shape, type, and background of the cause. no less important is that stakeholders in the context of customary villages and official administrative villages are able to produce a solution that can restore the calmness, peace and progress to all villages in bali. the following are some examples of conflicts that occur between traditional villages and official administrative villages table 2 conflict cases between traditional villages and official administrative villages in bali no location conflict related parties description / solution 1 bungkulan. village, sawan customary villages and official administrative villages there is currently no meeting point, because of historical issues. the location that is still being debated is in the southern part of the two neighboring villages, namely between dauh muduk (bungkulan village) and banjar dangin yeh (giri emas village). the bungkulan village claimed that the area was part of the village administration, because there was an alit temple where most of the pangempon were the pakraman bungkulan village manners. udayana journal of law and culture vol. 4 no. 1, january 2020 55 2 munduk kunci official administrative villages and tegallinggah village customary villages and official administrative villages the conflict began with a commotion carried out by two young men because of old revenge, from the munduk kunci village and tegallinggah village, the commotion caused a dispute between the villagers concerned. sukasada district police invited both parties and their parents witnessed perbekel tegalinggah village, and kelian banjar munduk kunci, local police, and military personnel in tegalinggah village agreed to reconcile to resolve the misunderstanding in a family manner and promised not to repeat it, above a peace statement at the office of tegalinggah village. 3 desa sumberklampok customary villages and official administrative villages the prolonged land ownership conflict that occurred in sumberklampok buleleng village was finally taken over by the bali provincial government by creating a team consisting of regional government bureaucracies, members of the regional house of represenatives police and military personnels, district governments and related institutions that were considered important and competent aimed at to carry out data collection, measurement, mapping and resolution of the problems of the land of excultivation rights number 1, 2 and 3 in sumberklampok village. 4 desa gobleg customary villages and official administrative villages this is due to factors of confidence, village history, population, and related business or business potential. mediation efforts have been carried out by the government and assigned each village to show strong physical evidence. nevertheless, the government continues to strive to resolve village boundaries in a persuasive manner by promoting consensus among community leaders. source: bali police public relations (2019) the implications of village regulation toward the dualism of local leadership dynamics i nyoman subanda, i nyoman budiana and a.a.ngr eddy supriyadinata gorda the causes of conflict and violence can be explained by using the theory of structural conflict. one of the social scientists who develops this theory is ralf dahrendorf, known as a conflict sociologist because of his criticism of functional structure considered to ignore conflicts that are inherent parts of people's lives. dahrendorf proposes the following points: 1) every society always experiences a process of change, and the process of change is a symptom inherent in people's lives; 2) every society always shows the existence of conflict and disagreement (dissensus), social conflict is always present in people's lives; 3) every element of society contributes to the occurrence of disintegration and social change; 4) every society is integrated based on coercion by a number of people for a number of other people.30 the above social conflicts and changes stem from the struggle for the rare resources, resulting in uneven distribution of resources. as a result, in people's lives, there are groups of people who are capable of mastering material objects and groups who are unable to master material things. such conditions in marxist thought are caused by factors of production ownership, which give rise to the bourgeois class and the proletarian class which have no production factor. whereas the non marxist school views that conflict is caused by differences in authority, namely between groups that have authority and groups that do not have authority. in another view, haryatmoko, states that conflicts will be very easily triggered, especially those related to issues of power and injustice.31 conflicts that occur in society, according to dahrendorfstem from the existence of differences in the position of authority, in which one party is the dominant group that seeks to maintain the social structure through its legitimate authority and groups that do not have the authority (subjection) trying to make changes to the social conditions seized by the dominant group.32 customary villages and official villages in bali are faced with the phenomenon of globalization and modernization that have entered the village and the complexity of social problems that are increasingly high, including also dealing with very heterogeneous (multicultural) communities. based on the concept of conflict theory as outlined above, customary and socio-economic conflicts that occur in bali, between individuals, groups, banjar or customary villages and official administrative villages are actually not different from the theory, namely the unequal opportunity in the economic field, and the existence of dominant group dominating other groups and the existence of social change and cultural values shift. in the 30ralf dahrendorf. konflik dan konflik dalam masyarakat industri. (jakarta: rajawali, 1986). 31 haryatmoko. etika (politik dan kekuasaan). (jakarta: penerbit buku kompas, 2003), 65. 32 ralf dahrendorf, loc.cit. udayana journal of law and culture vol. 4 no. 1, january 2020 57 dynamics of society which is characterized by the rapid flow of globalization, democracy, science and technology such as the advancement of information and communication technology, have an influence on the desire of the individuals to fulfill their needs faster and even instantly. it causes social change, which affects the shift in cultural values. the sacred value turns profane, the value of togetherness shifts into individualistic, the value of religion changes to economic value such as the seizure of the pelaba pura (temple's belonging in the form of land); people no longer concerned with the village stakes or boundaries that have been set aside because of the economic interests. besides, there is the wrong understanding of democracy, that in any realm democracy, people can do everything even do anarchism. it can also be due to the occurrence of cultural lag and shock. the cultural lag is the condition of society called cultural backwardness, namely on one side of certain groups or groups of high educational and work ethic level so that they are economically well-established, while other groups are still classified as marginal because they are unable to adopt progress (one group with ethos of gamblers and other groups working hard and economically). the cultural shock is a condition of shock as a result of not being able to accept new institutions such as competitive, hard work and fast, disciplined, efficient-effective and accountable. as a result, there is little friction that results in emotional action that is very contrary to human and religious values. one of the thoughts that can used to prevent and even eliminate customary conflicts in bali is by revitalizing local wisdom that already has adhi-luhung (good) character based on the concept of bebrayan (community life), developing a polite personality in the diversity by always coordinating and integrating through balanced communication between various stakeholders including the administrative village. with a variety of local wisdom concerning various fields of life, it has been proven and tested its reliability for the balinese people in the face of scouring new values from within and outside the country. balinese people through village role models are also required to deepen the appreciation of local wisdom, in which wisdom is inseparable from religious philosophy, interpret and apply dynamically in facing the challenges of change while maintaining humanitarian principles so that the threat of disharmony between citizens of customary village and existing structures can be prevented. in addition, future state policies must be able to touch and benefit the lower classes of society in an open, honest and fair manner in accordance with the values of the pancasila. efforts to harmonize village dualism between customary and official administrative villages in bali are still on small scale. the implementation of activities related to research shows that most of the customary and official the implications of village regulation toward the dualism of local leadership dynamics i nyoman subanda, i nyoman budiana and a.a.ngr eddy supriyadinata gorda administrative villages in bali carry out their respective activities with harmony, respect and mutual cooperation. this is indicated by the results of interviews with customary and official administrative villages administrators in several villages in bali which stated that so far there had never been a conflict between customary and official administrative villages because they have their respective duties and support each other. in carrying out their respective duties, customary and official administrative villages complement each other in order to harmonize the program, vision, and mission of the village. just as when customary villages carry out customary or religious activities, the official administrative village provides assistance in the form of funds and others. the customary village will always support and succeed in village official work when implementing work programs that are aimed to increase the village economy. in its implementation between customary and official administrative villages, they are able to show solidarity and cooperation. therefore, the existence of village dualism in village governance in bali is not a threat to the harmony of the people in bali. 3. conclusion and recommendation the transformation of local leadership in bali has been going on for a long time even in the colonial era, the japanese government, the old order, and its peak occurred in the new order era. after the fall of the new order, a reformation era emerged that also seemed to bring considerable changes in local leadership in bali, in which customary villages and other traditional authorities were sufficiently strengthened and given a greater role by supralocal governments, both provincial and regency (district) or city governments. strengthening the position of customary villages and the role given by the supra-local government have implications for the strong bargaining position of the customary villages in the government as well as the citizens. the big role of customary villages and the strong bargaining position have a big influence on the occurrence of the negaranisasi process in customary villages. the negaranisasi referred to in this study is the process of taking over a number of state roles, carried out by customary villages in the village community, as well as the customary village process in imitating the state in carrying out its duties. the concrete examples of the take over the process of a number of state's roles is the role of customary villages in maintaining security through pecalang in securing and regulating traffic, controlling settlers, securing party congress activities and including other events. while the phenomenon of customary villages mimicking state authority is building security posts, holding and using pecalang cars for patrols like police, voting systems in determining or changing leaders that are previously done by consensus system. udayana journal of law and culture vol. 4 no. 1, january 2020 59 the competency of local leaders in both the official and customary village government seems to still be an obstacle in carrying out such heavy tasks. the number of laws and rules governing the village, and must be done by the village, as well as the system and model of financial management with a considerable amount, make the village government difficult to carry out. meanwhile, the educational level of the village government, both official and customary villages, is still dominated by senior high school and the equivalent education, and even some are still in junior high school and elementary school. besides, the abilities and skills possessed to carry out the tasks of financial management, village administration, handling various community issues are still far from adequate. the findings of various factors that cause conflict in villages, both official and customary villages, are on issues of coordination, adaptation to modernization, and various changing behaviors of the community. while the way to handle conflict is still relatively status quo, so many are irrelevant to resolve the issue, some even reach the court level. the limited ability and quality of resources in the village are also factors that cause conflict, as well as inhibiting factors in the process of dealing with conflict issues. a number of approaches that seem relevant for resolving conflicts and have been running now are cultural approaches as well as strong surveillance of citizens up to social isolation in bali called kasepekang. to maintain the existence of customary villages in bali in order to survive, separate regulations are needed that specifically regulate customary villages. however, the arrangement of leadership in customary villages is indeed inseparable from the leadership of the administration of the official administrative village, because the customary villages in bali are included in the scope of the state administration. in order to develop the customary villages in the future, it is time for them to be managed by human resources who have sufficient capacity to avoid conflicts in relation to the official administrative village. they also need clear funding allocations, both in terms of sources and uses, so that their village management activities become more directed and measurable within the framework of ensuring community welfare. bibliography book ardana, i gusti gede. pemberdayaan kearifan lokal masyarakat bali dalam menghadapi budaya global denpasar: pustaka tarukan agung, 2007. ashsofa, burhan. metode penelitian hukum, cet ke-3 jakarta: rineka cipta, 2001. the implications of village regulation toward the dualism of local leadership dynamics i nyoman subanda, i 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utarie4 1,3,4 faculty of law padjadjaran university, bandung, indonesia 2 faculty of islamic studies universiti kebangsaan malaysia, selangor, malaysia keywords abstract customer; deposit insurance; islamic economics; sharia banking. sharia banking's characteristic, which underpins its activities on sharia principles, requires a customer protection mechanism in accordance with its characteristics, including customer deposit insurance. this study aims to determine the readiness of sharia banking regulations on customer deposit insurance in indonesia to strengthen the protection mechanism for sharia banking customers. this article is a normative juridical research that applies an analytical descriptive approach. the insurance for customer deposits of sharia bank in indonesia is regulated explicitly in the regulation of deposit insurance corporation no. 1 of 2020 concerning the implementation of sharia bank deposit insurance and resolution. the regulation determines that deposit insurance must be carried out through a kafalah contract between the deposit insurance corporation and the customer. however, it does not yet provide a specific arrangement regarding the protection of deposits on social funds in sharia banking. in the future, it is necessary to have regulations related to deposit insurance for social funds in sharia banking in implementing the social functions of sharia banking, especially as sharia financial institutions-recipients of money waqf and arrangement of money waqf nazhir. doi https://doi.org/10.24843/uj lc.2023.v07.i02.p03 author e-mail 1 correspondence: nun.harrieti@unpad.ac.id 2 azlinalisa@ukm.edu.my 3 eidy.sandra@unpad.ac.id 4 fatmi.utarie@unpad.ac.id this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licen ses/by/4.0/) 1. introduction sharia banking, as part of the sharia economic system, underpins its activities on sharia principles which contain the values of justice, expediency, balance, and universality (rahmatan lil'alamin). in islamic economics, rahmatan lil'alamin philosophically is defined as a carrier of mercy to the universe which is manifested by implementing social interests such as endowments. 1 the position of rahmatan lil'alamin in islamic economics is very fundamental in order to create a just life and reduce social inequalities in human life. 2 provisions in the qur'an also regulate 1 hisam ahyani, memet slamet, and tobroni, “building the values of rahmatan lil'alamin for indonesian economic development at 4.0 era from the perspective of philosophy and islamic economic law,” al-ihkam: jurnal hukum dan pranata sosial 16, no. 1 (2021): 112. 2 ibid. https://doi.org/10.24843/ujlc.2023.v07.i02.p03 https://doi.org/10.24843/ujlc.2023.v07.i02.p03 mailto:nun.harrieti@unpad.ac.id mailto:azlinalisa@ukm.edu.my mailto:eidy.sandra@unpad.ac.id mailto:4%20fatmi.utarie@unpad.ac.id http://creativecommons.org/licenses/by/4.0/ http://creativecommons.org/licenses/by/4.0/ now and forward: customer deposit insurance of sharia bank in indonesia nun harrieti et al 160 economic, financial, constitutional and commercial issues that fall within the scope of the highest goal of islamic law (maqashid).3 these values are also applied in indonesia through the establishment of law no. 21 of 2008 concerning sharia banking (sharia banking law), which has specifically regulated sharia banking since its promulgation, including after the its amendment in 2023 through law no. 4 of 2023 concerning the development and reinforcement of the financial sector (development and reinforcement of the financial sector law). this law is omnibus in the financial services sector which amends not only the sharia banking law but also other laws in the financial sector that regulates the financial services authority bank indonesia, deposit insurance corporation, and capital market. one of the essential changes in this law is related to the social function of sharia banking in managing money waqf. initially, the position of sharia banking was only as a sharia financial institution recipient of money waqf (lks-pwu), which has the task of receiving money waqf deposits from the wakif, which is then handed over and managed by nazhir after the amendment of the sharia banking law, the position of sharia banking is not only as an lks-pwu but can also act as nazhir who directly manages money waqf funds collected from the public. referring to the provisions of waqf legislation in indonesia, the money waqf must be submitted through lks-pwu.4 lks-pwu only acts as money waqf recipient, issues a money waqf certificate, places the money waqf into savings based on a wadi’ah contract on behalf of nazhir, while managing the money waqf is nazhir’s responsibility.5 the position of sharia banking in carrying out its social functions has an impact on its deposit products which do not only come from general public funds but also come from social funds collected from the public. the public entrusts these funds to sharia banking and must be protected. applying islamic economic values in sharia banking operations can help maintain the bank's soundness level, which significantly impacts protecting customer funds. moreover, good banking performance has a significant impact on increasing investment and capital stock,6 so that the position of the bank as a wheel of the economy can be realized. historically, the concept of islamic banking had spread widely in indonesia since the beginning of the 1990s when bank muamalat indonesia became the first commercial bank that adopted islamic principles. 7 3 sami al-daghistani, the making of islamic economic thought (cambridge: cambridge university press, 2021), 130-131. 4 nun harrieti and lastuti abubakar, "the urgent need for the establishment of waqf bank: the case of indonesia," hamdard islamicus 43 (2020): 868. 5 ibid., 865 and 867. 6 mohammed ayoub ledhem and mohammed mekidiche, “economic growth and financial performance of islamic banks: a camels approach,” islamic economic studies 28, no. 1 (2020): 49. 7 see shahyb handyanto, monita astuti, and kevin ajiputra, “indonesia sharia bank merger process reviewed from business competition laws,” lex scientia law review 5, no. 1 (2021): 46, 51; and nur hidayah, moch. bukhori muslim, and abdul azis, "complying with sharia while exempting from value-added tax: murābaḥah in indonesian islamic banks," ahkam 22, no. 1 (2022): 65. udayana journal of law and culture vol. 7 no. 2, july 2023 161 currently, indonesia applies two banking systems, i.e., conventional banking and sharia banking.8 while law no. 7 of 1992 concerning banking and its amendments do not provide a definition related to conventional banks, the development and reinforcement of the financial sector law states that commercial banks are banks that carry out business activities conventionally and/or based on sharia principles which within their activities provides services regarding payment traffic. 9 sharia banking as part of the national banking system requires regulatory readiness support according to its characteristics. previous research found that regulatory variables have a very significant positive impact on the performance of sharia banks in the asian region.10 sharia banking has specificity compared to conventional banking, so that regulations separation between conventional banking and sharia banking is the appropriate and forward step to advance development and improve people's welfare. the particular main thing is the principle in carrying out its business activities. conventional banking underpins its activities on conventional economic principles, while sharia banking underpins its activities on sharia economic principles or sharia principles. the sharia principle in banking activities is based on a fatwa issued by an institution that has the authority to issue fatwas in the sharia sector, namely the national sharia council (dewan nasional syariah/dsn) under the indonesian ulama council (majelis ulama indonesia/mui). the ojk as a regulator in the banking sector (including sharia banking) has an obligation to ensure that the provisions contained in the dsn-mui fatwa can be transformed into formulations of legislation that have a legal force and are generally binding.11 the fatwas issued by the dsn-mui serve as a reference for the ojk in issuing regulations in the sector of sharia economics including in the regulation of sharia banking. as an act that regulates specifically sharia banking, this act regulates the issue of sharia compliance, whose authority lies with the mui, which is represented through the sharia supervisory board (dewan pengawas syariah/dps), which must be established at each sharia bank and sharia business unit (unit usaha syariah/uus). the duties of the dps are to provide advice and suggestions to the directors as well as supervise the bank's activities to comply with sharia principles. in other words, the dps’s primary obligation is to strictly supervise the application of sharia principle within all sharia banking activities.12 non-compliance by sharia banks in 8 nunung ghoniyah and sri hartono, "how islamic and conventional bank in indonesia contributing sustainable development goals achievement," cogent economics & finance 8, no. 1 (2020): 2. 9 law no. 4 of 2023 concerning the development and reinforcement of the financial sector, art. 14. 10 nafis alam, sara sophia binti zainuddin and syed aun r. rizvi, “ramifications of varying banking regulations on performance of islamic banks,” borsa istanbul review 19, no. 1 (2019): 49. 11 nun harrieti, “the use of hybrid contract in the innovation of islamic banking product,” hasanuddin law review 4, no. 1 (2018): 72. 12 niji mansour nomran and razali haron, “a systematic literature review on shari'ah governance mechanism and firm performance in islamic banking,” islamic economic studies 27, no. 2 (2020): 92. now and forward: customer deposit insurance of sharia bank in indonesia nun harrieti et al 162 implementing sharia principles can erode their reputation and affect their financial resilience. 13 sharia compliance as a priority for sharia banking including ethical and social issues as a measure to attract depositors to place their money in sharia banking.14 the specificity of sharia banking is also reflected in the legal relationship between it and its customers. the legal relationship will have different juridical consequences depending on the type of contract agreed between sharia banking and its customers. contracts used in sharia banking fundraising products in indonesia are wadi’ah and mudharabah.15 for example, in deposit products, the applicable principles in the form of savings are mudharabah and wadi'ah as specified in the dsn mui fatwa no. 02/dsn-mui/iv/2000 concerning savings. 16 in the codification of standard products and activities of sharia commercial banks and sharia business units issued by the ojk, it is determined that the contract used in savings products is a wadi'ah contract for savings. the juridical consequences of the contract affect the rights and obligations of each party, both sharia banking customers and sharia banking itself, including the customer deposit insurance mechanism. deposit insurance is a legally established and explicitly recognized system to protect certain deposit categories. the categories are placing funds in a bank within a specified maximum amount and the occurrence of a bank failure.17 islamic deposit insurance is defined as a system established with the shariah-compliant design features to protect depositors against the loss of their insured islamic deposits in the event that an islamic bank is unable to meet its obligations to the depositors.18 the institution that insurances customer deposits in indonesia is lps which was formed under law no. 24 of 2004 concerning deposit insurance corporation (lps law). 19 as of april 2023, total deposits at commercial banks and sharia commercial banks in indonesia have reached 511.66 million accounts. most of which are savings which cover 97.9% of the total savings account and the largest nominal deposits were in the types of 13 abderazak bakhouche, teheni el ghak, and mohammad alsihab, “does islamicity matter for the stability of islamic banks in dual banking system,” heliyon 8, (2022): 4. 14 keria kontot, jamil hamali, and firdaus abdullah, “determining factors of customers' preferences: a case of deposit products in islamic banking,” procedia social and behavioral sciences 224 (2016): 173. 15 regarding mudharabah, see azharsyah ibrahim and abdul jalil salam, "a comparative analysis of dsn-mui fatwas regarding murabahah contract and the real context application (a study at islamic banking in aceh)," samarah: jurnal hukum keluarga dan hukum islam 5, no. 1 (2021): 379, 387. 16 dsn-mui fatwa no. 02/dsn-mui/iv/2000 concerning savings, para. i.2. 17 djurdjica ognjenovic, deposit insurance schemes (switzerland: springer nature, 2017), 2. 18 islamic financial services board and international association of deposit insurers, “core principles for effective islamic deposit insurance system,” https://www.iadi.org/en/assets/file/core%20principles/iadiifsb%20cpidis_ifsb%20approved_05%20july%202021%20clean.pdf, 11. 19 this law was lastly amended by law no. 4 of 2023 concerning development and reinforcement of the financial sector. https://www.iadi.org/en/assets/file/core%20principles/iadi-ifsb%20cpidis_ifsb%20approved_05%20july%202021%20clean.pdf https://www.iadi.org/en/assets/file/core%20principles/iadi-ifsb%20cpidis_ifsb%20approved_05%20july%202021%20clean.pdf udayana journal of law and culture vol. 7 no. 2, july 2023 163 deposits which accounted for 36.7% of total deposits.20 the lps law was formed several years before the enactment of the sharia banking act, the only sharia-related article in the lps law is related to the implementation of the lps function in insure customer deposits and participate actively in maintaining the stability of the banking system according to their authority for sharia banks which is mandated to be further determined in government regulation. in 2020, lps stipulated a regulation no. 1 of 2020 on the implementation of sharia bank deposit insurance and resolution (plps 1/2020).21 the stipulation of the regulation was motivated by the regulation of the implementation of deposit insurance and bank resolutions regulated in the plps concerning the deposit insurance program, treatment of systemic banks experiencing solvency problems, solution of banks other than systemic banks experiencing solvency, and bank liquidation, still not fully accommodate the implementation of insurances and resolutions with sharia principles. 22 given the specifics and characteristics of sharia banking, it is necessary to carry out research on the readiness of regulation on deposit insurance to strengthen the protection for sharia banking customers in indonesia. according to sjafrudin (2020), countries’ application of a deposit insurance system generally aims to achieve financial stability.23 as revealed by adema, hainz, and rhode (2019), the united states of america and germany are the first countries to introduce deposit insurance system in 1933 and 1934 and subsequently continued by many countries to anticipate a banking crisis and to support the national financial stability and banking system.24 baehaqi, fahmi, and beik (2017) found that the application of the deposit insurance scheme has an impact by increasing the level of bank deposit. 25 it, therefore, has a significant influence against the implementation of the islamic banking intermediation function, which as a driving force for the economy. in addition, research conducted by aysan et al (2017) found that the deposit insurance reform has increased the market discipline in the turkish islamic banking sector. 26 in the period when islamic deposit insurance was introduced and compared with their conventional peers, the sensitivity of islamic depositors to bank risk was 20 indonesia deposit insurance corporation, “deposit distribution of commercial banks april 2023,” https://www.lps.go.id/documents/10157/197446/distribusi+simpanan+bank+umum+ap ril+2023_rev.pdf/074bbc3e-ae81-430a-a539-80eab1a1f784, 4. 21 see considering part of regulation of deposit insurance corporation no. 1 of 2020 concerning the implementation of sharia bank deposit insurance and resolution 22 ibid. 23 sjafruddin, “penerapan coverage limit sistem penjaminan simpanan pada perbankan syariah di indonesia” (master thesis, faculty of economy and business universitas islam negeri sunan kalijaga yogyakarta, 2020), 1. 24 joop adema, christa hainz, and carla rhode, "deposit insurance: system design and implementation across countries," ifo dice reports 17, no. 1 (2019): 43. 25 sofyan baehaqi, idqan fahmi, and irfan syauqi beik, “determining factors of deposit level of islamic bank in indonesia,” al-iqtishad 9, no. 2 (2017): 213. 26 ahmet faruk aysan et al, “islamic banks, deposit insurance reform, and market discipline: evidence from a natural framework,” journal finance service research 51 no. 2 (2017): 258. https://www.lps.go.id/documents/10157/197446/distribusi+simpanan+bank+umum+april+2023_rev.pdf/074bbc3e-ae81-430a-a539-80eab1a1f784 https://www.lps.go.id/documents/10157/197446/distribusi+simpanan+bank+umum+april+2023_rev.pdf/074bbc3e-ae81-430a-a539-80eab1a1f784 now and forward: customer deposit insurance of sharia bank in indonesia nun harrieti et al 164 annihilated. 27 further, supriyatni and nurjamil (2021) the urgency of handling non-performing financing in sharia banks in the development of indonesian found that non-performing financing has an impact on the banking system, the health of the bank and national economy, at a certain level it causes losses and bankruptcy.28 differs from the above studies, this research analyses the readiness of regulations on sharia banking deposit insurance in indonesia to strengthen sharia banking customer protection. this article is a normative juridical research that applies an analytical descriptive approach. it focuses on research on secondary data consisting of primary, secondary, and tertiary legal substances that reflect a positivist character of legal studies and.29 the analysis on legal theories represents a distinctive approach to conceptual issues.30 2. result and analysis 2.1. the implementation of sharia banking principles in indonesia sharia banking concerns both sharia banks and uus, including institutions, business activities, methods, and processes in carrying out their business activities. sharia bank is a business entity that collects funds from the public in the form of savings and investments and distributes them back to the public through financing, which bases all of its business activities based on sharia principles to improve the standard of living of the people. sharia banks must carry out both intermediation and social functions to support the implementation of national development to increase justice, togetherness, and equity of people's welfare. the intermediation function of sharia banks, in particular, upholds the sharia principles and refers to the fatwa issued by the dsn-mui. sharia banking applies social ethics that are inspired by sharia principles.31 in carrying out business activities, sharia banking adheres to sharia principles as a whole (kaffah) and is consistent (istiqomah), which lead to a sharia compliance towards public accountability:32 1. usury, illegal addition of income (batil), i.e., exchange of similar goods that are not of the same quality, quantity, and time of delivery (fadhl) or in lending and borrowing transactions that require the facility recipient customer return the funds received more than the loan principal due to the passage of time (nasi'ah); 27 ibid., 279. 28 renny supriyatni and nurjamil, "the urgency of handling non-performing financing in sharia banks in the development of indonesian sharia economics," padjadjaran journal of law 8, no. 1 (2021): 29. 29 see theresia anita christiani, “normative and empirical research methods: their usefulness and relevance in study of law as an object,” procedia social and behavioral science 219, (2015): 205; and pradeeep m.d., “legal research-descriptive analysis on doctrinal methodology,” international journal of management, technology, and social sciences (ijmts) 4, no. 2 (2019): 97. 30 see matyas bodig, legal doctrinal scholarship (cheltenham: edward elgar publishing limited, 2021), 13. 31 ishaq ahmad et al, “objectives of islamic banks: a massive from mission statements and stakeholders' perceptions,” journal of islamic accounting and business research 8, no. 3 (2017): 289. 32 law no. 21 of 2008 concerning sharia banking (sharia banking law), art. 2. udayana journal of law and culture vol. 7 no. 2, july 2023 165 2. maisir, transactions that are dependent on an uncertain situation and are chancy; 3. gharar, transactions with an unclear, not owned, and unknown object, or cannot be submitted at the time the transaction is made unless otherwise regulated in sharia; 4. haram, transaction in which the object is prohibited in sharia; or 5. zalim, transactions that cause injustice to the other party. sharia economic activity that contains the values of justice, togetherness, equity, and benefit are in line with the principles of economic democracy. 33 meanwhile, the precautionary principle is a guideline for managing a bank that must be adhered to in order to create a healthy, strong and efficient banking system in accordance with statutory provisions.34 in practice, disputes still occurred within the sharia banking sector, mainly due to defaults from debtors. this can be seen from the decisions of the situbondo religious court in 2017 and tasikmalaya religious court in 2020, in which the sharia banks claimed compensation for defaults committed by customers. therefore, banks should always adhere to banking principles to carry out their functions optimally and at the same time prevent the potency of disputes. the sharia bank intermediation function is carried out by collecting funds from the public through savings and investment products and then channeling these funds back to people through financing products. through this intermediary function, sharia banking can connect people who experience a surplus of funds with those who experience a lack of funds. people who experience a surplus of funds place their funds in savings and investment products in sharia banking. sharia banking then channels these funds to people who need more funds through financing products. through this intermediation function, sharia banking can turn the wheels of the economy, so it also acts as the economy's lifeblood. implementing such a function requires public trust.35 both conventional banking and sharia banking are mandated to perform the intermediation function. however, applying sharia principles to sharia banking causes the intermediary function to have its own characteristics that are different from conventional banking. table 1 below provides a comparison of the intermediation function in sharia banking and conventional banking: 33 ibid., explanation of art. 2. 34 ibid. 35 samreen ashraf, yasmin sekhon, and julie robson, “consumer trust and confidence in the compliance of islamic banks,” journal of financial services marketing 20, no. 2 (2015): 2. now and forward: customer deposit insurance of sharia bank in indonesia nun harrieti et al 166 table 1. intermediation functions comparison of sharia banking and conventional banking comparison element sharia banking conventional banking principle sharia principles, economic democracy, and the principle of prudence economic democracy and the precautionary principle customer deposit customer, investor customer, facility recipient customer debtor customer, creditor customer fundraising through savings and investment products that are free from elements of usury, haram, gharar, maisir, and injustice through savings products with an interest system fund distribution through savings and investment products that are free from elements of usury, haram, gharar, maisir, and injustice through credit with interest system source: abstracted from various sources36 table 1 describes that sharia principle becomes the differentiator between sharia banking and conventional banking. the principle limits the intermediation function of sharia banking free from elements of usury, haram, gharar, maisir and injustice, while conventional banking implements an interest system. customers who place their funds in sharia banking are divided into 2 (two), namely depositing customers and investor customers. it depends on the purpose of the placement of funds conducted by the customer. depositing customers are customers who place their funds in a sharia bank and/or uus in the form of deposits based on an agreement between the sharia bank or uus and the customer concerned. the contract used in savings products in sharia banking is the wadi’ah contract, for example current accounts and savings based on wadi’ah contracts. a wadi’ah contract is a contract used in sharia bank deposit products in the form of a deposit between the owner of the fund and the recipient of the deposit who is entrusted to maintain it.37 based on mudharabah contract, the customers in investment deposits act as rabbul mal who seek investment opportunities through a bank that acts as mudharib or fund manager.38 36 see sharia banking law, arts. 1, 2, 3 and law no. 7 of 1992 concerning banking (banking law). 37 see sharia banking law, art. 1 (20), (21), (22). 38 sri rahayu hijrah hati, sigit sulistiyo wibowo, and anya safira, “the antecedents of muslim customers' intention to invest in an islamic bank's term deposits: evidence from a muslim majority country,” journal of islamic marketing 12, no. 7 (2021): 1363. udayana journal of law and culture vol. 7 no. 2, july 2023 167 2.2. readiness of sharia banking customer deposit insurance regulations in indonesia the sharia banking law creates legal definitions regarding savings, current accounts, and time deposits. savings are defined as deposits based on a wadi’ah contract or investment funds based on a mudharabah contract or other contracts that do not conflict with sharia principles. its withdrawal can only be made according to specific agreed terms and conditions but cannot be withdrawn by cheque, transfer form (bilyet giro), and/or another equivalent instrument.39 current accounts are deposits based on wadi’ah contracts or other contracts that do not conflict with the sharia principles, which can be withdrawn at any time using cheques, transfer form, other means of payment orders, or by book-entry orders.40 time deposit is an investment of funds based on a mudharabah contract or other contracts that do not conflict with the sharia principles, the withdrawal of which can only be made at a particular time based on an agreement between the depositing customer and the sharia bank and/or uus.41 the difference in the agreement agreed between sharia banking, depositing customers, and investor customers generate a different juridical consequence for the parties, depending on the type of contract. savings, current accounts, and time deposits that are based on interest calculation are not justified by sharia. they are only justified if based on the mudharabah and wadi'ah principle.42 general provisions for fatwa dsnmui fatwa no. 01/dsn-mui/iv/2000 and dsn-mui no. 02/dsnmui/iv/2000 concerning savings stipulates that savings and current accounts based on wadi’ah are entrusted which can be taken at any time (on call) based on an agreement with no compensation required, except in the form of athaya, a voluntary gift, from a sharia bank. 43 wadi'ah is included in the tabarru contract 44 which is intended for the purpose of helping each other, while deposits are not allowed to based on wadi’ah contracts because deposits are included in the type of investment included in the tijarah contract which in this case is in the form of a mudharabah contract. based on mudharabah, savings, current accounts, and time deposits are a form of investment in which the investor customer acts as shahibul mal, the owner of the funds, and the sharia bank acts as mudharib, the fund manager. 45 sharia banks in their capacity as mudharib can carry out 39 sharia banking law, art. 1 (21). 40 ibid., art. 1 (22). 41 ibid., art. 1 (23). 42 see dsn-mui fatwa no. 02/dsn-mui/iv/2000 concerning savings, paras. i.1 and i.2; dsn-mui fatwa no. 01/dsn-mui/iv/2000 concerning giro, paras. i.1 and i.2; dsn-mui fatwa no. 03/dsn-mui/iv/2000 concerning deposit, paras. i.1 and i.2. 43 dsn-mui fatwa no. 02/dsn-mui/iv/2000 concerning savings paras. iii.1, iii.2, and iii.3. 44 tabaru contract means an agreement on non-profit transaction. see jamal abdul aziz and uus uswatusolihah, "the dichotomy between tabarru' and mu'awadah contracts: perspective of indonesia law of obligation," al-manahij 16, no. 1 (2022): 103. 45 hidayah, muslim, and azis, loc.cit. now and forward: customer deposit insurance of sharia bank in indonesia nun harrieti et al 168 various kinds of businesses that do not conflict with sharia principles and develop them as well, including mudharabah with other parties. capital must be stated in the amount in cash and not accounts receivable, while profit sharing must be stated in the form of a ratio and the account opening contract. the bank covers the operational costs of the savings as a mudharib using the profit ratio to which it is entitled. banks are not allowed to reduce a customer’s profit ratio without the approval of the person concerned. the relationship between the investor and the bank is based on the principle of profit and loss sharing, which is considered the cornerstone of sharia banking intermediation.46 the application of the profit and loss sharing mechanism starts with a deposit investment which is considered a form of equity investment with a limited duration.47 in principle, the general provisions for savings, current accounts, and time deposits are based on mudharabah in the dsn-mui fatwa no. 01/dsn-mui/iv/2000 concerning giro, 48 dsn-mui fatwa no. 02/dsnmui/iv/2000 concerning savings 49 and dsn-mui fatwa no. 03/dsnmui/iv/2000 concerning time deposits50 is the same because the contract is also the same, the only difference is in terms of the characteristics of savings, current accounts, and time deposits themselves, where savings which can be withdrawn directly and at any time, demand deposits which are withdrawn using cheque, transfer form, other means of payment orders, or by book-entry, and time deposits which can only be withdrawn at a certain time agreed between the sharia bank and the customer. apart from the intermediation function, sharia banking also performs a social function. article 4 of the sharia banking law stipulates that sharia banks can carry out social functions in the form of baitul maal institutions, namely receiving funds from zakat, infaq, alms, grants or other social funds and channeling them to zakat management organizations.51 sharia banks and uus can collect social funds originating from cash waqf and distribute them to the waqf manager (nazhir) according to the will of the waqf provider (wakif). in this case, the sharia bank acts as a sharia financial institutionrecipient of cash waqf (lks-pwu), which receives cash waqf funds and places it into a savings account based on the wadi’ah principle on behalf of nazhir. after the enactment of the development and reinforcement of the financial sector law, sharia banks act not only as lks-pwu, but also as nazhir who directly manage money waqf funds. the social function as one of the uniqueness of sharia banking should be seen as the selling point 46 hichem hamza, “does investment deposit return in islamic banks reflect pls principle?,” borsa istanbul review 16, no. 1 (2016): 32. 47 ibid. 48 dsn-mui fatwa no. 01/dsn-mui/iv/2000 concerning giro, para. ii. 49 dsn-mui fatwa no. 02/dsn-mui/iv/2000 concerning savings, para. ii. 50 dsn-mui fatwa no. 03/dsn-mui/iv/2000 concerning deposit, para. ii. 51 regarding baitul mal, see erisa ardika prasada, joni emirzon, and kn. sofyan hasan, "philosophy to strengthen baitul maal wat tamwil law in indonesia,” sriwijaya law review 4, no. 2 (2020): 272 and mahdi syahbandir et al, "state authority for management of zakat, infaq, and sadaqahas locally-generated revenue: a case study at baitul malin aceh," al-ihkam: jurnal hukum dan pranata sosial 17, no. 2 (2022): 558, 562. udayana journal of law and culture vol. 7 no. 2, july 2023 169 of sharia banking itself. 52 furthermore, social functions through the distribution of zakat, infaq, alms, and endowments can have a multiplier effect on the financial performance of sharia banking.53 economic activity is facilitated by a bank service as an intermediary institution to meet the investment and liquidity needs of economic actors in the financial system. 54 deposits and investment funds of depositing customers and investor customers must be protected in accordance with the consequences of the contract agreed between the sharia bank and the customer. wadi'ah and mudharabah contracts provide different rights and obligations for the parties involved (sharia banks and customers), which correlates with the deposit insurance mechanism of the sharia bank. moreover, social funds placed in sharia banking deposits are crucial to protection. the national sharia council-indonesian ulama council (dsn-mui) has issued several fatwas related to insure deposits of sharia bank customers namely dsn-mui fatwa no. 118/dsn-mui/ii/2018 concerning guidelines to insure sharia bank customer deposits (dsn-mui fatwa no. 118/dsnmui/ii/2018) and dsn-mui fatwa no. 130/dsn-mui/x/2019 concerning guidelines for deposit insurance corporation in handling implementation or settlement of sharia banks experiencing solvability problems (dsn-mui fatwa no. 130/dsn-mui/x/2019). it is stated in the fatwa that wadi’ah is customer deposits in the form of deposits that may be used by sharia banks and must be returned at any time once it is required. wadi’ah is a pure deposit from one party to another which must be guarded and returned whenever the depositary wants it.55 likewise with sharia banks as recipients of deposits (wadi), they are obliged to maintain the integrity of these deposits. mudharabah is a business cooperation contract between the capital owner (shahibul mal), who provides all the capital, and the manager (mudharib). the business profits are shared between them according to the ratio as agreed in the contract. general provisions of the dsn-mui fatwa no. 118/dsn-mui/ii/2018 stipulates that lps is a legal entity established under law with a function to insure bank customer deposits and play an active role in maintaining the stability of the banking system in accordance with its authority.56 this fatwa underlines that the insurance is carried out by lps, which is determined in accordance with statutory regulations. the lps law determines that the deposit insurance corporation carries out 2 (two) functions, namely to insure deposits of depositors and actively participate in maintaining the banking system's stability in accordance with their authority. lps may issue 52 sulhani, abdul mughni, “menyingkap fungsi sosial perbankan syariah dan pengaruhnya terhadap kinerja keuangan,” jurnal perbankan syariah 3, no. 2 (2022): 87. 53 ibid. 54 saira ghulam hasan and waeibrorheem waemustafa, “the funding liquidity risk and bank risk: a review on the islamic and conventional banks in pakistan,” hamdard islamicus 43, no. 1 (2020): 85. 55 murniati ruslan, “islamic perspectives on the implementation of wadi’ah products at islamic banks in indonesia,” journal of economics, management and trade 27, no. 9 (2021): 39. 56 dsn-mui fatwa no. 118/dsn-mui/ii/2018 concerning guidelines for insurancing sharia bank customer deposits, para. i.1. now and forward: customer deposit insurance of sharia bank in indonesia nun harrieti et al 170 policies to actively participate in maintaining the banking system's stability; formulate, determine, and implement policies for settling bank resolution that does not have a systemic impact; and carry out the management of collapsed banks with systemic impacts.57 the lps authorities are:58 1. determine and collect guarantor premiums; 2. determine and collect contributions when the bank becomes a participant for the first time; 3. manage the assets and liabilities of the lps; 4. obtain customer deposit data, bank health data, bank financial statements, and bank inspection reports as long as they do not violate bank secrecy; 5. to reconcile, verify and/or confirm the data; 6. determine the terms, procedures, and conditions for claims payment; 7. appoint, authorize, and/or assign other parties to act for the interests of and/or on behalf of lps to carry out certain tasks; 8. conduct counseling to the bank and the public regarding deposit insurance; and 9. impose administrative sanctions. lps, in insuring deposits of sharia bank customers, also continues to collect premiums and contributions from sharia banks, as regulated in plps 1/2020. every bank conducting business activities in the territory of indonesia is required to become a deposit insurance participant by lps. it was found that the introduction of sharia deposit insurance schemes has substantially dampened the sensitivity of depositors against the capitalization of sharia banks. 59 the presence of lps on the deposit guarantee scheme at sharia banks is expected to impact public trust positively. deposits referred to in this context are funds entrusted by customers to sharia banks in accordance with applicable laws and regulations, whether in the form of demand deposits, savings, time deposits, certificates of deposit, or other forms. the meaning of savings is not similar in sharia banking law and dsn-mui fatwa no. 118/dsn-mui/ii/2018. the sharia banking law differentiates customer deposits through deposits and investments. article 1 (20) of the sharia banking law determines that deposits are funds entrusted by a customer to a sharia bank and/or uus based on a wadi'ah akad or other akad that does not conflict with sharia principles in the form of savings, current accounts, or other equivalent. further, article 1 (24) of the sharia banking law states that investments are funds entrusted by customers to sharia banks and/or uus based on mudharabah contracts or other contracts that are not against sharia principles in the form of deposits, savings, or other equivalent forms. therefore, savings referred to in this fatwa also covers the definitions of savings and investments referred to in the sharia banking law. 57 lps law, art 5 (2). 58 lps law, art 6 (1). 59 aysan et al, op.cit., 280. udayana journal of law and culture vol. 7 no. 2, july 2023 171 differing from the definition stipulated in sharia banking law, dsnmui fatwa no. 118/dsn-mui/ii/2018 stipulates that the insurance carried out by lps on deposits of sharia bank customers must comply with the fatwa provisions. the study of the sharia insurance blueprint makes this fatwa become the basis for implementing bank customer deposit insurance based on sharia principles, especially in the aspect of compliance. the provisions of this fatwa stipulate that the principle used by the lps in underwriting sharia deposits is based on the kafalah principle, where the s as the guarantor (kafil). sharia banks as recipients of customer deposits (makful 'anhu) are required to pay contributions/premiums to lps, customers depositing funds in sharia banks as makful lahu (insuranced parties), and customer deposits in sharia banks as makful 'alaih/bihi (collateral objects). sharia banks are required to pay contributions and premiums in accordance with statutory provisions, and lps are required to pay customer deposit claims in accordance with the object of sharia deposit insurance. lps, for consideration of benefit, may not pay sharia deposit insurance claims if customer deposits meet the criteria of being unfitted to pay, as follows:60 1. the customer's deposit data is not recorded at the bank; 2. the depositing customer is the party who benefits unreasonably, and/or; 3. depositors are parties that cause the bank to become unsound. provisions related to the kafalah principle are stipulated in the dsnmui fatwa no. 11/dsn-mui/iv/2000 concerning kafalah. kafalah contract is insurance given by the guarantor (kafil) to a third party to fulfill the obligations of the second or borne party (makfuuul 'anhu, ashil). the kafalah contract is a guaranteed contract that is widely used in sharia banking, kafalah is versatile in its modern usage and provides benefit to both banks and customers, depending on the way the concept is used. statements of consent and qabul in a kafalah contract must be stated by the parties to show their will in entering into a contract and in the kafalah contract the guarantor (kafil) can receive a fee as long as it is not burdensome, the kafalah in return is binding and cannot be canceled unilaterally. sharia deposit insurance provisions in the dsn-mui fatwa no. 118/dsn-mui/ii/2018 stipulates that sharia banks are required to pay premiums as rasm al-isytirak which are paid for a certain period according to laws and regulations. it is stated in the fatwa that the premium is the amount of money received by the lps based on the law as rasm alidariyah for the deposit insurance program, the provisions of this fatwa do not explain further regarding rasm al-idariyah nor in plps 1/2020 which also provides the exact definition of premium as the dsn-mui fatwa no. 118/dsn-mui/ii/2018. according to laws and regulations, the term rasm al-isytirak is compulsory premiums paid for a certain period.61 idic invests these premiums and contributions by placing them in sharia financial 60 plps 1/2020, art. 6 (1). 61 dsn-mui fatwa no. 118/dsn-mui/ii/2018 concerning guidelines for deposit insurance sharia bank customers, para. iv.1. now and forward: customer deposit insurance of sharia bank in indonesia nun harrieti et al 172 instruments in accordance with the laws and regulations, where the recording and management must be separated from conventional banks considering that lps provides insurance for conventional bank customer deposits and sharia banks. premiums are paid by sharia banks 2 (two) times in 1 (one) year, namely no later than january 31 for the period january 1 to june 30 and no later than july 31 for payments for the period july 1 to december 31.62 premiums from sharia banks are paid through the lps account determined by the lps chief executive. 63 participation contributions, sharia bank premiums and conventional bank premiums calculated from uus are managed by lps based on sharia principles by placing them in sharia financial instruments in accordance with the provisions of laws and regulations.64 payment of insurance claims for customers of sharia banks or uus customers from conventional banks whose business license has been revoked using funds originating from participation and premium contributions, including the results of their management.65 sharia deposit insurance based on dsn-mui fatwa no. 118/dsnmui/ii/2018 may only be made on mudharabah capital (ra's al-mal) and profit sharing that has become the customer's right but not yet paid until the business license and wadi’ah principal are revoked (mablagh al-wadi'ah) and bonuses that have been determined by the bank to be the right of the customer but have not been paid until the business license is revoked.66 this is in line with article 5 plps 1/2020 which stipulates that the value of deposits insuranced by lps includes the balance on the date of revocation of the bank's business license. the balance is in the form of capital (ra's al-mal) mudharabah madhmunah and profit sharing that has become the customer's right but has not been paid until the bank's business license is revoked, and wadi'ah principal (mablagh al-wadi’ah) and bonuses that have been paid to customers until the bank's business license is revoked. deposits based on sharia principles that are insuranced include:67 1. demand deposits based on wadi’ah contracts; 2. demand deposits based on mudharabah contracts; 3. savings based on wadi’ah contracts; 4. savings based on mudharabah muthlaqah contracts or mudharabah muqayyadah contracts whose risks are borne by the bank; 5. deposits based on a mudharabah muthlaqah contract or a mudharabah muqayyadah contract whose risks are borne by the bank; and/or 62 lps law, art 12 (1). 63 plps 1/2020, art. 4 (1). 64 plps 1/2020, art. 7. 65 plps 1/2020, art. 8 (1). 66 dsn-mui fatwa no. 118/dsn-mui/ii/2018 concerning guidelines for deposit insurance sharia bank customers, paras v.1 and v.2. 67 plps 1/2020 art. 3 (1). udayana journal of law and culture vol. 7 no. 2, july 2023 173 6. deposits based on other sharia principles determined by lps after receiving ojk consideration including incoming transfers and outgoing transfers. since 13 october 2008, until now, the insurance balance for each customer at one bank is a maximum of idr 2.000.000.000,(two billion rupiahs) or equivalent to 133.333 usd (one hundred thirty-three thousand three hundred and thirty-three usd). 68 if the customer has a deposit amount above two billion rupiahs, it will be settled by the liquidation team based on the liquidation results of bank assets.69 this can be detrimental to customers, considering that sharia banking does not only carry out intermediary functions but also social functions, one of which acts as lks-pwu and money waqf nazhir, where the collection of cash waqf funds is carried out through savings products at sharia banks in the name of nazhir based on the wadi’ah principle. considering that these funds are social funds entrusted by the public is through sharia banking, extra protection is needed so that there are no social funds that lps does not insure because they exceed the maximum insurance deposit value. it then needs to be resolved based on the liquidation of bank assets which is time-consuming, and the results may not fully cover the entire value of existing deposits. moreover, cash waqf funds are mandated to be preserved and eternal. sharia banking does not only have a theological mission as the enforcement of sharia values in banking financial activities, but also has a social mission to achieve economic prosperity. 70 this mission is reflected within its intermediary and social function so that the deposit insurance must be able to cover both of these aspects. 3. conclusion the readiness regarding insurance for customer deposits of sharia bank in indonesia is regulated explicitly in the deposit insurance corporation regulation no. 1 of 2020 concerning the implementation of insurance and resolutions of sharia bank. the deposit insurance mechanism is carried out through a kafalah contract between the deposit insurance corporation and the customer to fulfill the obligations of sharia banks over customer deposits in sharia banks as an object of insurance to customers with a maximum nominal insurance of two billion rupiahs. the above regulation does not yet provide a specific arrangement regarding the protection of deposits on social funds in sharia banking. in the future, it is necessary to have regulations related to deposit insurance for social funds in sharia banking in relation to the implementation of the social functions of sharia banking, especially as lks-pwu and money waqf nazhir, considering that the funds placed in sharia banking savings products are the community social funds that must be preserved. 68 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"state authority for management of zakat, infaq, and sadaqahas locally-generated revenue: a case study at baitul malin aceh." al-ihkam: jurnal hukum dan pranata sosial 17, no. 2 (2022): 554-577. https://doi.org/10.19105/al-lhkam.v17i2.7229 thesis sjafruddin, "penerapan coverage limit sistem penjaminan simpanan pada perbankan syariah di indonesia." master's thesis, faculty of economy and business universitas islam negeri sunan kalijaga yogyakarta, 2020. legal documents indonesia. law no. 7 of 1992 concerning banking. indonesia. law no. 24 of 2004 concerning deposit insurance corporation. indonesia. law no. 21 of 2008 concerning sharia banking. indonesia. law no. 4 of 2023 concerning the development and reinforcement of the financial sector. https://doi.org/10.1108/ies-05-2020-0016 https://doi.org/10.47992/ijmts.2581.6012.0075 https://doi.org/10.1108/prr-01-2019-0001 http://dx.doi.org/10.28946/slrev.vol4.iss2.418.pp270-284 https://doi.org/10.1108/ies-06-2019-0013 https://doi.org/10.2991/iconies-18.2019.56 https://doi.org/10.9734/jemt/2021/v27i930366 https://doi.org/10.22304/pjih.v8n1.a2 https://doi.org/10.19105/al-lhkam.v17i2.7229 udayana journal of law and culture vol. 7 no. 2, july 2023 177 indonesia. regulation of deposit insurance corporation no. 1 of 2020 concerning the implementation of sharia bank deposit insurance and resolution. other documents dsn-mui fatwa no. 01/dsn-mui/iv/2000 concerning giro. dsn-mui fatwa no. 02/dsn-mui/iv/2000 concerning savings. dsn-mui fatwa no. 03/dsn-mui/iv/2000 concerning time deposits. dsn-mui fatwa no. 11/dsn-mui/iv/2000 concerning kafalah. dsn-mui fatwa no. 118/dsn-mui/ii/2018 concerning guidelines for insurancing sharia bank customer deposits. islamic financial services board and international association of deposit insurers. “core principles for effective islamic deposit insurance system.” https://www.iadi.org/en/assets/file/core%20principles/iadiifsb%20cpidis_ifsb%20approved_05%20july%202021%20clean.p df lembaga penjamin simpanan. "cetak biru penjaminan syariah: implementasi fatwa no. 118/dsn-mui/2018 tentang penjaminan syariah.” https://www.lps.go.id/documents/604798/0/research+working+pap er++cetak+biru+penjaminan+syariah+implementasi+fatwa+nomor+1 18-dsn+mui-2018+tentang+penjaminan+syariah.pdf/9871db594a2e-42fc-a6bf-31624565bed7 indonesia deposit insurance corporation. "deposit distribution of commercial banks april 2023." https://www.lps.go.id/documents/10157/197446/distribusi+simpa nan+bank+umum+april+2023_rev.pdf/074bbc3e-ae81-430a-a53980eab1a1f784 case law tasikmalaya religius court. decision no.1224/pdt.g/2017/pa.tmk, (pt. sharia people's financing bank v. agus kusdiana, lilis fitriani), 2017. situbondo religious court. decision no.01/pdt.g.s/2020/pa.sit (pt. sharia people's financing bank situbondo v. the defendants), 2020. website content lembaga penjamin simpanan. “simpanan yang dijamin.” https://www.lps.go.id/simpanan-yang-dijamin https://www.iadi.org/en/assets/file/core%20principles/iadi-ifsb%20cpidis_ifsb%20approved_05%20july%202021%20clean.pdf https://www.iadi.org/en/assets/file/core%20principles/iadi-ifsb%20cpidis_ifsb%20approved_05%20july%202021%20clean.pdf https://www.iadi.org/en/assets/file/core%20principles/iadi-ifsb%20cpidis_ifsb%20approved_05%20july%202021%20clean.pdf https://www.lps.go.id/documents/604798/0/research+working+paper++cetak+biru+penjaminan+syariah+implementasi+fatwa+nomor+118-dsn+mui-2018+tentang+penjaminan+syariah.pdf/9871db59-4a2e-42fc-a6bf-31624565bed7 https://www.lps.go.id/documents/604798/0/research+working+paper++cetak+biru+penjaminan+syariah+implementasi+fatwa+nomor+118-dsn+mui-2018+tentang+penjaminan+syariah.pdf/9871db59-4a2e-42fc-a6bf-31624565bed7 https://www.lps.go.id/documents/604798/0/research+working+paper++cetak+biru+penjaminan+syariah+implementasi+fatwa+nomor+118-dsn+mui-2018+tentang+penjaminan+syariah.pdf/9871db59-4a2e-42fc-a6bf-31624565bed7 https://www.lps.go.id/documents/604798/0/research+working+paper++cetak+biru+penjaminan+syariah+implementasi+fatwa+nomor+118-dsn+mui-2018+tentang+penjaminan+syariah.pdf/9871db59-4a2e-42fc-a6bf-31624565bed7 https://www.lps.go.id/documents/10157/197446/distribusi+simpanan+bank+umum+april+2023_rev.pdf/074bbc3e-ae81-430a-a539-80eab1a1f784 https://www.lps.go.id/documents/10157/197446/distribusi+simpanan+bank+umum+april+2023_rev.pdf/074bbc3e-ae81-430a-a539-80eab1a1f784 https://www.lps.go.id/documents/10157/197446/distribusi+simpanan+bank+umum+april+2023_rev.pdf/074bbc3e-ae81-430a-a539-80eab1a1f784 https://www.lps.go.id/simpanan-yang-dijamin 52 appropriating public private partnership in senior high school program: a socio-cultural approach to policy making peter g. romerosa* school of education, arellano university, manila, philippines 1. introduction 1.1. background consistent with article 28 of the convention of the rights of the child1 which asserts that states parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, the * e-mail/corresponding author: peterromerosa8888@gmail.com 1 the philipines ratified this convention in 1990. https://treaties.un.org/pages/viewdetails. aspx?src=ind&mtdsg_no=iv-11&chapter=4&lang=en#11 with the ratification, the philipines was entrusted with the mission to “…undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the convention. see “the philippines and the convention on the rights of the child”, http://bangkok.ohchr.org/news/crc.aspx. abstract the implementation of the senior high school program in the philippines illuminates the state’s response to the changing landscape of the global market economy. its salient features focus on the additional two year-senior high school program which highlights the development of middle level skills for national development and global competitiveness. in order to concretize the implementation of the program, the state entered into collaboration with the private schools which is commonly known as public private partnership (ppp). in this collaboration, the government provides the guidelines and financing while the private educational institutions provide the academic service. framed from a socio-cultural approach to policy making in education, this study aimed to unpack a particular implementation of ppp of a private institution in an urban area, examine the institutional policies that were created in response to ppp, and interrogate the impacts of these policies on micro social processes. using interviews and focus group discussions for methodology, the researcher drew narratives and insights from on-the-ground actors. further, the investigation looked into how authorized policy actors (school administrators) and nonauthorized policy actors (teachers, parents, and students) are appropriating policies within the operational framework of the ppp in the implementation of the senior high school program. the results demonstrated that multi-layered appropriation and exercise of the agency were explicitly and implicitly deployed in diverse social spaces by actors as a pragmatic and creative response to the new educational arrangement. the paper provides a lens to further develop understanding on how policy appropriation and production from the local context can inform institutional approaches in facilitating relevant student experience within the realm of ppp in education. keywords: public private partnership, socio-cultural approach, policy, education, the philipines. how to cite (chicago-16th): romerosa, peter g. “appropriating public private partnership in senior high school program: a socio-cultural approach to policy making.” udayana journal of law and culture 2, no. 1 (2018): 52-72. https://doi.org/10.24843/ujlc.2018.v02.i01.p03. doi: https://doi.org/10.24843/ujlc.2018.v02.i01.p03 vol. 02, no. 1, january 2018, 52-72 udayana journal of law and culture vol. 02 no.1, january 2018 53 1987 philippine constitution mandates that the state shall establish and maintain a system of free public education in the elementary and high school levels.2 with the enhanced basic education act of 2013, the government expanded the basic education system from 10 years to 1 year of kindergarten, 6 years of elementary school, 4 years of junior high school, and 2 years of senior high school (hereinafter, shs).3 in general, this bold educational reform is the government’s approach to achieve inclusive growth by investing in human capital formation in order to reduce poverty and meet national development. its salient feature focuses on the additional two-year senior high school program where a student selects a course track or specialization based on his or her ability, interest, and socio-economic capacity. a huge number of high school graduates do not pursue college education due to poverty. as a result, shs was conceived to capacitate students with middle level skills (i.e., technical, vocational, and entrepreneurial skills) in preparation for employment. such paradigm shift in education entails subscribing to the twelve-year basic education global standard and also ensures that graduates of philippine education will be globally competitive in terms of knowledge and skills. fraught with the lack of teaching force and limited physical infrastructure to accommodate grade 10 completers from the public school system, the state entered into a collaboration with private schools in providing academic service for the additional two-year senior high school program for public school grade 10 completers. construed in multifarious meanings across scales (transnational, national, local), this study follows the notion of public private partnership (hereinafter, ppp) as utilized by the world bank and organization for economic cooperation and development (2008), which include (i) management and support services; (ii) operational services; (iii) infrastructure; the focus is primarily on those ppp’s where the government guides policy and provides financing while the private sectors deliver the services to students. similarly, ppp is an arrangement for the private sector to deliver infrastructure services for the public sector or to assist the public sector in its task of delivering infrastructure services to the public.4 this is articulated in the department order no.88 s 2010 of the department of education (hereinafter, deped) asserting that the state recognizes the complementary roles of public and private institutions in the educational system and shall 2 article xiv section 2 (2) of the 1987 constitution of the republic of the philippines, http://www. officialgazette.gov.ph/constitutions/1987-constitution/ 3 section 4 of the republic act no. 10533 an act enhancing the philippine basic education system by strengthening its curriculum and increasing the number of years for basic education, appropriating funds therefor and for other purposes (enhanced basic education act of 2013), http://www.officialgazette.gov.ph/2013/05/15/republic-act-no-10533/ 4 jeffrey delmon. public private partnership projects in infrastructure: an essential guide to policy makers. (cambridge: cambridge university press, 2011), 7. 54 exercise reasonable supervision and regulation of all educational institutions.5 in practice, deped tapped private schools to provide the service for the senior high school program for grade 10 completers from public schools through the voucher program. the voucher program is intended for grade 10 (junior high school) completers who wish to pursue senior high school (shs) education in non-deped schools such as private high schools, colleges, and universities; local universities and colleges (luc); state universities and colleges (sucs); and technical and vocational schools, starting sy 2016-2017. hence, this global and state approach to education has direct and indirect impacts on diverse social spaces from the global landscape (i.e., relations between the state and education, the functions of educational institutions, and cultural reproduction) down to the micro-social processes (i.e., student participation, teacher’s performance and disposition, leadership styles, parents’ involvement, and the relationship among these actors). this paper unpacked these issues by looking into the contextual application ppp in a particular setting. 1.2. purpose of research this investigation attempted to provide an analysis on how the technocratic approach to education policy initiatives has been undertaken in order to realize the rights to of filipino children to free basic education. it also sought to interrogate how power relations among authorized policy actors (private school administrators, deped officials), and non authorized actors (teachers, parents, and students) are reconfigured. specifically, this research looked into: a) how actors are appropriating and implementing policies; b) how policy appropriation provides spaces for constructing, negotiating, and performing rights and identities. further, this study aimed to enable us to see how local meaning-making and exercise of agency provide the basis for policy appropriation and production. 1.3. theoretical framework framed from a socio-cultural approach to policy making,6 this study views the policy in education as a practice of power and a language of power.7 this framework contends that policy actors are situated in diverse social realities. diversity constitutes different interpretations and meanings that are mobilized in a social world in order to privilege or disenfranchise certain interests. using appropriation as a lens of analysis, 5 section 4(7) of the department education order no. 88 s. 2010 revised manual of regulations for private schools in basic education, https://www.scribd.com/document/349798176/do-no-88-s-2010revised-manual-private-schools-pdf 6 margaret sutton and bradley a. levinson eds. policy as practice: toward a comparative sociocultural analysis of educational policy. vol. 1. (london: ablex publishing, 2001), 23. 7 cris shore and susan wright (eds). anthropology of policy: critical perspective on governance and power. (london and new york: routledge, 2015), 34. appropriating public private partnership in senior high school program: a socio-cultural approach to policy making peter g. romerosa udayana journal of law and culture vol. 02 no.1, january 2018 55 it recognizes on-the-ground actors as agentic individuals who play pivotal roles in the policy making process. in this a study, appropriation is construed as a form of creative interpretive practice engaged in by different actors in the policy making. following this premise, when voices of non authorized actors are incorporated in policy making, they are in effect making new policy in situated locales and communities of practice (cop). in turn, the policy as a social-cultural practice looks beyond the text of the policy and how policy statements are articulated in day-to-day activities. in the practice of policy, actors produce, embed, extend, contextualize, and in some cases transform the text. in other instances, the marginalized actors, recontextualize, resist or subvert the ideological message of policy.8 agency is exercised in order to respond to contextual constraints brought about new policies or innovations.9 creative strategies are deployed in order to demonstrate mechanisms for survival.10 for ball, actors are making meaning, being influential, contesting, constructing responses, dealing with contradictions, attempting representations of policy. policy is a discourse.11 for foucault, policy is a complex and ongoing social practice of normative cultural production constituted by diverse actors across diverse contexts. its immediate product is normative cultural discourse with positive and negative sanctions. thus, policy (a) defines reality, (b) orders behavior, and (sometimes) (c) allocates resources accordingly.12 policy as a normative cultural discourse presupposes a standard behavior in a model world, and structures such behavior through regulations. the normativity of policy entails the will to govern that seeks to meet or privilege certain agenda. on the other hand, it is also an intentional action that forms normative discourse. it is a process made by decisions from diverse social contexts. thus, appropriating policy, attends to how the local exercise of agency and dynamics of power relations affect policy making. central in this position argues that policy actors occupy diverse positions of power, that is, their experiences, values, worldviews, and strategies greatly impact policy formation. in a socio-cultural sense, policy makers negotiate meanings based on their social contexts and such process is fundamental to social action. negotiation is always part of policy making and 8 deborah reed-danahay. education and identity in rural france: the politics of schooling. (great britain: cambridge university press, 1996). 32-33. 9 mustafa emirbayer and ann mische, “what is agency?” the american journal of sociology, 103, no. 4 (1998):962-1023. 10 mark priestley, richard edwards, andrea priestley, and kate miller. “teacher agency in curriculum making: agents of change and spaces for manoeuvre” curriculum inquiry 42, no. 2 (2012): 191-214. https://doi.org/10.1111/j.1467-873x.2012.00588.x 11 ball, stephen. “what is policy? texts, trajectories and toolboxes”. discourse: studies in the cultural politics of education 13, no. 2 (2006): 10-17,doi: http://dx.doi.org/10.1080/0159630930130203 12 bradley a. u levinson, margaret sutton, and teresa winstead. “education policy as a practice of power: theoretical tools, ethnographic methods, democratic options” educational policy 23, no. 6 (2009): 770, https://doi.org/10.1177/0895904808320676. 56 normative cultural production.13 in a nutshell, policy formation in the context of the practice of power sees education policy as a negotiated political process. thus, education is a contested terrain. this means that education process and policies are historically situated, culturally bound and tied to the issues of power. in this context, policy making can be a powerful instrument for students to realize democratic participation in education. 1.4. methodology to examine the contextual application of ppp in a practical setting, this study involved a non-sectarian private school in metro manila as a service provider of the government for the implementation of the senior high school program. the site of the study was lakandula school (pseudonym). the focus group discussions (hereinafter, fgd) ran from the third week of september until the second week of october 2017. the researcher facilitated a series of fgd with students, teachers, and parents and conducted individual interviews with school administrators. students and teachers represented different course tracks. as a method, fgd does not only mean obtaining accounts of individuals. rather, it is a means to set up a negotiation of meanings through intraand inter-personal conversations.14 constructions of meanings presuppose that actors’ lives are relational. thus, their relationships influence their capacity to think and act. the participants were purposively selected because they had hands-on insights to the research questions. in this study, two sets of students were chosen and interviewed in separate episodes. the first group was composed of students who academically excel in their strand, while the other group, comprised of students who struggle with their academics. the discussions among the participants provided the researcher with an opportunity to identify key issues and themes that emerged during the interaction. 2. result and discussion 2.1. legal and policy basis of public private partnership in education in the philipines over the past two decades, significant changes in the governance of education systems have been undertaken as international institutions, governments, firms, other organizations have promoted more hybrid partnership arrangements, involving new combinations of state and non-state actors engaged in a range of activities 13 ian cook and mike crang. doing ethnographies. durham university (1995). 55 http://dro.dur. ac.uk/202/1/202.pdf?ddd14+dgg0arb+dgg0mac+dul0jk 14 ibid. 779. appropriating public private partnership in senior high school program: a socio-cultural approach to policy making peter g. romerosa udayana journal of law and culture vol. 02 no.1, january 2018 57 within the education sector. these newer forms of education governance often operate across scales, through interactions between local, regional and national governments and organizations.15 these interactions have resulted in ppp in education. in the philippine context, this model has been sought especially in the new educational reform in order to accommodate in the senior high school program. at the state level, this response is legitimized by the 1987 philippine constitution which asserts that state recognizes the complementary roles of the public and private institutions in the educational system.16 the type of ppp in the shs program is similar the concept used by organisation for economic co-operation and development (oecd). this concept involves (a) management, maintenance, and support services; (b) operation services (such as pure management); and (c) infrastructure; where the government provides policy and financing while the private schools deliver the services to students.17 in this model, ppp is as an agreement between government and a private partner(s) (include the operators and financiers) according to which the private partner(s) deliver the service in such a way that the service delivery objectives of government are aligned with the profit objectives of the private partners(s) and where the effectiveness of alignment depends on a sufficient transfer of risk to the private partner(s).18 this form of implementation in the senior high school program has reconfigured philippine educational landscape. crucial aspects of the education reform reside in: a) collaboration between the government and private educational institutions in providing the academic service for the senior high school; and; b) partnership with business firms and stakeholders for on-the-job trainings of the students.19 in this new educational landscape, the private entity plays a crucial role in producing a public good. as a new key player in providing public education, lakandula school has redefined its vision in order to adapt with the specifications of the educational reform. explicit in the new vision statement of the private school is to train senior high school students to acquire functional knowledge and skills needed for them to respond to the needs of the local and global communities. this institutional articulation of education overtly expresses the relationship between education and the global economy. in this relationship, education as a state apparatus 15 susan l. robertson et, al. public private partnership in education. (uk: edward elgar publishing limited, 2012).1. 16 article xiv, section 4 of the 1987 constitution of the republic of the philippines. 17 susan l. robertson et, al, op.cit, 6. 18 organisation for economic co-operation and development. public-private partnerships: in pursuit of risk sharing and value for money (paris: oecd publishing, 2008),17. 19 susan l. robertson et, al, loc.cit. 58 mimics the demands of globalization.20 this unidirectional relationship between the state and education is articulated in the enhanced basic education act of 2013 that determines “state shall give every student an opportunity to receive quality education that is globally competitive based on a pedagogically sound curriculum that is at par with international standards.”21 as an approach to realize this objective of education, ppp has been institutionalized. at the micro level, such articulation has redefined the school’s structural organization and operation including administrative roles and practices. 2.2. school articulation of the public private partnership the principal shared: “since public high school students are the new potential market for the senior high school program, we are also trained to do marketing strategies. in practice, i go around several high schools to market our program and encourage students to enroll in our school. it easier to market big schools like ours, especially students would want to experience a new school environment with adequate facilities”.22 at a local level, the articulation of ppp has (re)shaped administrative functions. school administrators perform entrepreneurial duties in line with the state’s technocratic approach to mass education. as both instructional leader and marketing strategist, ppp has instituted new ways and patterns of carrying out duties and responsibilities in terms of relating to people. the principal continued to lament that: “students have become more assertive of their right to education because ppp has given them the opportunity to access private education under the senior high school program. moreover, it is more challenging to be a principal today because this new educational arrangement demands more workloads in terms of supervision and monitoring of teachers and students. it also extends the scope of my job to the public and government stakeholders. adjustments take time because this is just the second year of implementation. there is limited knowledge about the senior high school implementation. to whom do we seek information about the program? i need to study in order to understand on-going issues.”23 20 louis althusser. on the reproduction of capitalism: ideology and ideological state apparatuses, translated by g.m. goshgarian. (london: verso books, 2014), 94. 21 section 2a of the republic act no. 10533 an act enhancing the philippine basic education system by strengthening its curriculum and increasing the number of years for basic education, appropriating funds therefor and for other purposes. 22 statement in fgd, ran from the third week of september until the second week of october, 2017 in a non-sectarian private school in metro manila. the site of the study was lakandula school (pseudonym). 23 ibid. appropriating public private partnership in senior high school program: a socio-cultural approach to policy making peter g. romerosa udayana journal of law and culture vol. 02 no.1, january 2018 59 the school administrator as marketing strategist has to generate productivity. however, their limited knowledge on running the program poses serious concerns and constraints among educational leaders. this is exacerbated by the dearth of contextual models for senior high school implementation. the major challenge dwells on how a leader navigates public and private domains and how to deal with the emerging legal and social issues brought about by the public-private collaboration. within the realm of ppp in education, diverse dynamics of relationships have been formed, redefined, and regulated. consequently,leadership style has been reconstructed in the context of productivity, accountability, and performativity.24 in the process, school leaders reconstruct their identities as they navigate their new duties and responsibilities. 2.3. appropriating free senior high school program table 1 nonauthorized policy actors’ appropriation of the free senior high school program.25 teachers parents students “like other paying students in the junior high school and college, you are also paid through the voucher system. so, take advantage of the opportunity of being a private school student under the senior high school program.” “enjoy the facilities; clean environment and air-conditioned classroom.” “this can be good and not good.” “the voucher is free. however, students’ expenses for the additional two years are not.” “it is our right to access private education under the senior high school program.” the implementation of the senior high school program is consistent with free basic education as articulated in governance of basic education act of 2001.26 it is hereby declared the policy of the state to protect and promote the right of all citizens to quality basic education and to make such education accessible to all by providing all filipino children a free and compulsory education in the elementary 24 stephen j. ball, “performativity, commodification and commitment: an i-spy guide to the neoliberal university”, british journal of educational studies 60, no. 1 (2012). 19. https://doi.org/10.1080 /00071005.2011.650940. 25 result of fgd, ran from the third week of september until the second week of october, 2017 in a non-sectarian private school in metro manila. the site of the study was lakandula school (pseudonym). 26 section 2 of the act instituting a framework of governance for basic education, establishing authority and accountability, renaming the department of education, culture and sports as the department of education, and for other purposes (governance of basic education act of 2001). 60 level and free education in the high school level. in order to make free senior high school education accessible to the masses, ppp has been implemented. at the grassroots level, this educational landscape has generated diverse interpretations that influenced the dynamics of school participation among unauthorized policy actors (teacher, parents, and students) who are directly affected by the educational reform. for teachers, they always emphasize in their narratives the advantage of free senior high school for public school students. a teacher said, “i always remind my shs students that they have similar status with other regular paying students. their tuition is paid by the state through the voucher program. this is to remind them that all students in this school are equal”.27 the cultural deficit model assumes that poor attitudes towards schooling and under achievement are profoundly shaped by economic status and familial origin. in this model, public school students are perceived as lazy and show lack of interest in schooling. reminding students of the opportunity to avail of the free senior high school program in a private school is a strategy for a teacher to call students’ attention so that they will focus on their studies and strive harder. on the other hand, students’ interpretation of free education is an assertion of their right to education. they are aware that basic education is provided for by the state for free and they have a strong voice in choosing a school where they can continue their senior high school. this practice corroborates with the principal’s narratives. she said, “when we market, we make it a point that we are able to persuade and attract students because they are the ones who will enroll in the programs. they can decide and choose where to enroll for their shs”28 however, the most critical among the non authorized policy actors are the parents. although the senior high school is free, the additional two years imply an extension of their financial support to their children’s education. for them, the additional expenses such as daily school allowances, transportation fare, school uniform, and school projects are more expensive than the cost of the voucher. ppp is the meeting point between the structure and local actors. the interpretations reflect different actors’ social contexts and are informed by levels of entitlement and impacts of the program. the most affected stakeholders demonstrate the most critical attitude towards the reform. 27 statement in fgd, op.cit. 28 ibid. appropriating public private partnership in senior high school program: a socio-cultural approach to policy making peter g. romerosa udayana journal of law and culture vol. 02 no.1, january 2018 61 2.4. the voucher as a mechanism of control table 2 participants’ interpretation and negotiation with the voucher program29 administrator teachers parents students “public school students were attracted to big schools. at the same time, we offer no top-up voucher policy.” “i tell them to study hard and finish senior high school, because if they fail, their parents will pay their tuition fees.” “they are assertive because they are aware that they are paid through the voucher system. we are compelled to promote students even they do not deserve to pass.” “the voucher does not cover daily school expenses.” “we will transfer to a state university for college because we cannot afford to pay the tuition in a private tertiary school.” the voucher is a subsidy given by the state to qualified grade 10 completers to enable them to enroll in a non-deded senior high school of their choice.30 the assistance is meant to defray the cost of the total school fees charged by a non-deped shs. the entitlement is not given to the students in cash; deped instead pays directly to the non-deped shs where the student enrolls. voucher recipients from public/deped jhs who will enroll in a non-deped shs located in the national capital region (ncr) receive a full voucher amount of php 22,500 or us$ 439.754. as a strategy, lakandula offers no-top-up voucher policy. this means that no additional fees are collected on top of the standard amount of the voucher. this policy appealed to students whose parents have very limited capacity to pay additional fees. as a result, many students from low-income families took advantage of the notop-up policy as a primary reason for enrolling in lakandula school. secondary to this is the desire of public school students to study in a new school environment, and lastly, is the experience to be a student in a big school. being able to meet these three main reasons, lakandula school was able to attract a huge number of students from disenfranchised families. in practice, the capacity for students to finish the program does not only depend on the school’s vision, but also on how students will relate to their teachers and the family support of the program. 29 result of fgd, op.cit 30 voucher program. http://www.deped.gov.ph/k-to-12/faq/voucher-program 62 the voucher has regulated school participation and involvement of students, parents and teachers. explicitly and implicitly, the voucher system promotes mass education on the one hand, and encourages mass promotion on the other. teachers are challenged to create proactive approaches in order to sustain students’ school participation. however, they are constrained to promote even those students who demonstrated tardiness and failed to meet school requirements. one mechanism to address this issue is to persuade parents to take an active involvement in the education of their children. in order to secure parents’ compliance with the program, parents were informed of regulation that: a student loses the voucher or subsidy if he or she fails to complete the program. in this case, parents are required to shoulder the expenses should their children wish to continue shs in any non-deped schools. this condition has compelled parents, especially from the poor sector to actively participate in students’ completion of the shs program. although parents are critical about the program, at the end, they still subscribe to the policy in order to avoid losing the subsidy. more than anyone else, the student and their families are the most affected when former fails to complete the program. the voucher program has provided spaces for students to exercise their agency. it has given them entitlements in terms of choosing a school and the right to avail of private education for shs. students are assertive, competitive and eager to try new things. as the assistant principal noted: they do not seem to carry a marginalized status. when teased, they fight back. students are aware of their temporal social status in the program. such status is interwoven with opportunities and constraints. for bright students, studying in a private school is an opportunity for them to learn and get good grades. one student from a cream section stated: “i think all of us in class seem to be competitive because we have to maintain excellent grades. we are doing this for practical reasons; for our families and future”.31 the motivation for bright students to earn excellent academic standing in shs is a stepping stone for them to enter into state universities. they will not choose to stay at lakandula school because their families cannot afford private tertiary education. on the last year in the program, the average number of sleep hours for students in a cream section is five hours a day. this is due to heavy requirements for the specialized courses. they are required to have a full grasp of contextualized and specialized courses in preparation for employment or tertiary education. the culture of competition and the voluminous demands of the program make shs a challenging experience, especially for bright students. 31 statement in fgd, op.cit appropriating public private partnership in senior high school program: a socio-cultural approach to policy making peter g. romerosa udayana journal of law and culture vol. 02 no.1, january 2018 63 in contrast, students in a regular class, have an average number of eight sleep hours a day. they exert effort in their studies within the limits of their capacity. they still have time to do other activities such playing basketball, meeting friends, doing household chores after school hours. one student from the regular class articulated: “our class is divided into two: students who belong to team gc (grade conscious) and those who belong to team mobile. students in the gc category are so determined to earn good grades. their lives are limited to academics. i belong to team mobile. i exert effort according to my ability. i know when to be serious in my studies.”32 majority of students from cream and regular sections, express a desire to pursue a college education. for struggling students especially those coming from poor families, shs is not about getting good grades. their motivation is to earn the shs degree as their ticket to employment in order to help their families. if the voucher is extended to college, they would rather stay in lakandula school. participants negotiate and accommodate the direct and indirect ideological messages of the voucher program. accommodation operates within the following dynamics of social processes: a) teachers’ deployment of pragmatic strategies to sustain students’ school participation; b) parents’ involvement; and c) students’ positive interest to finish shs. on the other hand, negotiation takes place as each actor interprets and recontextualizes the program to fit their interests. 2.5. views about senior high school the table below presents different views of actors about the senior high school program. these views represent actors’ social position, participation, meaning-making about education and the impacts of the senior high school program on the particular lives of actors. 32 statement in fgd, op.cit 64 table 3 views of actors about the senior high school program33 administrator teachers parents students “shs bridges the transition from hs to college.” “shs is a preparation for college.” “subjects that we teach are not within the field of our expertise. we are trained to teach the jhs, not the shs.” “we are limited by the lesson plan.” “they are still in high school students; i will send them off to college. who will hire them if they are only shs graduates?” “we are not confident if teachers can deliver. most of them are fresh graduates.” “we are being prepared for college.” “we feel that we are under an experiment.” “our subjects are difficult.” “we expect to have experienced and expert teachers to teach us since we are in shs already.” in general, similar perspective rests on the notion that the program prepares students for a college education, except for a few who would like to work because their families are not financially capable to support their tertiary education. parents’ skepticism shows lack of confidence for their children to land a decent job if they are not college graduates. given enough resources, they will send them off their children to college. the dominant view on completing a college degree is an integral part of filipino society. this practice reflects the value of filipino families on education. in filipino society, any individual who has completed a college degree gives honor to his or her family and the community. it is also socially perceived that one’s occupation is determined by a person’s educational attainment. hence, the option to work over pursuing a college degree after shs is less socially accepted but a practical choice for economically disadvantaged students. choosing or not choosing to continue tertiary education is a collective decision that is always mediated by the family’s forms of capital (economic, cultural, social and emotional). shs implementation has opened teaching opportunities for education and non-education graduates. on the other hand, it has also created constraints because majority of the teachers are fresh graduates who have limited knowledge and social skills in relating to shs students. some non-education graduates were field practitioners who ventured into teaching for a career change. they have content expertise but they lack pedagogical and methodological skills. 33 result of fgd, op.cit appropriating public private partnership in senior high school program: a socio-cultural approach to policy making peter g. romerosa udayana journal of law and culture vol. 02 no.1, january 2018 65 subjects in the old tertiary curriculum were incorporated in the shs program. in terms of learning the academic content areas, students feel like college students. in this regard, they expect that teachers should exhibit expertise in the subjects they teach. students in the cream section are more critical in identifying teachers who have the capacity to deliver effective instruction. students are aware of the emerging issues of the program. at the center of these on-the-ground issues, students feel that they are under a big experiment. student agency is essential in this situation. one student uttered: “we believe that we are all adjusting. teachers are adjusting because most of them are fresh graduates. from our end, we have to do the same. our teachers easily get hurt when we challenge them. we leverage our relationship in order to develop a good rapport with our teachers. because we have a cordial relationship with them, they are open to negotiation. we can ask them to extend the deadline for submission of requirements or lessen the volume of our school projects especially when they are getting heavier.”34 diverse views on education illuminate contradictions between policy statements and cultural practice. mass education in the context of shs implementation is provided for free so that majority of the socially disadvantaged shs graduates can join the labor force. on the other hand, academic people interpret the subliminal text of shs program as a preparation for college life. such interpretation is consistent with the normative social practice of completing a college degree. socio-economic issue and student academic ability are two dominant factors that shape a family’s decision for their children’s education. in responding to problematic situations, teachers and students have developed creative and pragmatic strategies. teachers organized social networks in order to draw emotional support from each other and share resources. these networks became a venue for cooperation and capacitated teachers to collectively negotiate their concerns with the system. on the other hand, students used time management as a strategy to address constraints due to heavy requirements. on a collective level, they managed to establish a harmonious relationship with their teachers so that they can bargain with their concerns. 34 statement in fgd, op.cit 66 2.4. contemporising the reasonable person the table below presents different views of actors about the identity formation. table 4 views of actors about the identity formation35 administrator teachers parents students “categorically speaking, shs students are minors.” “treat them as college students, but in legal documents treat them as hs.” older teacher: “i treat them like my son and daughter.” young teacher: “i am afraid to my age; if they learn reveal my age; if they learn about it; they may not respect me anymore.” “it is hard to earn students’ trust if the teacher and his or her students belong to the same age bracket.” “students are not allowed to have a sleepover at their classmates’ house.” “they are only hs students.” “we are disoriented. their subjects are like those in college but they are in hs.” “they are many restrictions. they want us to behave like college students but they treat us like hs students.” “how to behave like a mature student? to whom should we ask? where do we go, to the high school library or college library?” the entrance of the first batch of grade 10 completers had been delayed due to the shs implementation. consequently, the program has created a new social status; a transition stage between junior high school and college. the crucial issue in this transitional stage is identity formation. students ask: what does it mean to be an shs student? construction of shs identity is determined by how the policy describes them, how the larger society relates to them, and how shs students themselves make sense of their social interactions. academic actors display new patterns of relating with students. the principal explained: “when it comes to legal documents they are treated as high school. this means that students should always secure parents’ consent through a waiver before allowing them to engage in curricular or extra-curricular activities. for example, if it is dismissal time, they have to go home immediately, if they have to stay to do other activities like rehearsing for a school play or complete a project, they need to secure a waiver from their parents. however, without the shs, they are 35 result of fgd, op.cit appropriating public private partnership in senior high school program: a socio-cultural approach to policy making peter g. romerosa udayana journal of law and culture vol. 02 no.1, january 2018 67 supposed to be in college alreadymeaning, there are some activities that do not require them to submit a waiver. so, in terms of interpersonal relations, i instructed my teachers to treat them like college students.”36 for the young teachers especially the fresh graduates, they struggle to earn students’ trust. students see young teachers as barkada, cohorts, friends, brothers or sisters because they belong to the same age bracket. for this reason, some teachers do not tell their students about their real age. they would only tell about it when they have already secured the trust of their students. inevitably, relationships within the mainstream society are hierarchical. students look up to teachers who can share with them relevant knowledge, and meaningful insights from their experience. a student said, “we appreciate a teacher who imparts with us insights about the issues that we are facing.”37 in practice, the majority of the teachers in the senior high school fall within the same developmental stage as their students. as a result, teachers and students may one way or another; undergo the same developmental issues and challenges. what kind of experience would teachers bring into their class in order to guide their students who in a very crucial stage? within the limitations of the program, who should adjust, and who is the most affected? epistemologically, teaching is an emotional labor. it is given by someone who has the content expertise and broad experience who plays a significant role in the character formation of a student. teaching is establishing a teacher-student relationship. such relationship is built on trust and earned through the quality of emotional and intellectual experience brought into the social ties. these new dynamics of relationship affect students’ construction of their identity. another student said: “as a high school student, we wear school uniform similar to that of the jhs. we do the same co-curricular and extra-curricular activities like those in the jhs curriculum. we are asked to fall in line along the corridor like children in grade school. however, like college students, we also have practicum, our subjects are specialized and contextualized and the school year is divided into two semesters. in terms of the way we should behave, adults tell us to act like a college student.”38 because students carry a shs social status, the social perception towards shs has been created. shs has created a dual identity that poses confusion not only for students but also for other community people. a mother said, “my son is still in high 36 ibid. 37 ibid. 38 ibid. 68 school so i will not allow him to have a sleepover at his friends’ house. he has to observe strict regulations because he is still minor. however, i am quite disoriented about his subjects. they are difficult.”39 this socially constructed status predisposed students to enter into the liminal stage. a liminal space is a transitional stage where a student’s identity is reconstructed and transformed in order to be reincorporated into the society.40 in the learning process, there is an epistemological reformulation of a student’s meaningmaking as he or she is exposed to learning rituals and experiences in preparation for the ontological shift. this ‘betwixt and between space’ is a vulnerable experience but also as loaded with opportunities for transformation and empowerment. drawing on students’ perspectives and narratives, confusions reside on different interpretations of what it means to bean shs student, including the contradictions between what is in policy and what is happening on the ground. the explicit agenda of the shs program is to reincorporate students into the neoliberal world, whether they participate in the labor force or pursue higher education. in this liminal space, the learning of the middle-level skills is integral in the social integration. on the other hand, the cultural status of an shs student predisposes the wider society to subject students to strict regulations. students have to negotiate with their new identity and emerging issues and opportunities in the liminal space. shs liminal space is a social site of contestation and identity formation not only for students but also their parents and teachers. 3. conclusion and recommendation education cannot be analyzed independently of the wider social system. as such, the implementation of public private partnership (ppp) in education in the philippines elucidates the state’s response to global demands. in practice, enhanced basic education act of 2013 was enacted, creating additional two years in the senior high school. the implementation of this education reform constituted a ppp model that shares similarities with the one utilized by the oecd, which defines ppp as a contract between the government and a private, where the government guides the policy and the private institution delivers the service. education is a social apparatus of the state that reproduces the neoliberal agenda of the global economy. to meet this agenda, the state implemented the senior high program using the ppp in order to broaden school participation of masses. in this collaboration, the private institution provides the academic service while the government provides the guidelines and financing. in this new educational arrangement, education as a public good is served by a private institution. the technocratic approach in providing public education has redefined public-private collaboration, 39 statement in fgd, op.cit 40 victor turner. the ritual process: structure and anti-structure. (chicago: aldine, 1969), 94. appropriating public private partnership in senior high school program: a socio-cultural approach to policy making peter g. romerosa udayana journal of law and culture vol. 02 no.1, january 2018 69 especially non authorized actors’ participation in education. at the macro level, the partnership elucidates strong identification between the school and the state in line with the national development and global competitiveness, but much of what occurred at the local level reflects a strong appropriation of policy. neoliberal agenda of education is interpreted in ways that local identity, familial values, and cultural meanings are negotiated in order to serve personal or familial interests. however, local strategies are deployed as a practical response to the disabling impacts of the policy. in this process, the agency is exerted while identity is negotiated, reconstructed, and performed. generally, the response seems to show the reproduction of the instrumental view of education. educational leaders are trained to dispense the instrumental value of education for taking a new role as a marketing strategist. nevertheless, the exercise of agency serves to legitimize and reproduce the instrumental assumption of education. moreover, emerging issues brought about ppp in education in general, and the implementation of shs, in particular, are happening in a liminal space. one crucial issue in this liminal stage is identity formation. students are treated as a high school on the one hand and college on the other. as a result, students are confused as to how to behave with a dual identity. in negotiating with their dual identity and the expectations of the state, they deploy personal strategies consistent with their goals and aspirations in life. embedded within these goals is the desire for socio-economic mobility in order help their families escape from poverty. in policy appropriation and production, it is crucial to pay attention to the social and individual exercise of agency, cultural meanings, history, power relations, and identity construction at the local context. the paper provides a lens drawn from a socio-cultural approach to policy making to further develop an understanding on how policy appropriation and production from the local context can inform institutional approaches in facilitating relevant student experience within the realm of ppp in education. 70 appropriating public private partnership in senior high school program: a socio-cultural approach to policy making peter g. romerosa bibliography book althusser, louis. on the reproduction of capitalism: ideology and ideological state apparatuses. translated by g.m. goshgarian. london: verso books, 2014. reed-danahay, deborah. education and identity in rural france. the politics of schooling. great britain: cambridge university press, 1996. delmon, jeffrey. public private partnership projects in infrastructure: an essential guide to policy makers. cambridge university press, 2011. organisation for economic co-operation and development. public-private partnerships: in pursuit of risk sharing and value for money. paris: oecd publishing: 2008. robertson, s. l et, al. public private partnership in education. edward elgar publishing limited, uk, 2012. sutton, margaret, and bradley a. levinson, eds. policy as practice: toward a comparative sociocultural analysis of educational policy. vol. 1. london: ablex publishing, 2001. shore, c. & wright, s (eds). anthropology of policy: critical perspective on governance and power. london and new york: routledge, 2005. turner, victor. the ritual process: structure and anti-structure. chicago: aldine, 1969. journal article ball, stephen j. “performativity, commodification and commitment: an i-spy guide to the neoliberal university.” british journal of educational studies 60, no. 1 (2012): 17-28. https://doi.org/10.1080/00071005.2011.650940 ball, stephen j. “what is policy? texts, trajectories and toolboxes”. discourse: studies in the cultural politics of education 13, no. 2 (1993): 10-17. http:// dx.doi.org/10.1080/0159630930130203 emirbayer, mustafa, and ann mische. “what is agency?.” american journal of sociology 103, no. 4 (1998): 962-1023. udayana journal of law and culture vol. 02 no.1, january 2018 71 levinson, bradley au, margaret sutton, and teresa winstead. “education policy as a practice of power: theoretical tools, ethnographic methods, democratic options.” educational policy 23, no. 6 (2009): 767-795. https:// doi.org/10.1177/0895904808320676 macris, vicki. “the ideological conditions of social reproduction.” journal for critical education policy studies 9, no. 1 (2011): 20-46. priestley, mark, richard edwards, andrea priestley, and kate miller. “teacher agency in curriculum making: agents of change and spaces for manoeuvre.” curriculum inquiry 42, no. 2 (2012): 191-214. https://doi.org/10.1111/ j.1467-873x.2012.00588.x legal document the 1987 constitution of the republic of the philippines republic act no. 10533 an act enhancing the philippine basic education system by strengthening its curriculum and increasing the number of years for basic education, appropriating funds therefor and for other purposes an act instituting a framework of governance for basic education, establishing authority and accountability, renaming the department of education, culture and sports as the department of education, and for other purposes (governance of basic education act of 2001) department education order no. 88 s. 2010 revised manual of regulations for private schools in basic education universal declaration on human rights convention on the rights of the child website content cook & crang (1995). doing ethnographies. durheim university. http://dro.dur. ac.uk/202/1/202.pdf?ddd14+dgg0arb+dgg0mac+dul0jk k – 12 program. http://www.gov.ph/k-12/#about. organisation for economic co-operation and development (2012) recommendation of the council on principles for public governance of public-private partnerships. retrieved on november 20, 2017 from: https://www.oecd.org/governance/ budgeting/ppp-recommendation.pdf 72 legal and policy basis of ppp in education in the philipines.https://www.teacherph.com/legal-bases-of-philippine-educational-system/ voucher program. http://www.deped.gov.ph/k-to-12/faq/voucher-program united nations. universal declaration of human rights, 1948 adopted by the united nations general assembly on 10 december 1948 at the palais de chaillot in paris, france. http://www.un.org/en/universal-declaration-human rights/ united nations, treaty collection, https://treaties.un.org/pages/viewdetails. aspx?src=ind&mtdsg_no=iv-11&chapter=4&lang=en#11 office of the high commissioner for human rights, regional office for south-east asia, http://bangkok.ohchr.org/news/crc.aspx appropriating public private partnership in senior high school program: a socio-cultural approach to policy making peter g. romerosa 98 vol. 01, no. 2, july 2017, 98-120 knitting the future story of indian women: preventing violence, fostering development, and accelerating empowerment prerna s ramteke* 1department of sociology, maniben nanavati womens college, vile parle (west), mumbai-india 1. introduction 1.1. background a large number of cases highlight that women in india are exploited even worse than animals. among the g20 nations, india has been labelled the worst place to be a woman.2 india has also been put on the list of the 10 most dangerous countries to * correspondence: prerna.ramteke71@gmail.com 1 human rights watch, “treated worse than animals: abuses against women and girls with psychosocial or intellectual disabilities in india”,https://www.hrw.org/report/2014/12/03/treated-worseanimals/abuses-against-women-and-girls-psychosocial-or-intellectual 2 “why india bad for women?”, https://www.theguardian.com/world/2012/jul/23/why-indiabad-for-women abstract women in ancient india were referred as goddesses like kali, durga, laxmi that lead to the respect of women in an appropriate way. the present situation indicates how they become more vulnerable. this article highlights the issue of women in india and to describe the violence against women in india that degrades their dignity as a human being, to analyse both conceptual and practical aspects of women, particularly with regards to their role in the development and also to discuss the need for accelerating the empowerment of women in india. some concepts such as the three classical approaches to the relationship between women and development are discussed in this writing. it also analyses the present situation faced by indian women that can potentially become obstacles to their development. in addition, this paper looks at some legal instruments and cases that relate to the legal protection of women in india. it is a research in the field of sociology that will be enriched by legal, cultural and economic approaches. it will also highlight the dreams of better status of women in india that are expected to become true and will also encourage women in india to get involved in many efforts to knit their future story. keywords: women, india, violence, development, empowerment. how to cite: ramteke, prerna s. 2017. “knitting the future story of indian women: preventing violence, fostering development, and accelerating empowerment”. udayana journal of law and culture 1 (2): 98-120. doi:10.24843/ujlc.2017.v01.i02.p02. doi: https://doi.org/10.24843/ujlc.2017.v01.i02.p02 copyright © 2017 ujlc. all right reserved udayana journal of law and culture vol. 01 no.2, july 2017 99 be a woman due to cases of rape, child marriage, and human trafficking.3 moreover, as estimated by researchers, there have been plenty cases of female infanticide or sex-selective abortions (feticide) for a son or a male child.4 it is generally spoken that there are a number of structural factors that are negatively associated with women’s position in indian society such as the role of religion, to view her as a commodity, the caste system, patriarchy and the vast urban-rural divide.5 the conferment of a prestigious international women of courage award to ms. laxmi by the united states of america’s first lady michelle obama in 2014,6 was an awakening to the world. laxmi is a victim of an acid attack in india at the age of 16. she was attacked (with acid) by her friend, a 32 years old man.7 acid attacks are common in india, usually to avenge a woman or out of jealousy, where the attacker aims to scar a woman not only mentally but physically for life.8 this case eventually inspired a progressive law creation for almost a decade after the attack, as in 2013, india’s supreme court ordered states to enforce restrictions on the sale of acid in a bid to curb attacks.9 in 2016, a landmark judgment for an acid attack-related case against woman has been ruled for the very first time when an indian court has awarded the death penalty to a man who was found guilty of hurling sulphuric acid, until death on a woman in mumbai.10 socially, women in india were always progressive and also contributed to the welfare and justice for women.11 but the implementation of laws granting rights to women has been slow, lopsided and haphazard that women continue to socially, economically and politically lag far behind men.12 gita mittal, judge delhi high court, stated “despite the host of progressive and protective legislations, social justice to women has remained an anachronism. it is the judiciary alone which has risen to the 3 “10 of the most dangerous countries to be a woman”, https://www.theneweconomy.com/ insight/10-of-the-most-dangerous-countries-to-be-a-woman 4 swami agnivesh, rama mani and angelika köster-lossack, “missing: 50 million indian girls”, http://www.nytimes.com/2005/11/25/opinion/missing-50-million-indian-girls.html. 5 kolaskar, ashok s. and dash, motilal (eds.), “review on women and society: the road to change”, http://www.socresonline.org.uk/18/3/reviews/3.html. 6 “michelle obama to honour acid attack victim laxmi”, http://www.thehindu.com/news/international/world/michelle-obama-to-honour-acid-attack-victim-laxmi/article5750391.ece. 7 “best and worst things that happened to women in 2014”, https://www.jaagore.com/power-of49/best-and-worst-things-that-happened-to-women-in-2014. 8 ibid. 9 “acid attack: indian court sentences to death for murder after marriage proposal rejected”, http://www.abc.net.au/news/2016-09-09/acid-attack-indian-court-sentences-man-to-death-formurder/7828180. 10 ibid. 11 see r.n. mangoli and ganapati m. tarase, “crime against women in india: a statistical review”, international journal of criminology and sociological theory 2, no. 2 (2009): 293, http://ijcst.journals. yorku.ca/index.php/ijcst/article/download/23401/21601. 12 ibid. 100 knitting the future story of indian women: preventing violence, fostering development, and accelerating empowerment prerna s ramteke occasion and its role in ensuring gender justice can by no means be underplayed.”13 a united nations document that was published in 2015 highlights some issues on women in india.14 it is accounted that the male population in india is much higher than female (that is 43 million).15 the document also revealed that the country with the lowest sex ratio, in under-5 mortality, is india, with a ratio of 93 (93 boys die before age 5 for 100 girls that die by that age).16 higher mortality among girls can be closely related to a general preference for sons in india, which is expressed in special treatment for boys in terms of parental investment in nutrition, vaccinations, access to health treatment and parental care in general.17 on the issue of education, the share of women teacher in india was below half.18 the decrease of women’s labour force also occurred in india,19 includes a notable decline in labour force participation for women aged 25 to 54, where occupational segregation resulted in lack of job opportunities for women and that of job growth disproportionately benefited men.20 the aforementioned facts and statements seem so contradictive to positive views on women. indeed, women in india have a special position. mainly for hindus, they are referred to as goddess sarasvati, laksmi,21 kali, durga. ideally, this should lead indians (devotees) to primarily respect women in an appropriate way. the facts also undermine that many achievements of some indian women are undeniably remarkable. this is to acknowledge pioneer of women education in india savitribai phule, prime minister indira (priyadarshini) gandhi, nobel laureates mother teresa (saint teresa of calcutta), vandana shiva, activist, mathematician mangala narlikar, the chairperson of jindal steel & power limited savitri jindal, and badminton player pusarla venkata sindhu. besides, many actresses of the indian movie industry (the bollywood) are also very famous over the world. 1.2. writing purposes, approaches, and outline the present article highlights the issue of women in india. it has three purposes that are linked. first of all, it aims at describing the violence against women in india that degrades their dignity as a human being. it may be reasonably assumed that a 13 gita mittal, “gender equality : contributions of delhi high court, in smt,” nomita aggarwal (comp), all india meeting of chief justices of high courts on women empowerment vis-a-vis legislation and judicial decisions, national commission for women, new delhi, 11 december 2004 h.42, http://ncw. nic.in/pdfreports/all%20india%20meeting%20of%20chief%20justice.pdf 14 united nations, 2015. the world’s women 2015: trends and statistics. new york: united nations, department of economic and social affairs, statistics division. sales no. e.15.xvii.8. 15 ibid., 5. 16 ibid., 41. 17 ibid. 18 ibid., 78. 19 ibid., 89. 19 ibid., 92. 20 in india traditionally women have been mentioned as the provider of food. hindu scriptures have described goddess laxmi as ‘annadatri’ – which in sanskrit means ‘food giver”.see “women farmers of india: a growing force without a growing voice”,https://www.worldpulse.com/fr/node/12031. udayana journal of law and culture vol. 01 no.2, july 2017 101 bunch of violence cases on women in india can’t be a major player for development. this then leads to the second purpose of this article, to analyse both the conceptual and practical aspects of women, particularly with regards to their role in development. as the proper role in development can be achieved through a strong capacity, equality, and self-reliance, then it may be assumed that empowerment is a key element for development. this thus inspires and leads to the third goal of this article, to discuss the need for accelerating the empowerment of women in india. these three elements of aim will amount to the ultimate purpose of this writing: knitting the future story of the women in india. this article is designed as a research in the field of sociology and other related areas, among others, law and economics that focus on women, feminist, and gender issues.22 it must be acknowledged that sociological researchs that have been carried out mostly suggested that the indian women enjoy a low status in their households due to family decisions relating to finances, kinship relations and selection of life partner are made by the male members and women are rarely consulted.23 apart from a sociological approach that mainly colours the analysis of this article, the legal approach will be also used besides some other approaches such as, culture and economic, in order to enrich the discourse. the legal approach is important to be utilized as, referring to joginder s. gandhi, law, legal norms, and legal impulses permeate india’s entire social life and social system, including a variety of institutional settings such as the polity and administration.24 the structure of this writing is described as follows. the first part is introduction that reveals the writing background and clarifies its purposes, approaches, and outline. it will then turn to discuss the main issues as described in part 2: the result and analysis. this second part consists of three topics. the sub-topic of preventing violence against women in india will look on the general legal protection to the women in india and specific laws regulating the violence and crime against women in india and will also build argumentation that women status before the indian law may lead to violence. the sub-topic of fostering women development in india will discuss the conceptual approaches that link women to the issues of development and the gender mainstreaming in india. the last subtopic, that is accelerating the empowerment of women in india, will analyze the current efforts by both government and nongovernment players/actors to empower the women capacity in india. this article 22 see for example siuli sarkar, gender disparity in india: unheard whimpers, (new delhi: phi learning private limited, 2016), 10. 23 “sociologyguide, women’s position in india”, http://www.sociologyguide.com/women-and-society/womens-position-in-india.php. regarding sociological research on women in india, see also manuela ciotti, dalit women between social and analytical alterity: rethinking the ‘quintessentially marginal’ in leela fernandes (ed), routledge handbook of gender in south asia, (london-new york: routledge, 2014), 309. 24 joginder s. gandhi, “research in sociology of law”, in yogesh atal(ed), sociology and social anthropology in india, dorling kinderley, 2009, 560. 102 knitting the future story of indian women: preventing violence, fostering development, and accelerating empowerment prerna s ramteke will be finally ended with a concluding part that reflecting the current situation faced by women in india and proposing a work for their better future. 2. result and discussion 2.1. preventing violence against women in india this part describes legal issues of women in india, primarily based on the assumption that law, on one hand, can be a means to foster development, but on the other, can also be a barrier for women development in india. it will then discuss the legal protection to the women in india, violence against women in india, and vulnerable status of women before the indian law that may lead to the violence. 2.1.1 general legal protection to the women in india under international law, india is a state party to the convention on elimination of all forms of discrimination against women (cedaw). it signed the convention on 30 july 1980 and ratified on 9 july 1993 with certain reservations.25 india made two declarations to the cedaw. first, with regard to articles 5 (a) and 16 (1) cedaw, it declares that it shall abide by and ensure these provisions in conformity with its policy of non-interference in the personal affairs of any community without its initiative and consent. second, with regard to article 16 (2) cedaw india declares that though in principle it fully supports the principle of compulsory registration of marriages, it is not practical in a vast country like india with its variety of customs, religions, and level of literacy.” besides declaration, india also submitted a reservation that emphasizes its position not to be bound by article 29 (1) that regulates the means of dispute settlement regarding the interpretation and application of cedaw. india, with other global nations, is committed to beijing platform for action and convention on rights of the child to protect and empower its women and girls. 26this second most populous country in the world also endorses the sustainable development goals (sdgs-2030), a widely accepted document that addresses some classical problems such as poverty, inequality, and violence against women.27 the national law of india covers some legal protections to the women. the constitution of india recognizes the equality of status and of opportunity and assuring the dignity of the individual that applies to all indian citizens, including women. article 14 of the indian constitution guarantees equality before law as well 25 http://nhrc.nic.in/documents/india_ratification_status.pdfdeclarations, reservations and objections to cedaw, http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm, http://ncw.nic. in/pdfreports/cedaw%20the%20reservations%20and%20optional%20protocol.pdf. 26 see maneka sanjay gandhi, “restoring an equal opportunity in all sphere of life”, http://www. womanachiever.in/restoring.php. 27 ibid. udayana journal of law and culture vol. 01 no.2, july 2017 103 as protection to all persons within indian territory. in addition, article 15 of the indian constitution basically prohibits discrimination on the grounds of religion, race, caste, sex, and place of birth or any of them.28 interestingly paragraph (3) of this article mentions that “nothing in this article shall prevent the state from making any special provision for women and children”. in govt. of a.p. v. p.b. vijayakumar, phrase “any special provision for women” in article 15 (3) of the indian constitution means that the improvement of women’s participation in all activities under the supervision and control of the state can be in the form of either affirmative action or reservation.29 further, article 23 of the indian constitution is designed to prohibit both forced labour and human trafficking.30 this provision is certainly a constitutional protection to the women in india, as there have been many cases of women trafficking. it can also be cited article 46 of the indian constitution that determines the state to promote the educational and economic interests of the women and weaker sections of the people and also to protect them from social injustice and all forms of exploitation. indian national law also became a legal instrument for the establishment of the indian national commission for women that was created through act 1990. this commission has the following mandates: review the constitutional and legal safeguards for women; recommend remedial legislative measures; facilitate redressal of grievances; and advise the government on all policy matters affecting women.31 2.1.2 violence and crime against women in india in 2015, the protection of women from domestic violence act was enacted. this act inter alia covers the issues of definition of domestic violence, power and duties of protection officers, and procedure for obtaining orders of relief.32 as what has been explained in part 1.1, a progressive law that is the sexual harassment of women at workplace prevention, prohibition, and redressal act 2013 was also created. it deals with complaints committee, a complaint mechanism, duties of employer, duties, and power of district officer.33 two decades before this act was issued, the guidelines of the supreme court of india in august 1997 has prohibited sexual harassment of women at the workplace that is legally binding on all establishments and institutions.34 today all major organizations have a cell called internal 27 the constitution of india, arts 15 (1) and (2). 28 govt. of a.p. v. p.b. vijayakumar, (1995) 4 scc 520, that: 8, http://www.pmindiaun.org/adminpart/uploadpdf/77442annexure%20ii%20of%20the%20upr%20national%20report.pdf. 29 the constitution of india, article 23 (1) and (2). 30 official website, “national commission for women, india”, http://ncw.nic.in/frmaboutus.aspx see also national commission for women act no. 20 of 1990, chapter iii, http://wcd.nic.in/sites/default/ files/ncwact.pdf. 31 “the protection of women from domestic violence act of india”, http://wcd.nic.in/sites/default/ files/wdvact.pdf. 32 “the sexual harassment of women at workplace prevention, prohibition, and redressal act 2013, chapters i-vii,” http://wcd.nic.in/sites/default/files/sexual-harassment-at-workplace-act.pdf. 33 yugantar education society civil lines, 2004, a research study on the nature, incidence, extent 104 knitting the future story of indian women: preventing violence, fostering development, and accelerating empowerment prerna s ramteke complaints committee (icc) to address such complaints. arundhati bhattacharyya argues that law can be an effective instrument for bringing social change.35 the creation of specific laws for female employees also indicates how the law has been successfully used to achieve equilibrium by regulating socio-legal relationship.36 research shows an interesting trend between the law and the crime against women.37 as analyzed, the laws seem to be designed to look at the crimes as almost a factor divorced from social customs and gender-based attitude.38 an obvious instance is that case of rape is definitely criminalized, but marital rape, unfortunately, is not penalized.39 even a woman petitioned india’s supreme court with a plea to declare marital rape a criminal offense, was dismissed.40 crime against women in india can be distinguished into two categories. the first category is crime heads under the indian penal code (ipc), as follows:41 1. rape (sec. 376 ipc) 2. attempt to commit rape (sec 376/511 ipc). 3. kidnapping and abduction of women (section 363, 364, 364a, 365, 366 to 369 ipc) 4. dowry deaths (section 304b ipc) 5. assault on woman with intent to outrage her modesty (sec. 354 ipc) 6. insult to the modesty of women (sec. 509 ipc) 7. cruelty by husband or his relatives 8. importation of girl from foreign country (up to 21 years of age) (sec. 366 b ipc) 9. abetment of suicide of women (sec. 306 ipc) the second category is crime heads under the special and local laws (sll) and impact of sexual harassment of women at work place in the state of maharashtra research study, report submitted to department of women and child development, ministry of human resource development, government of india. http://ncw.nic.in/pdfreports/a_study_on_impact_of_sh_at_work_place_ in_maharashtra.pdf see also vishaka and others v. state of rajasthan and others. (air 1997 supreme court 3011) j.s. verma c.j.i., mrs. sujata v. manohar and b.n. kirpal. j.j. https://www.iiap.res.in// files/visakavsrajasthan_1997.pdf 34 arundhati bhattacharyya, sexual harassment in the indian bureaucracy: violation of human rights (cambridge scholars publishing, 2016), 43. 35 ibid. 36 “violence against women in india: the crimes & their causes”, https://www.poverties.org/ blog/violence-against-women-in-india. 37 ibid. 38 ibid. 40 dominique mosbergen, “india’s marital rape crisis reaches ‘tragic proportions’”, http://www. huffingtonpost.com/entry/india-marital-rape_us_564d8c21e4b00b7997f9469e. 41 “crime against women (indian national crime records bureau)”, http://ncrb.nic.in/statpublications/cii/cii2015/chapters/chapter%205-15.11.16.pdf. udayana journal of law and culture vol. 01 no.2, july 2017 105 that are special acts created for protection and safety of women, in which criminal cases recorded by police throughout the country.42 these include the dowry prohibition act, 1961; the indecent representation of women (prohibition) act, 1986; the commission of sati prevention act, 1987; the protection of women from domestic violence act, 2005; and the immoral traffic (prevention) act, 1956.43 2.1.3. vulnerable status of women before the indian law may lead to violence the general legal protection afforded to the women as discussed in art 2.1.1 seems a very basic protection. in facts, women groups have engaged in campaigns on several issues such as legal maintenance, guardianship, and custody of children, a uniform civil code, that demanded new legislations or changes in legislations to give justice to women and control violence, some activists actually wonder about the effectiveness of legislations.44 the case of divorce may be used as an example, as maintenance is granted under the different personal laws.45 it is clear that the disparity in the laws for the different communities adversely affects the women rights.46 an instance can be seen in hindu community where wife is entitled to during a matrimonial proceeding has no ceiling and can be granted by judge’s discretion meanwhile a christian woman was not entitled to more than twenty percent of her husband’s income.47 this ceiling has now been removed by the amendment act of 2001.48 under the muslim law, there is no provision for maintenance after divorce.49 particularly after the shah bano case and the passing of the 1986 muslim women’s (protection of rights on divorce) act, muslim women have no access to maintenance even under the criminal procedure code.50 a certain extent by the supreme court interpretation of the act can be seen in a case danial latifi vs. union of india.51 beyond the direct economic impact, assets in the hands of women have other welfare impacts. land ownership can act as a protective factor for women against domestic violence. research in the state of kerala, a state where the literacy rate is 42 ibid. 43 ibid. 44 ghanshyam shah, “social movements in india a review of literature”, 84, http://www.arvindguptatoys.com/arvindgupta/movement-shah.pdf.. 45 gaurav sankalpand shalini agrawal, “change in behavior pattern of indian married women”, international journal of sociology and anthropology 5, no. 5 (2013), 148, http://www.academicjournals. org/journal/ijsa/article-full-text-pdf/eb84bfd5749 46 ibid. 47 ibid. 48 ibid. 49 ibid. 50 ibid. 51 http://www.the laws.com/encyclopedia/browse/case?caseid=001002993100. 106 knitting the future story of indian women: preventing violence, fostering development, and accelerating empowerment prerna s ramteke 100 percent52 and a minor matrilineal family system53 and also women are educated, show that 49 percent of women with no property reported physical violence and a mere of 7 percent with property reported physical violence. thus the control lies in a wide range of factors.54 in common law countries, the judiciary has played an important role in developing the antidiscrimination law. 2.2. fostering women development in india 2.2.1.conceptual approaches: linking the women and the issue of development fareda banda discusses conceptual approaches that link the women and the issue of development as they evolved within the united nations’ framework.55 she acknowledges conceptual evolution from women in development (wid) to women and development (wad) and finally, to gender and development (gad).56 the women in development (wid) approach exposes how the conventional economic rationale for work involving women undermined their work and masked the magnitude of their economic role in society.57 in this approach, the recognition that women’s experience of development and of societal change differed from that of men was institutionalized and it became legitimate for research to focus specifically on women’s experiences and perceptions.58 under some documents (e.g. dfid, then oda) women in development specifies four main objectives, namely legal rights, access to planning public services, social status and access to education.59 reports of the secretary-general to the general assembly of the united nations show how the concept of wid is used and contemplated. on 22nd september 1995, a report entitled “effective mobilization and integration of women in development: gender issues in macroeconomic policymaking and development planning” highlights that marginalization approach as a premise for the analysis of women in development 52 the times of india, “kerala becomes 1st state in country to achieve 100% primary education”, https://timesofindia.indiatimes.com/india/kerala-becomes-1st-state-in-country-to-achieve-100-primaryeducation/articleshow/50540263.cms. 53 pralip kumar narzary and shilpi mishra sharma, “daughter preference and contraceptive-use in matrilineal tribal societies in meghalaya, india”, journal of health, population and nutrition, 31, no. 2 (2013): 1,https://www.ncbi.nlm.nih.gov/pmc/articles/pmc3702350/pdf/jhpn0031-0278.pdf. 54 un millennium project 2005. “taking action: achieving gender equality and empowering women”, task force on education and gender equality, p.9, http://www.undp.org/content/dam/aplaws/ publication/en/publications/poverty-reduction/poverty-website/taking-action-achieving-gender-equalityand-empowering-women/taking%20action-%20achieving%20gender%20equality%20and%20empowering%20women.pdf 55 fareda banda, “women, human rights and development”,149, http://www.ohchr.org/documents/issues/development/rtdbook/partiichapter11.pdf. 56 ibid, 150. 57 ibid. 58 ibid. 59 yumiko yokozeki, “gender in education and development”, journal of international cooperation in education 1, no.1 (1998): 56, http://home.hiroshima-u.ac.jp/cice/wp-content/uploads/publications/ journal1-1/1-1-5.pdf. udayana journal of law and culture vol. 01 no.2, july 2017 107 was considered irrelevant and unrealistic to be continuously relied on, as women have obtained a major place in the labour market and have also greater access to productive resources.60 wid has been criticized for some issues. this approach is considered not to handle the issue of the unequal gender relations and roles at the basis of women’s exclusion and gender subordination rather than addressing the stereotyped expectations entertained by men.61 in addition, wid is also criticized for its views on the fact that women’s status will improve by moving into productive employment, implying that the move to the “modern sector” need to be made from the “traditional” sector to achieve self-advancement. the second approach, women and development (wad) considers women economic activities, inside and outside their homes, as an essential surviving element of the family unit and also part of the development process.62 further, it argues that the failure to integrate women as economic actors in their societies contributed to sustaining existing international structures of inequality.63 this approach has been widely used by nations over the world. in 1987, un secretary general reported that economic commission for africa and the economic and social commission for western asia have formulated specific activities relating to ‘women and development’ in a large and various program areas.64 many women and development advocates have emphasized women ngo’s as key actors in development.65 the wad approach faced some critiques for overlooking the major influence of the ideology of patriarchy and thus being insufficiently gendered, for its failure to engage with issues of dependency (of third world states and women) on international capital and the resultant inequalities, and for the lack of class as a category of analysis.66 60 united nations, 22 september 1995, “report of the secretary-general to the general assembly of the united nations (a/50/399), effective mobilization and integration of women in development: gender issues in macroeconomic policy-making and development planning”, par. 28, http://www.un.org/documents/ga/docs/50/plenary/a50-399.htm 61 elvis quincy, “gender and development principles and their criticism”, 2, https://www.academia. edu/11708039/gender_and_development_principles_and_their_criticisms?auto=download 62 banda, op. cit, 151. 63 ibid. 64 united nations, 2 june 1987, “report of the secretary general of the united nations, a/42/273, strengthening the work of the united nations in integrating women effectively in economic development programmes and activities,” par.10,http://repository.un.org/bitstream/handle/11176/151515/ a_42_273%3be_1987_74-en.pdf?sequence=1&isallowed=y. 65 elvis quincy, “gender and development principles and their criticism”, 2, https://www.academia.edu/1170 shahrashoub razavi carol miller, “from wid to gad: conceptual shifts in the women and development discourse”, 41, http://www.unrisd.org/80256b3c005bccf9/httpnetitframepdf?rea dform&parentunid=d9c3fca78d3db32e80256b67005b6ab5&parentdoctype=paper&netitpath=80256 b3c005bccf9/(httpauxpages)/d9c3fca78d3db32e80256b67005b6ab5/$file/opb1.pdf 66 ibid. 108 knitting the future story of indian women: preventing violence, fostering development, and accelerating empowerment prerna s ramteke the first united nations world conference on women was held in mexico city in 1975 and one of the three objectives of this conference is the integration and full participation of ‘women in development’ while the conference urges governments to formulate national strategies, targets and priorities through the establishment of the international research and training institute for the advancement of women and the united nations development fund for women, which serve as an institutional framework for research, training and operational activities in the area of ‘women and development’.67 in comparing the two approaches, wad is generally thought to offer a more critical conceptualization of women’s position than wid.68 the third approach, gender and development (gad), is not specifically focused on the issue of women, but on the concern of the means in which a society assigns roles, responsibilities, and expectations, to both women and man.69 this approach is aimed at challenging structural discrimination.70 this latest approach does not means that gad has never been criticized particularly as it emphasizes the social differences between men and women while neglecting the bonds between them and also the potential for change in roles and that gad also does not uncover the types of trade-off that women are prepared to make for the sake of achieving their ideals of marriage or motherhood.71 2.2.2. gender mainstreaming in india is a need the topic of ‘women in india’ is undoubtedly really broad. it cannot be covered even in a paper of hundred pages. even a specific perspective like gender or feminism seems also very complicated. maitrayee chaudhuri emphasizes the importance of understanding the reasons for the difficulties involved, since the relationships between experience, the personal and the theoretical/political may well be more critical today than ever before in thinking about the future of women’s studies and feminist politics in contemporary india.72 during the colonialism, gender has been a central ‘issue’ in india when an overwhelming preoccupation with the “woman’s question” arose from the 19th-century social reform movement, crucially informed anti-colonial nationalism and remains a 67 http://www.5wwc.org/conference_background/1975_wcw.html. 68 addison hanne, feminist economics, wfs publishing, 2015, 40. 69 ibid, 41. 70 banda, loc.cit. 71 quincy, op.cit., 4. 72 maitrayee chaudhuri, “learning through teaching the ’sociology of gender’”, indian journal of gender studies 9, no. 2 (2002): 260, http://www.jnu.ac.in/faculty/maitrayee/learning%20through%20 teaching.pdf. udayana journal of law and culture vol. 01 no.2, july 2017 109 point of crisis in india’s cultural, social, and political space. it entails that the basis of indian women’s movements recognition was formed by gender issue.73 feminist movements in india can be seen in the agricultural sector like the chipko movement (1973) and the cotton movement (1986),74 where women agitated for their rights and duties. chipko was popularized by the feminist movement, who pointed out that village women have to walk long distances to collect fuel and fodder and they become the first victims of forest destruction.75 eco-feminists argued that women are therefore closer to nature and more ecologically conscious.76 these movements brought women to the fore as they were the ones who were directly affected due to the development and also government policies (although men were also part of the agitation). women in india and perhaps in other developing countries are generally homemakers, child bearers, and nurse the family who primarily take care of all the family members. their contribution to the family is definitely huge and immeasurable. unfortunately, their hard work for the family is often considered as a duty in nature and is often not regarded as a work in term of economics. in a comparative way, the same work done by women outside the household domain is paid and monetarily compensated by their employers. this leads to a social trend that women are more appreciated if they work outside the house and are neglected if they work in their own homes and family where the work is unrecognized, unpaid and a duty of the woman. like in many other countries as highlighted by the united nations, india also faces the impacts of the recession, unemployment and slow economic growth, on women and men differ due to gender norms and stereotypes that continue to spread gender-based discrimination in many areas, including access to productive assets and justice.77 this hence leads to degradation in the status of the women; also her role and power were not given the right due and recognition. in the patriarchal society of india, men have the ownership of the land. in bihar, one of the most underdeveloped states of india with great natural resources, only 72 samita senn. april 2000, “toward a feminist politics? the indian women’s movement in historical perspective, policy research report on gender and development”, working paper series no. 9, the world bank development research group/ poverty reduction and economic management network, 1, http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan051009.pdf. 73 world bank, “india cotton and textile industries: reforming to compete,” new delhi: allied publishers, 2000, 28. 74 malvika poonia. reinvestigating the chipko movement of 1973, international journal of environmental sciences, 6. no.5, 2016. p.841. 75 ibid. 76 see united nations, 2012, “women the future women want: a vision of sustainable development for all”, 5, http://www.uncclearn.org/sites/default/files/inventory/unwomen707.pdf. 110 knitting the future story of indian women: preventing violence, fostering development, and accelerating empowerment prerna s ramteke 1% of women are landowners.78 single ownership in the woman’s name or joint ownership in both names is still largely an untouched topic, a distant dream despite central and state government laws which allow equality of ownership.79 it can build an argument that gender mainstreaming in all sectors is a means to foster development in india. the concept of gender mainstreaming is defined by the united nations economic and social council (ecosoc) as follows: “mainstreaming a gender perspective is the process of assessing the implications for women and men of any planned action, including legislation, policies or programmes, in all areas and at all levels. it is a strategy for making women’s as well as men’s concerns and experiences an integral dimension of the design, implementation, monitoring, and evaluation of policies and programmes in all political, economic and societal spheres so that women and men benefit equally and inequality is not perpetuated. the ultimate goal is to achieve gender equality”.80 there have been some case studies that disseminate some practices of gender mainstreaming in india. in 2008, a united nations development programme (undp) publication discover gender mainstreaming with specific and a number of themes that have been successfully practiced in many states in india. this includes mobilizing communities on rights awareness through the saurashtra kachchh group on violence against women in gujarat, rehabilitation of victims of human trafficking by ngo network in meghalaya, and empowering women through literacy in uttarakhand.81 in 2011, asian development bank also releases a report concerning gender mainstreaming in india that mentions three major projects: urban water supply and environmental improvement in madhya pradesh project (uday), kolkata environmental improvement project, and tsunami emergency assistance (sector) project.82 usha bhasin, officer on special duty, doordarshan prasar bharati broadcasting corporation of india told to the world about india’s experience with mainstreaming gender in development and business models, particularly broadcasting. interestingly, as informed, there has been a moderate and widely accepted program that embedded 77 “women farmers of india: a growing force without a growing voice”, loc.cit. 78 ibid. 79 united nations, “agreed conclusions 1997/2 on mainstreaming a gender perspective into all policies and programmes in the united nations system”, official records of the general assembly, fiftysecond session, supplement no. 3 (a/52/3/rev.1), chap. iv, para. 4, http://www.un.org/womenwatch/ osagi/pdf/ecosocac1997.2.pdf. 80 united nations development programme, 2008, “good practices in gender mainstreaming case studies from india”, http://www.undp.org/content/dam/india/docs/good_practices_in_gender_mainstreaming.pdf. 81 asian development bank, 2011, “gender mainstreaming, case studies: india,” https://www. adb.org/sites/default/files/publication/29934/gender-mainstreaming-case-studies-india.pdf. udayana journal of law and culture vol. 01 no.2, july 2017 111 gender issues in any theme without explicitly branded it as a ‘women’ program or ‘about women’.83 maitrayee chaudhuri, a social science scholar at jawaharlal nehru university, new delhi, revealed that there appears to have been an unspoken consensus that women’s studies is a mainstream field and can, therefore, be made mandatory. she also thought that gender studies have been sufficiently mainstreamed to be incorporated into a topic of sociology seminars, a book chapter, or a topic on the reading list of a mainstream course.84 2.3. accelerating empowerment of women in india a recent study carried out by endalcachew bayeh regarding empowering women with regards to the issue of sustainable development in ethiopia stated that sustainable development is impossible without women’s empowerment and gender equality.85 the study recommends the government to take the following measures, inter alia, empowering women and making full use of their labour force for economic growth; educating and maintaining the health of women to enhance productivity and social development; providing women with fair representation across different decision-making levels of the government structure to better protect women’s interests and to achieve quality governance; and protecting women rights to ensure their active participation in a wide-range arena of the country.86 the concern of government of india for implementing various schemes for rural women’s welfare should be appreciated. there are at least 16 women empowerment schemes provided by the ministry of women and child development of the government of india.87 one of them is ujjawala, a comprehensive scheme for prevention of trafficking and rescue, rehabilitation and re-integration of victims of trafficking for commercial sexual exploitation that has been effective since 1 april 2016. the targeted group of this scheme is women and children who are vulnerable or victims of trafficking for commercial sexual exploitation.88 another scheme is swadhar greh that was introduced in 2015 that caters to primary needs of women in difficult 82 usha bhasin, “india’s experience with mainstreaming gender in development and business models”, http://www.unesco.org/fileadmin/multimedia/hq/ci/ci/pdf/events/gfmg_usha_bhasin.pdf. 83 chaudhuri, op.cit., 247-248. 84 endalcachew bayeh, “the role of empowering women and achieving gender equality to the sustainable development of ethiopia,” pacific science review b: humanities and social sciences 2 (2016), 38, http://ac.els-cdn.com/s2405883116300508/1-s2.0-s2405883116300508-main.pdf?_tid=f5384b4c5b19-11e7-909f-00000aab0f26&acdnat=1498555450_164b427a4b1643040834e9b8f2514f0a 85 ibid., 42. 86 ministry of women and child development of the government of india, “women empowerment schemes”,http://wcd.nic.in/schemes-listing/2405. 87 ministry of women and child development of the government of india, “comprehensive scheme for prevention of trafficking and rescue, rehabilitation and re-integration of victims of trafficking for commercial sexual exploitation”, 3, http://wcd.nic.in/sites/default/files/ujjawala%20new%20scheme.pdf. 112 knitting the future story of indian women: preventing violence, fostering development, and accelerating empowerment prerna s ramteke circumstances that is aimed, among others, to cater to the primary need of shelter, food, clothing, medical treatment and care of the women in distress and who is without any social and economic support.89 it provides legal services, vocational training, medical facilities, and counselling for beneficiaries above 18 years of age who are deserted and are without any social and economic support, survivors of natural disasters, prisoners released from jail, victims of domestic violence, trafficked women/girls rescued, and women affected by hiv/aids.90 the draft national policy for women 2016, ‘articulating a vision for empowerment of women, may 2016 ‘seems very promising for women development in india.91 it envisions a society in which, women attain their full potential and are able to participate as equal partners in all spheres of life and influence the process of social change.92 this draft of policy covers six priority areas: health including food security and nutrition; education; economy; governance and decision making; violence against women; enabling environment; and environment and climate change.93 interestingly, one of its objectives is mainstreaming gender in all-round development processes/programs/projects/ actions.94 interestingly, a number of banks provide microfinance to women groups that foster the development of women in india. the first example is the mann deshi mahila sahakari bank that was established in 1997 for and by rural women with a mission of rural economic empowerment, by providing capital and other financial services to impoverished women.95 currently, it has seven branches and has served over 200,000 women in maharashtra and become the second largest microfinance bank in india, with a 98% repayment rate.96 the second instance is the swashrayi mahila sewa sahakari bank that is owned by the self-employed women as shareholders where the policies are formulated by their own elected board of women workers.97 sewa is an abbreviation of self employed women’s association that is a trade union registered in 1972, an organization of poor and self-employed women workers who earn a living through their own labour or small businesses.98 88 guidelines, “swadhar greh: scheme that caters to primary needs of women in difficult circumstances (2015)”, 1, http://wcd.nic.in/sites/default/files/guidelines7815_2.pdf. 89 ibid., 2 & 7. 90 ministry of women and child development of the government of india, may 2016, “draft national policy for women 2016, articulating a vision for empowerment of women,” http://wcd.nic.in/sites/ default/files/draft%20national%20policy%20for%20women%202016_0.pdf 91 ibid., part 2. 92 ibid., part 5. 93 ibid., part 4. 94 http://www.manndeshibank.com/bank_about%20us.html. 95 ibid. 96 http://www.sewa.org/services_bank.asp. 97 http://www.sewa.org/about_us.asp. udayana journal of law and culture vol. 01 no.2, july 2017 113 the non-governmental organizations (ngos) also play a role in working for women empowerment. india women welfare foundation (iwwf) can be a perfect example. it commits to empower women through education, vocation, motivation, and inspiration, which leads towards their growth and sustainable development, shall be adhered to.99 3. conclusion some cases of violence against women as discussed in part 2.1. should be contemplated. both socio-cultural and legal approaches should work hand in hand. on one hand, socio-cultural obstacles related to patriarchy and stereotypes that demean women should be dealt with a gender approach. on the other hand, legislations should be enacted and modified to provide more protection in favour of women while law enforcement should also be taken seriously. part 2.2. that analyses conceptual approaches and facts regarding women and development in india is an indication of the dynamic development of indian women. they have a good history of successful movements that brought them to the arena where they could directly affect the development and also government policies. the efforts of mainstreaming gender are also positive signs of shifting them to a higher level of development. the analyses in part 2.3 stimulates that the acceleration of women empowerment in india is, inevitably, a necessity. the initiatives by the government of india, particularly programs carried out by ministry of women and child development, so far, have indicated the concern of government to empower its women. it must be taken into note that some non-governmental actors have also played a crucial role in this concern. this dual approach, both government and non-government, should be further maximized in order to accelerate women empowerment in india. the concern of the government of india to the sustainable development goals (sdgs), as has been previously explained in part 2.1.1, seems so promising. on the goal ‘achieve gender equality and empower all women and girls’, it is targeted inter alia ensures women’s full and effective participation and equal opportunities for leadership at all levels of decision-making in political, economic and public life; undertake reforms to give women equal rights to economic resources, as well as access to ownership and control over land and other forms of property, financial services, inheritance and natural resources, in accordance with national laws; and to adopt and strengthen sound policies and enforceable legislation for the promotion of gender equality and the empowerment of all women and girls at all levels.100 98 “women welfare”, http://www.womenwelfare.org/support_women.html. 99 “sustainable development goals (sdgs), targets, css, interventions, nodal and other ministries (as on 08.06.2016)”, parts 5.5, 5.a and 5.b, http://niti.gov.in/writereaddata/files/sdgsv20-mapping080616-dg_0.pdf 114 knitting the future story of indian women: preventing violence, fostering development, and accelerating empowerment prerna s ramteke it is a dream for both rural and urban women in india to be very much aware of their rights, privileges and enjoy the freedom and the rights bestowed upon them: a dream where they have good access and opportunities to obtain higher education and excel in sports, arts, music, and business. and a dream where they could proportionally compete with men, do as well or even better than men in many areas. these may not be just dreams but our upcoming future. no matter how the women in society are treated, ignored or suppressed, it must be recognized that their role is very vital in the process of development of the family, society/community, and even the nation. now is the time for women in india to take part in the efforts to knit their future story by leaving the unpleasant experiences of the past, carefully observing and learning the present situ ation and jointly working for the future higher levels of development. udayana journal of law and culture vol. 01 no.2, july 2017 115 bibliography book atal, yogesh, ed. sociology and social anthropology in india. new delhi: dorling kinderley-pearson education, 2009. bhattacharyya, arundhati. sexual harassment in the indian bureaucracy: violation of human rights. cambridge scholars publishing. 2016 fernandes, leela, ed. routledge handbook of gender in south asia. london-new york-routledge, 2014 hanne, addison. feminist economics. wfs publishing. 2015 sarkar, siuli. gender disparity in india: unheard whimpers. new delhi: phi learning pvt. ltd., 2016. journal bayeh, endalcachew. “the role of empowering women and achieving gender 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environment in indonesia which is part of the realization of a law state that guarantees the constitutional rights of its citizens. it is a legal research that reviews indonesian constitutional and statutory provisions, besides adding a comparative perspective from a japanese constitution and legal system. it is found that the concept of a law state in indonesia does not specifically follow the concept of a law state like what is meant in “rechtsstaat” or “the rule of law”. it has peculiar characteristics which indeed seem to adopt the noble values of those two concepts which clearly confesses in the constitution along with the elements and characters stated in it. one of the most prominent characteristics of a law state is the recognition and protection of human rights. in the indonesian constitution 1945, human rights as the fundamental rights of human beings have been arranged and compiled which is legally legitimized become constitutional rights. among human rights, rights related to the environment include essential rights in array of international human rights formulations. article 28 letter h of the indonesian constitution 1945 expressly states the rights to habitable and wholesome environment for citizen. the protection form can be a normative arrangement in the constitution or in a formal juridical through legislation. protection of citizens' constitutional rights related to the environment is faced with due process of environmental protection that requires consistency in order to achieve the intention and direction of the indonesian law state itself. keywords: a law state; citizens’ constitutional rights; environmental protection; indonesia; japan. how to cite (chicago 16th): dananjaya, nyoman satyayudha, and kazuhiko fuchikawa. “citizens’ constitutional rights regarding habitable and wholesome environment: towards a law state that protects the environment.” udayana journal of law and culture 4, no. 1 (2020): 81–103. https://doi.org/https://doi.org/10.24843/ujlc.2020.v04.i01.p05 . doi: https://doi.org/10.24843/ujlc.2020.v04.i01.p05 * email/corresponding author: g504sn@yamaguchi-u.ac.jp ** email : kf@yamaguchi-u.ac.jp https://ojs.unud.ac.id/index.php/ujlc/issue/view/3398 https://doi.org/10.24843/ujlc.2020.v04.i01.p05 mailto:g504sn@yamaguchi-u.ac.jp mailto:kf@yamaguchi-u.ac.jp citizens’ constitutional rights regarding habitable and wholesome environment: towards a law state that protects the environment nyoman satyayudha dananjaya and kazuhiko fuchikawa 82 1. introduction the concept of law state has been thought of by philosophers and legal experts. this concept is built by putting the law as a functional and fairness system. the thought of a law state began when a greek philosopher plato presented the concept of good state administration, starts with his book named politeia (the republic) 1 and ends with nomoi (the laws) 2 described as regards the state and the law in relation to realizing the concept of the state and the implementation of an ideal state would only be able to be governed by laws. from the philosopher's thought, in ancient european civilization times, the law has been placed as a central point in people's lives in a region (state), indicating that the law in a state occupies an important position. a law state is a state that stands on a legal basis to organize the life of the nation and the state of its citizens as well as the relationship between the state and its citizens. it is understandable that every citizen is a human being wherever they are always bound by the rules (laws) or norms of life. the affirmation of a state as a law state is put on the presence or absence of a constitution, a defining affirmation that the constitution is a special national document and at the same time is a legal and political document. the constitution contains the basic framework, structure, functions and rights of state institutions, the relations between the state and its citizens regarding citizens’ constitutional rights and supervision of the implementation of good governance. this is what the so-called constitutionalism is descriptive of complex concepts, embedded in historical experience, which subdue officials who use government power restricted by a higher law. this also means that if a state that is restricted by constitutional law in using its power, then the administration of its government will be orderly and prosperous. there is a perception in the modern state which is then accepted as the fundamental principle for governance that a constitution that is not based on constitutionalism is not considered as a veritable constitution.3 therefore, every independent state has a constitution, which constitution is likened to a reflection of the soul of 1the republic is a socratic dialogue written by plato concerning justice, character of the equitable city-state, and the just man. see plato, the republic of plato (london: francis macdonald cornford trans, oxford university press1941), 41-139, 265. 2 the laws is plato's final and extensive dialogue. the conversation described in the work's twelve books begins with the purpose of government, examines the origins of government and the merits of different constitutions, analyzes the correct method for legislating law, on midway of the books describing the legal positions, introduces criminal law include how determining a punishment and ends with legal code. the laws afterthought on the ethics of government and law have established it as a classic of political philosophy. see plato, the laws of plato (london: thomas l. pangle trans., the university of chicago press 1980), 3-88, 137-77, 245-79. 3 ito m, “the modern development of law and constitution in japan,” in japan legal system: text and material, ed. meryll dean, (london: cavendish publishing limited 1997), 520-521. https://en.wikipedia.org/wiki/plato https://en.wikipedia.org/wiki/dialogue https://en.wikipedia.org/wiki/political_philosophy https://en.wikipedia.org/wiki/political_philosophy udayana journal of law and culture vol. 4 no. 1, january 2020 83 a state. to the extent of achieving the ideals of a law state, the substance of the constitution needs to be implemented. one of the substances contained in the state constitution is a regulation related to human rights. in the japanese constitution, japan is a state that places human rights as an important pillar. the protection of the environment is one of the main agendas that continue to be maintained. japan strongly supports un activities in the human rights field, believing that all human rights are universal.4 in the japanese constitution, the article 11 states that people must not be obstructed in obtaining human rights. human rights are guaranteed by the constitution. likewise, in the article 25 states that all people have the right to maintain a minimum standard of healthy and cultured living. in all spheres of life, the state must use its endeavors to promote and expand social welfare and security, and public health. this is then implemented through environmental policy and protection established in various laws and regulations which then begin with the issuance of the basic environment law and the basic environment plan. fulfilling and protecting human rights (as a fundamental rights of human beings) is an absolute element that must exist in the constitution.5 the human rights were published as a form of state recognition and as a guarantee of state protection for the rights of citizens, so that the rights are legally legitimate. thus, it will bring up a legal consequence that any form of policy and legislation that is enacted may not violate or negate these rights. human rights are rights that universally recognized in intercommunication of nations as part of the international community. human rights are inherent rights of all humans, regardless of our nationality, place of residence, gender, national origin or ethnicity, color, religion, language or another status. we are all equally entitled to our human rights without discrimination. this is the essence of articles 1 and 2 of the universal declaration of human rights initiated on 10 december 1948. since its declaration, several human rights in the universal declaration of human 4 see ministry of foreign affairs of japan, human rights, humanitarian assistance, refugees, available at https://www.mofa.go.jp/policy/human/index.html 5 as a comparison, in japan, in the context of japanese history, although it is usual to speak of the 1946 constitution as the new constitution which in global context it is one of the more long-lived and enduring constitution, there are three pillars of the present constitutional framework; popular sovereignty, pacifism and protection of fundamental human rights are based upon the foundation of respect to the rule of law and are guaranteed by the supreme court through the use of judicial review...this is demonstrated by the fact that fundamental human rights are protected against the arbitrary exercise of government power... see meryll dean, japanese legal system: text and material (cavendish publishing limited 1997), 506. see also hiroshi oda, japanese law (new york, oxford university press 3rd ed.2009), 28-30 mentioned that there is an extensive bill of rights in the constitution and respect for fundamental human rights is one of the three fundamental principles underlying the present constitution of japan. fundamental human rights guaranteed by the constitutions are coffered upon the people as eternal and inviolable rights. https://www.mofa.go.jp/policy/human/index.html citizens’ constitutional rights regarding habitable and wholesome environment: towards a law state that protects the environment nyoman satyayudha dananjaya and kazuhiko fuchikawa 84 rights or commonly called the 1948 udhr6, it has been gradually adopted by countries as a normative recognition which then mainly placed in their constitution. when human rights are stated in the constitution of a state, hence, human rights are constitutional rights.7 this paper aims to examine the protection of the environment in indonesia which is part of the realization of a law state that guarantees the constitutional rights of its citizens. furthermore, this paper questions who has constitutional rights? are there certain requirements to have constitutional rights? likewise, the right to a good and healthy environment as one of the constitutional rights of citizens. does the inclusion of the right to a good and healthy environment into the constitution as a constitutional right for indonesian citizens can guarantee the protection of the citizens' constitutional rights? nevertheless, what is stated in the constitution as a constitutional right can be interpreted that the implementation of protection and law enforcement will run well? as an introduction, this paper describes the concept of a law state, constitution and human rights in the constitution as constitutional rights. this paper also explains the essence of the ideals law state by giving state guarantees to the protection of its citizens' constitutional rights. in result and discussion section will elaborate on the conceptional framework of indonesian law state and the citizen’s constitutional rights in the conception of indonesian law state. after that, the discussion will then elucidate the protection of citizens’ constitution rights related to the habitable and wholesome environment as an issue to examine. furthermore, this paper will compare the constitutional perspectives for environmental protection in indonesia and japan before giving a conclusion as to the last part of this paper. 2. result and discussion 2.1 the conceptional framework of indonesian law state in a law state, the existence of a constitution is very important. the constitution and the state are likened to two things that inseparable existence. this is a logical consequence of the fact that without a 6 the universal declaration of human rights (udhr) is a milestone document in the history of human rights. drafted by representatives with different legal and cultural backgrounds from all regions of the world, the declaration was proclaimed by the united nations general assembly in paris on 10 december 1948 (general assembly resolution 217 a) as a common standard of achievements for all peoples and all nations. it sets out, for the first time, fundamental human rights to be protected universally, available at www.un.org/en/universal-declaration-human-rights/. 7 jimly asshidiqie, pengantar ilmu hukum tata negara [the introduction of constitutional law] 134 (jakarta, konstitusi press 2006). see also gerald l. neuman, human rights and constitutional rights: harmony and dissonance stan. l. rev. 55 (2003): 1863-1900, 1865 … and will refer to individual rights protected by national constitution as “constitutional rights”. http://www.un.org/en/ga/search/view_doc.asp?symbol=a/res/217(iii) http://www.un.org/en/ga/search/view_doc.asp?symbol=a/res/217(iii) http://,/ http://www.un.org/en/universal-declaration-human-rights/ udayana journal of law and culture vol. 4 no. 1, january 2020 85 constitution, a state cannot be formed due to the existence as a state fundamental law. the constitution is an assurance in realizing a law state, and in a law state, the importance of the existence of a constitution as a state fundamental law because the state which is regulated by the law brings up to a conception of the law state. in general, the conception of law state is always oriented towards two different legal systems, namely the common law legal system and the civil law legal system. these two legal systems use different terms, namely “rechtsstaat” and “the rule of law”. 8 in the continental european legal system, the term rechtsstaat is also referred to by other terms such as the concept of legality or l’état de droit. the term of the rule of law became popular in anglo-american legal system after the publication of albert venn dicey book in 1885.9 the terminology used to refer a law state at that time, “rechtsstaat” and “the rule of law” has a different historical background. in europe, rechtsstaat emerges rapidly and comprehensively which rests on a legal system known as the civil law legal system. the rechsstaat, however, was more complex and regarded government both “as the representative of the general will (restricting the administration to the application of the enacted law) and as having its own particular will (based on the government’s subjective right to command). 10 the genuine concept of rechtsstaat by establishing government legitimacy through compliance with laws. 11 towards the end of the 19th century, the concept of rechtsstaat changed and requires substantive legitimacy such as the protection of human rights. 12 conversely the rule of law has developed gradually which then relies on common law legal systems. these two terminologies (rechtsstaat and the rule of law) in principle lead to one main understanding and meaning, namely a law state. both terminologies are meant to view the law as an effective means of managing the nation and state life. however, there are many differences that clearly be seen from both rechtsstaat and the rule of law. rechtsstaat, in principle, contains basic features including the protection of human rights, the separation or division of powers of state institutions in order to guarantee the implementation of the state power, and the existence of administrative justice. the rule of law in principle 8 see james r. silkenat, james e. hickey jr., peter d. barenboim, eds. the legal doctrines of the rule of law and the legal state (rechsstaat), (switzerland: springer, 2014),15-104. 145-151. 9 see albert venn dicey, introduction to the study of the law of the constitution, (london: macmillan, 8th ed. 1915), 107-122. 10 mireille hildebrandt, “justice and police: regulatory offenses and the criminal law." new criminal law review: in international and interdisciplinary journal 12, no. 1 (2009): 43, 59. 11 ibid. 12 ibid., 56. citizens’ constitutional rights regarding habitable and wholesome environment: towards a law state that protects the environment nyoman satyayudha dananjaya and kazuhiko fuchikawa 86 contains basic characteristics such as the existence of the supremacy of law, equality before the law and a guarantee of protection of human rights. the traditional anglo-american concept of the rule of law is also more precisely defined as consisting of two interdependent components: 1) the obligation of citizens to comply with the law and 2) government compliance with the law. 13 in a law state that embraces rechtsstaat, it is clearly seen how important administrative justice as a differentiating tool to other legal systems. in a law state that adheres to the rule of law, places the importance of equality before the law. the history of indonesian constitutionality describes the concept of a law state which is affirmed in the constitution. this means that the concept of a law state is more directed towards the realization of a prosperous state and provides protection to the nation. thus, the decent implementation of the state constitution can provide guarantees to embody the state based on the law. wheare defines the constitution of a state as “… the state’s governance system, a set of rules which establish and govern the state”.14 thomas paine reveals more broadly that “a constitution is not the act of a government, but of a people constituting a government, and a government without constitution is power without right… a constitution is something precedes the government and a government is only a constitutional creature.15 although there are several constitutions that have been implemented in indonesia, there have been replaced/amended, but the affirmation of indonesia as a law state is always stated in the constitution. this shows that indonesia itself views the importance of the concept of a law state in organizing the life of the nation and state. both in the constitution that was once implemented in indonesia16 such as the indonesian constitution 1945, the indonesian federal constitution 1949 and the indonesian provisional constitution 1950 until the re-enactment of the indonesian constitution 1945 to the amended indonesian constitution 1945, the concept of a law state always received its own emphasis in the constitution. in the indonesian constitution 1945 before the amendment, both in the preamble and the body or its articles, no formulation or term of a law 13 see michel rosenfeld, the rule of law and the legitimacy of constitutional democracy, s. cal. l. rev. 74 (2001), 1307, 1335-36 14 k.c wheare, modern constitutions (new york: oxford university press, 2nd ed.1966), 1. 15 thomas paine, the rights of man 1971-1972, ed. h collins, (penguin classics 1969), 93. 16 the indonesian constitution 1945 (commonly called the constitution of the republic of indonesia year 1945) remained in effect until it was replaced by the federal constitution on december 27, 1949. then replaced by the provisional constitution on august 17, 1950. finally, at 5 july 1959 president sukarno issued a decree returning to the 1945 indonesian constitution. udayana journal of law and culture vol. 4 no. 1, january 2020 87 state was found. the term of a law state is only found in the explanatory section, namely "the state government system", stated that "indonesia is a state based on law (rechtsstaat)" and described by a sentence “the state of indonesia is based on law (rechtsstaat), not based on mere power (machtsstaat). the expression that mentioned state based on law (rechtsstaat) is a term or formula often used in the continent of europe. therefore, it indicates that the substance of the indonesian law state is inseparable from the influence of the notions, characteristics, and elements of the law state known in continental european countries. whereas, in the amended indonesian constitution 1945, the affirmation of the indonesian law state was stated in the third amendment to the indonesian constitution 1945, in article 1 subsection (3) which states that "indonesia is a law state". however, no explanation is found regarding the actual law state that indonesia currently adheres to, whether it is a law state in the sense of “rechtsstaat” or a law state in the sense of “the rule of law” or even a law state with its own characteristics. when looking at the statements regarding a law state as outlined in the indonesian constitution 1945 on the third amendment, where no further elaboration is found in the explanation section, it can be understood that a law state adopted by indonesia has its own character. the application of the principle of a law state in indonesia can be said to be carried out without referring directly to one concept of a law state as intended in “rechtsstaat” or “the rule of law”. the concept of a law state in indonesia applies the principles in the general concept of a law state outlined in “rechsstaat” and “the rule of law”. thus, it is more accurately mentioned as “the indonesian law state”. based on its implementation, important elements of the law state are well realized. the indonesian law state, in general, explained the administration of the state based on applicable laws and regulations, the protection of human rights as a citizen constitutional right 17 , separation or division power, 18 the implementation of popular sovereignty, 19 and the existence of a state administrative court20 are still used as a basis in realizing a law state in 17 as formulated in the second amendment to the indonesian constitution 1945, there are 27 propositions concerning human rights contained therein, the provisions concerning human rights have received constitutional assurance contained in chapter xa concerning human rights articles 28a-28j and chapter xi concerning religion article 29 subsection (2) of the second amendment to the indonesian constitution 1945. 18 the division of power referred in the concept of the law state are legislative, executive and judicial power. in indonesian constitution 1945, legislative power can be seen in the provisions of chapter vii concerning the people's representative council, and chapter vii a concerning the regional representative council. carrying out the executive powers is contained in the provisions of chapter iii concerning the power of state government and with regard to the judicial power in the provisions of chapter ix concerning judicial power. 19 the constitution of indonesia 1945, chapter i concerning state form and sovereignty, article 1, subsection (2) of the indonesian constitution 1945. 20 ibid, chapter ix concerning judicial power, article 24, subsection (2). citizens’ constitutional rights regarding habitable and wholesome environment: towards a law state that protects the environment nyoman satyayudha dananjaya and kazuhiko fuchikawa 88 indonesia. the indonesian law state also applies the principle in “the rule of law” concept such as the supremacy of law which requires that the law must be upheld which can be affirmed by the sentence that the law is commander, the administration of the state is based on law not by men/individual. in addition, the principle of equality before the law 21 and the principles of independence and impartially of the judiciary to realize the due process of law are also determined as elements of the indonesian law state.22 the elaboration of the principles of the law state contained in the indonesian constitution, the application of the law state principle in indonesia is based on its own principle which may not always be in full alignment with the principles of the law state as it was known in the early birth of the concept of the law state. re-formulation of the main idea of the concept of law state is interpreted as a form of dynamics or the development of a law state at the present era. even so, it will be the main pillars that support the upholding of a modern law state that can realize the goals and ideals contained in the constitution, namely justice and prosperity. 2.2 the citizens’ constitutional rights in indonesian law state conception jimly asshiddiqie argues that one of the absolute elements that must exist in a law state itself is regarding the fulfillment of human rights. therefore, indonesia which is a state based on law, has an obligation to guarantee and protect its citizens.23 in the constitution of indonesia 1945, it clearly states the rights of citizens, hereinafter referred to as constitutional rights. in the implementation of the constitution in indonesia, human rights are manifested in a legal legitimacy become constitutional rights. i dewa gede palguna mentioned 24 the use of the term "human rights" has a universal spectrum with a broader scope than the term "constitutional rights". constitutional rights have a domestic scope that applies to the positive law of a state. the development of human rights at the international level provides an impetus for the recognition of its existence at the national level as constitutional rights. however, it does not mean that there is a dichotomy among them. human rights and constitutional rights have similar functions, substances, and structures. 25 the function of both is limiting government power and 21 ibid, chapter x concerning citizen and population, article 27, subsection (1). 22 ibid, chapter ix concerning judicial power, article 24, subsection (1). 23 jimly assiddiqie, pengantar ilmu hukum tata negara, cetakan kedua, [introduction to constitutional law], (jakarta: rajawali press 2nd ed. 2010), 343. 24 i dewa gede palguna, pengaduan konstitusional: upaya hukum terhadap pelanggaran hak-hak konstitusional warga negara [constitutional complaints: legal efforts against violations of citizens’ constitutional rights], (jakarta: sinar grafika 2013), 131. 25 see stephen gardbaum, human rights as international constitutional rights, the eur j. of int’r law 19, no.4 (2008): 749-768, 750-751. udayana journal of law and culture vol. 4 no. 1, january 2020 89 protecting the basic rights of every citizen. 26 substantially, both of them contain basic rights such as economic, social, cultural, civil and political rights, besides the protection of minority group rights and environmental protection.27 in addition, human rights and constitutional rights also have a similar structure where there is a distinction between rights that can be restricted (derogable rights) and cannot be restricted or reduced by the element of fulfillment (non-derogable rights).28 constitutional rights29 are assertively defined and written in a state constitution as the supreme law of the land, meaning that any other laws in contradiction with it are unconstitutional and thus declared as invalid. the form of legitimacy is found in the body of the indonesian constitution 1945. the norms contained in the indonesian constitution 1945 not only regulate the relations between state institutions that giving rise to the constitutional authorities but also regulate relations between the state and its citizens in the context that is dealing with the constitutional rights of its citizens. the indonesian constitution 1945 determines the structure, functions, powers, restrictions on the government and the individual freedoms, rights, and obligations which will be protected and enforced by state institutions that have a constitutional authority. in this connection, the citizens’ rights determined in the indonesian constitution 1945 as constitutional rights are a form of protection for citizens from state actions in the administration of the state. addressing the citizens’ constitutional rights, it can be explained that the citizens’ constitutional rights are rights granted by the state given due to legitimated citizenship status in the indonesian constitution 1945. the citizenship of an individual determines many aspects of the relation which a person has with the state of which he or she is a national, and with other states. 30 this citizens’ constitutional rights are the result of legitimacy recognized in the constitution and other legislations. rights of citizens are rights granted by the state on citizenship status according to the laws and regulations. 26 gerald l. neuman, op.cit., 1863-1865. 27 stephen gardbaum, op.cit., 750. 28 see stephen gardbaum, the ‘horizontal’ effect of constitutional rights, mich. l. rev 102, (2003): 387-458. note: the term derogable rights is defined as rights that can still be deferred or limited (reduced) fulfillment by the state under certain conditions. meanwhile the term non derogable rights means that there are rights that cannot be deferred or limited (reduced) by the state, even though in an emergency. 29 the indonesian constitution 1945 does not provide the meaning/definition of constitutional rights. in indonesian positive law, the meaning/definition of constitutional rights is determined in act number 24 year 2003 jo. act number 8 year 2011 concerning constitutional courts where constitutional rights are rights that are regulated in the indonesian constitution 1945. 30 a.w. bradley and k.d. ewing, constitutional and administrative law (pearson education limited 13th ed. 2003), 425. https://en.wikipedia.org/wiki/rights https://en.wikipedia.org/wiki/constitution citizens’ constitutional rights regarding habitable and wholesome environment: towards a law state that protects the environment nyoman satyayudha dananjaya and kazuhiko fuchikawa 90 in achieving the ideals of state, one of the substances contained in the state constitution is the regulation related to human rights. a state that adheres to the rule of law or rechtsstaat (law state), one of the elements that must absolutely exist is the fulfillment of human rights (as a fundamental rights). the human rights are as a form of state recognition and state protection for the basic rights of citizens, so that the rights are legally legitimate. the consequence is that any applicable form of policy and legislation may not violate or nullify human rights (as fundamental rights). constitutional rights are also related to the state's recognition of the subject of constitutional rights, namely citizens. an indonesian citizen is a person who legally recognized and legalized by indonesian laws and regulations. therefore, as an indonesian citizen, they have the same and equal rights. constitutional rights can be seen as reciprocity of constitutional obligations, so that constitutional rights and constitutional obligations cannot be separated, where it can be explained that the existence of constitutional rights is due to the existence of constitutional obligations raised of the indonesian constitution 1945. constitutional obligations are the consequence of citizens in their position on enforcing actions that are required by the state. citizens’ constitutional rights are acquiring protection from the state actions in state administration due to guaranteed by the state constitution. such rights must not be violated and become a barrier to state actions. 2.3 the protection of citizens’ constitutional rights assignation of the rights to habitable and wholesome environment has an important meaning and rights as citizens' rights. in the history of its development, rights to the environment are a human right. a comprehension that can be traced and also be juxtaposed with article 25 of the udhr31 which states, “everyone has the right to a standard of living adequate for the wholesome and well-being of himself and of his family”. whereas in article 12 paragraph (1) icescr32 is affirmed, “the states in this 31 the universal declaration of human rights (udhr) then has been adopted by the united nations general assembly on 10 december 1948 as resolution 217 at the palais de chaillot in paris. it consists 30 articles affirming an individual's rights, it has been elaborated in international treaties, regional human rights instruments, national constitutions, and other laws. it was the first step of formulating process of the international bill of human rights which was completed in 1966 and a sufficient number of countries had ratified. 32 on 16 december 1966 through ga. resolution 2200a (xxi), a multilateral treaty called the international covenant on economic, social and cultural rights (icescr) adopted by the united nations general assembly and came in force from 3 january 1976. in general comment 14, paragraphs 11–12, in connection with habitable and wholesome environment mentioned that “states must protect this right by ensuring that everyone within their jurisdiction has access to the underlying determinants of health, such as clean water, sanitation, nutrition and housing, and through a comprehensive system of healthcare, which is available to everyone without discrimination, and economically https://en.wikipedia.org/wiki/united_nations_general_assembly https://en.wikipedia.org/wiki/united_nations_general_assembly_resolution_217 https://en.wikipedia.org/wiki/palais_de_chaillot https://en.wikipedia.org/wiki/palais_de_chaillot https://en.wikipedia.org/wiki/paris https://en.wikipedia.org/wiki/rights https://en.wikipedia.org/wiki/human_rights https://en.wikipedia.org/wiki/international_bill_of_human_rights https://en.wikipedia.org/wiki/united_nations_general_assembly udayana journal of law and culture vol. 4 no. 1, january 2020 91 covenant recognize the right of everyone to relish the utmost standard of physical and mental health”. signify, the life needs of indonesian citizens must also be fulfilled according to adequate measures both for their health and other matters related to the support of one's life. more broadly, this norm is reinforced by its meaning as one of the state goals and ideals (staatliche ideale) in the preamble on 4th paragraph of the constitution of indonesia 1945, namely, to protect the entire indonesian nation. this provision implies that every citizen has the right and constitutional guarantee to live and obtain habitable and wholesome environment to grow and develop. the meaning of habitable and wholesome environment can be seen in its philosophical foundation (the highest law of the land). it was mentioned that habitable and wholesome environment is the fundamental rights of every indonesian citizen as mandated in article 28 h of the constitution of indonesia 1945. thus, the recognition of the rights to habitable and wholesome environment as human rights then becomes a constitutional right for every citizen in indonesia. therefore, the state (through state administrators) and all stakeholders are obliged to protect the environment in the implementation of environmentally sustainable development and for the benefit of mankind at present and in the future. recognizing a constitutional right to environmental protection would similarly curtail the power of a legislature to permit tampering with the environment. this has not assumed that the right of the environment is so important that a court will take the step necessary to assure its protection. the judicial process, problems complexity, likewise conformity of institutions for expressing values and devising solutions are worthy of the most serious consideration in determining the existence and scope of any constitutional right to a livable environment. but such considerations do not necessarily preclude the right's existence nor, at this point, delimit its scope.33 the court will find that the state action requirement is met the erect manageable judicial standard and impose an affirmative duty on the state to regulate private interest all in the name of the environment.34 protection of constitutional rights can be proven by the existence of constitutional rights as a limitation for the actions of the state power holder which leads to strict legal mechanisms in protecting the constitutional rights of citizens. there are mechanisms that can be used to provide protection against constitutional rights through litigation as follows: accessible to all”. 33 see ronald e. klipsch, aspects of a constitutional right to a habitable environment:towards an environmental due process, ind. l.j. 49 (1974): 204-206. 34 see john y. pearson jr., toward a constitutionally protected environment, va. l. rev. 56, (1970): 458-86, 470-75. citizens’ constitutional rights regarding habitable and wholesome environment: towards a law state that protects the environment nyoman satyayudha dananjaya and kazuhiko fuchikawa 92 a. through the constitutional court there are at least 5 functions attached to the existence of a constitutional court and are carried out through its authority, one of which is as a protector of the citizens’ constitutional rights.35 the constitutional court is a state institution that has the competence to adjudicate the review of the constitutionality of the act as an effort to enforce the citizens’ constitutional rights over the negligence of the legislative and executive power in drafting the act that violates the constitutional rights of citizens. hans kelsen stated that the application of the constitutional rules concerning legislation can be effectively guaranteed only if an organ other than the legislative body is entrusted with the task of testing whether a law is constitutional, and of annulling it if according to the opinion this organ it is “unconstitutional”.36 he argues there is a special organ established for this purpose, for instance, a special court, a so-called “constitutional court”. in indonesia, through constitutional court, the efforts to assure the constitutionality are by both judicial review and constitutional complaint. judicial review and constitutional complaint must be distinguished because the judicial review is an attempt to examine the constitutionality of the law enacted in society, while a constitutional complaint is an attempt to examine the constitutionality of the state power holder actions. 37 these two procedures are indeed legal efforts that can be pursued in defending citizen constitutional rights. however, judicial review can be seen as a legal procedure in examining the constitutionality in a narrow sense. it is different from a constitutional complaint. if it is related to the concept of a law state and sovereignty, a constitutional complaint is a legal procedure in the broad sense that protects citizen rights. b. through the state administrative court the hearing procedural in state administrative court is used as one of the legal efforts to protect the constitutional rights of citizens where there is a violation of the citizens’ constitutional rights because of the issuance of the administrative decree by the administrative institutions or officer due to contrary to the laws and regulations. there are 3 (three) meanings contrary to the laws and regulations, namely: a) contrary to the provisions of the formal laws and regulations; b) contrary to the provisions of material laws and regulations; 35 nilwan wilze ananda zen, untung dwi hananto, and amalia diamantina jaminan hak-hak konstitutional warga negara (the protector of citizen constitutional right) dengan implementasi constitutional complaint melalui mahkamah konstitusi di negara republik indonesia, diponegoro l. rev 5, no. 2 (2016): 1-24. 36 see hans kelsen, general theory of law and state, (new york: anders wedberg trans., russell & russell 1945), 157 37 i dewa gede palguna, op.cit, 153. https://scholar.google.com/scholar?q=nilwan+wize+ananda+zen*,+untung+dwi+hananto,+amalia+diamantina udayana journal of law and culture vol. 4 no. 1, january 2020 93 c) issued by an unauthorized state administration institutions or officer.38 c. through the general court in the procedure of the general judiciary through general court, there are two types of cases which are the absolute competence of the court in examining and adjudicating cases, namely courts for criminal cases and courts for civil cases. in the civil cases, this legal mechanism can be pursued if one party feels harmed conducted by another party so that one party to be impaired by its constitutional rights. while in a criminal case, the case is between individuals and/or legal entities for the actions of one of the parties who have fulfilled the elements of violations of criminal law provisions. the protection of the constitutional rights of citizens can be done through filing claims and/or lawsuits in the first instance court, appeals in the high court, cassation and judicial review in the supreme court. in general, the purpose of this judicial system contains the principle of protecting human dignity.39 2.4 the constitutional perspective of environmental protection in indonesia and japan: a brief understanding 2.4.1 environmental protection in indonesia habitable and wholesome environment as a citizens’ constitutional rights contains environmental meanings that can enable humans to develop optimally, in harmony and balance. the existence of this assurance gives the possibility for everyone to demand the state that habitable and wholesome of their environment needs to be considered and improved continuously. therefore, the state has an obligation to provide habitable and wholesome environment for its citizens and continuously make efforts to protect and manage the environment. the recognition of the right to habitable and wholesome environment in indonesia cannot be separated from international influences because indonesia is part of a state in the world. internationally, the right of habitable environment is contained in the stockholm declaration, the second part of the stockholm declaration 40 . during the preparation, delegates at the conference thought the stockholm declaration should begin 38 see phillipus m. hadjon, pengantar hukum administrasi negara indonesia [introduction to indonesian state administration law], (yogyakarta: gadjah mada university press, 2005), 326-327. 39 i dewa gede palguna, loc.cit. 40 the united nations conference, having met at stockholm from 5 to 16 june 1972, having considered the need for a common outlook and principles to inspire and guide the peoples in the preservation and enhancement of the human environment. on the report proclaimed 26 principles, commonly called declaration of the united nations conference on the human environment in 21st plenary meeting on the 16th of june 1972. citizens’ constitutional rights regarding habitable and wholesome environment: towards a law state that protects the environment nyoman satyayudha dananjaya and kazuhiko fuchikawa 94 with the affirmation that every human being has the right to a decent or wholesome environment. principle 1 stockholm declaration mentioned41: “man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations...”. links to human rights and environmental protection, the first sentence has given interpretations. narrowly, it restates pre-existing international human rights of liberty, equality and an adequate standard of living, but innovates in adding that the implementation of these rights depends upon environmental conditions, reflecting the perception that environmental degradation takes effect on the human rights. broadly, principle 1 stockholm declaration supported a growing movement to recognize the right to a habitable and wholesome environment as a human right. in the article 28 letter (h) of the indonesian constitution 1945 states that every person has the right to live physically and mentally, live and get habitable and wholesome environment and is entitled to health services. the mandatory of the indonesian constitution 1945 clearly considers that the need to get a wholesome environment is one of the fundamental rights. the state is obliged to provide protection and guarantee for habitable and wholesome environment. therefore, the state must have a strong authority in managing and protecting the environment. the constitutional clearly inspires (obligates) the need for the state to create a comprehensive rule that is oriented far ahead. the elaboration on the constitutionality of environmental protection along with the citizens rights to the environment are set forth in the environmental law. the act number 32 year 2009 42 concerning environmental protection and management (hereinafter referred to environmental act) 43 as a primary act of the environmental law in indonesia is a legislation which is the implementation of the provisions of article 28 letter (h) in the indonesian constitution 1945. it contains norm to 41 see dinah selton, human rights, health & environmental protection: linkages in law & practice, health and human rights working paper series no 1 a background paper for the world health organization. see also dinah selton stockholm declaration (1972) and rio declaration (1992), oxford public international law, available at http://opil.ouplaw.com/view/10.1093/law:epil /9780199231690/law-9780199231690e1608#law-9780199231690-e1608-div1-2. 42 this environmental act is applied in indonesia as a replacement of the two previous environmental acts. the first, act no. 4 year 1982 concerning the basic provisions of environmental management, the second, the act no. 23 year 1997 concerning environmental management. this replacement occurred due to the argument and opinion at that time that the previous act had not been able to answer the challenges and environmental problems that occurred in indonesia. 43 in indonesia, informally, uupplh refer to this environment act because it is the abbreviation of undang undang perlindungan dan pengelolaan lingkungan hidup (the environmental protection and management act). http://opil.ouplaw.com/view/10.1093/law:epil%20/9780199231690/law-9780199231690-e1608#law-9780199231690-e1608-div1-2 http://opil.ouplaw.com/view/10.1093/law:epil%20/9780199231690/law-9780199231690-e1608#law-9780199231690-e1608-div1-2 udayana journal of law and culture vol. 4 no. 1, january 2020 95 settle environmental cases by using case settlement mechanisms through administrative law, civil law and criminal law procedures to provide protection and law enforcement efforts. therefore, in all aspects of the environment, there will always be interconnection with basic rights whether with the scope of administrative, civil or criminal. in the environmental act, it includes human elements and all their behavior, therefore, humans as environmental subjects have a role that includes rights and obligations as well as participating in environmental sustainability. the right to habitable and wholesome environment as a subjective right is the broadest form of citizen protection. what is called "subjective rights" in this context is the most extensive form of protection. subjective rights provide legal rights to claim their interests in a livable environment, claims that can be upheld by legal procedures and must be respected.44 so that, the rights for habitable and wholesome environment as a fundamental right for citizen must be protected to get an environment that can affect the survival of humans and other living things that will be spared from environmental pollution and destruction. in accordance with article 65 paragraph 1 up to paragraph 5 of environmental act, it can be found that the rights which are contained in the environmental field are: a. the rights to good environmental, b. the rights to obtain environmental education, c. the rights to access information, access to participation and access to justice in fulfilling the rights of habitable and wholesome environment, d. the rights to submit proposals and/or objections for business plans and/or activities that are expected to have an impact on the environment, e. the rights to have a role in environmental protection and management, f. the rights to file complaints/ file a sue due to environmental pollution and/or destruction. the rights mentioned above can be grouped into two types of due process of right. first, substantive due process rights (substantive right to environmental quality in the form of rights to obtain habitable and wholesome environment). second, procedural due process of right that includes the rights to get access for justice, the rights to participate, and the rights to file complaints/file a sue. however, the court has not always distinguished substantive and procedural due process in setting forth such 44 subjective rights are claims that are legally and lawfully recognized by legal subjects for certain legal objects. therefore, when a legal subject acquires the right to an object as a real relationship with that object, that right is a subjective right see heinhard steiger et.al., tendances actuelles de la politique et du droit de l'environnement (the fundamental right to a decent environment, trends in environmental policy and law), iucn-wwf (project no. 1244) 2-5 (1980). citizens’ constitutional rights regarding habitable and wholesome environment: towards a law state that protects the environment nyoman satyayudha dananjaya and kazuhiko fuchikawa 96 standards. the court has maintained, in effect, that the due process clause empowers the judiciary to impose natural law limitations upon the conductregulating and enforcement.45 2.4.2 environmental protection in japan in japan, protecting the rights of citizens to good, wholesome and livable environments is an important priority. constitutional protection of these rights can be seen in the provisions of the japanese constitution in chapter iii concerning rights and duties of people article 11 states that the people must not be prevented from obtaining human rights. human rights are guaranteed by the constitution which is given to present and future generations as perpetual and inviolable rights. article 11 is a strengthening of understanding that the right to a wholesome environment is a human right that gets protection from the constitution. this is confirmed in article 25 states that all people have the right to maintain a minimum standard of healthy and cultured living. in all spheres of life, the state must use its endeavors to promote and expand social welfare and security, and public health. japanese people believe that this right guaranteed by the constitution is a long struggle that cannot be contested. article 97 emphasized that fundamental human rights have been guaranteed by the japanese people as a human struggle to be free; they have survived various obstacles that demand endurance and given to present and future generations in trust, which will be held all time without being contested. as well as in indonesia, in the 1960s, japan also faced many environmental problems and had not been able to guarantee the right to habitable and wholesome environment to the citizen. japan be avowed as the most polluted state in the world due to rapid industrialization with a lack of pollution control. in early 1960s, japan began to think about comprehensive pollution control policies. several factors have accelerated their realization. people's dissatisfaction with the national environmental policy has arisen since the "big four" case and people are aware of the continuing problem of cross-border pollution involving several prefectures.46 these were the kumamoto minamata disease ( 熊 本 水 俣 病 kumamoto minamata-byō) case 47 , the toyama itai-itai disease (富山イタイイタイ病 45 leonard g. ratner, "the function of the due process clause." university of pennsylvania law review 116, no. 6 (1968): 1053-1057. 46 shiro kawashima, “a survey of environmental law and policy in japan,” j. int'l l. & com 20 (1994). 47 judgment of march 20, 1973, kumamoto district court, 696 判事 15 (japan). see julian gresser et al., environmental law in japan, (cambridge: the m.i.t. press. 1981) 65. minamata's disease is caused by methylmercury waste from the chisso corporation chemical plant from 1932 to 1968. it was suspected that mercury sulfate in wastewater was metabolized to methylmercury by bacteria in the sediment. these highly toxic chemicals are accumulated and biomagnified in shellfish and fish in the minamata bay and shiranui sea. udayana journal of law and culture vol. 4 no. 1, january 2020 97 toyama itai itai-byō) case 48 , the niigata minamata disease (新潟 水俣病 niigata minamata-byō)case 49 and the yokkaichi asthma (四日市ぜんそく yokkaichi zensoku) case50. in light of the importance of pollution prevention in ensuring the health and cultural life of the people, the responsibility for pollution prevention of business operators, national and local governments are clarified, and measures for pollution prevention are clarified. enforcement of the basic provisions in the constitution is also emphasized. therefore, japan's environmental policy has been promoted based on two basic laws. one of them is the basic law on environmental pollution control, which was enacted in 1967 to tackle serious industrial pollution that occurred in japan in the period of rapid economic growth in the late 1950s and 1960s. the other is the natural environment preservation act, enacted in 1972 to dismiss the destruction of outstanding features of the natural environment. established for the purpose of comprehensively promoting pollution control by prescribing basic matters, protecting the health of the people, and preserving the habitable environment. the attitude of the japanese government towards managing the global environment has changed rapidly. the government has introduced a variety of new environmental regulations aimed at resolving domestic and international pollution and promoting greater resource conservation.51 since the early 1990s, environmental protection has become an increasingly important national and international policy and program for japan. japan local people poisoned from eating fish. while the deaths of cats, dogs, pigs and humans continued for 36 years, the government and companies did not make efforts to prevent pollution. 48 judgment of june 30, 1971, toyama district court, 635 判事 17 (japan). see julian gresser et al., op.cit, 49 , 55. the toyama itai-itai disease case is a case of cadmium poisoning which causes softening of bones, joints and chronic kidney disease. victims who suffer unbearable pain so often they shout "itai-itai" ("sick, sick"). for severe pain (japanese: 痛 い itai). cadmium was released into the river by the mitsui mining and smelting company in the mountains, which was successfully prosecuted for pollution 49 judgment of september 29, 1971, niigata district court, 642 判事 (japan). see kazumasa takemori, niigata minamata disease and showa denko, 中部大学産業経済研究所 紀要 第 22 号 2012 年 3, (22 bulletin of institute of industrial economy chubu university, the journal of research institute for industry and economics 56 (2012), niigata minamata disease is a minamata disease occurred in niigata prefecture. niigata prefecture defines minamata disease is “a nervous disease with the nature of intoxication by eating fish contaminated by organic mercury repeatedly and continuously. 50 judgment of july 24, 1972, tsu district court, yokkaichi branch, 672 判事 30 (japan). the yokkaichi asthma is a case caused by air pollution as a result of burning oil and crude oil. large amounts of sulfur dioxide are released in the air which causes severe smog, which results in chronic obstructive pulmonary disease, chronic bronchitis, pulmonary emphysema, and bronchial asthma against the local people. occured in the town of yokkaichi in mie prefecture, japan, between 1960 and 1972. see julian gresser, the development of pollution control in japan: an historical note, 1 harv. envtl. l. rev. 541 (1976). 51 miranda a. schreurs, "assessing japan's role as a global environmental leader." policy and society 23, no. 1 (2004): 88-89. https://translate.googleusercontent.com/translate_c?depth=1&hl=en&prev=search&rurl=translate.google.com&sl=ja&sp=nmt4&u=https://ja.m.wikipedia.org/wiki/%25e5%259b%25bd%25e6%25b0%2591&xid=17259,15700022,15700186,15700191,15700256,15700259,15700262,15700265,15700271,15700283&usg=alkjrhhfp-5pfxvg2qalqj2rd67s6ceydq https://translate.googleusercontent.com/translate_c?depth=1&hl=en&prev=search&rurl=translate.google.com&sl=ja&sp=nmt4&u=https://ja.m.wikipedia.org/wiki/%25e5%2585%25ac%25e5%25ae%25b3&xid=17259,15700022,15700186,15700191,15700256,15700259,15700262,15700265,15700271,15700283&usg=alkjrhj7i-6uhlebz_s54y6ixudo_qvf-w 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citizens’ constitutional rights regarding habitable and wholesome environment: towards a law state that protects the environment nyoman satyayudha dananjaya and kazuhiko fuchikawa 98 is one of 178 countries committed to the rio declaration on environment and development with the principles outlined in agenda 21 to promote sustainable development at the united nations conference on environment and development (unced) 1992. 52 principle 7 of the rio declaration 53 recognized the specific responsibility of developed countries in promoting environmental protection and development: “developed countries recognize their responsibility in sustainable development given their community's pressure on the global environment and the technology and financial resources they command”. japan is widely regarded as one of the developed countries with modern and progressive economic levels in the world in terms of its dedication to promoting environmental protection. in fact, japan is very responsive to dealing with air pollution and the dangerous hazards associated with nuclear power plants. after years of change, beginning in the early 1990s, many new environmental laws were introduced, and new environmental institutions were established. significant changes began to be made to national environmental law.54 basic environmental act was passed in 1993 replacing the basic act for environmental pollution control of 1967 (as amended in 1970) and absorb the basic ideas of the 1972 environmental conservation act. the new law is labeled "basic/fundamental" because it unites two different policies into one basic approach to preventing environmental pollution and preserving nature. it determines measures of environmental protection of the japanese government by considering the modern global perspective. importantly, this new action places responsibility on the government to protect not only the japanese environment but the global environment. this was followed by the ratification of the basic environment plan, which established policies and actions to reduce environmental impacts. finally, japan introduced the environmental impact assessment act in 1997. other actions passed in recent years included a law requiring reporting the release of toxic chemicals into the environment and a law to promote green purchases. in the 2010 oecd report55, explained that japan had made 52 miranda a. schreurs, ibid., 53. 53 see the rio declaration on environment and development (1992), available at http://www.unesco.org/education/pdf/rio_e.pdf see in detail review of implementation of the rio principles, available at https://sustainabledevelopment.un.org/content/documents/1127 rioprinciples.pdf 54 miranda a. schreurs,op.cit., 95. 55 see oecd environmental performance review: japan 2010 available at https://www.oecd.org/env/oecd-environmental-performance-reviews-japan-20109789264087873-en.htm. see also https://read.oecd-ilibrary.org/environment/oecdenvironmental-performance-reviews-japan-2010_9789264087873-en#page1 doi: https://dx.doi.org/10.1787/9789264087873-en http://www.unesco.org/education/pdf/rio_e.pdf https://sustainabledevelopment.un.org/content/documents/1127%20rioprinciples.pdf https://www.oecd.org/env/oecd-environmental-performance-reviews-japan-2010-9789264087873-en.htm https://www.oecd.org/env/oecd-environmental-performance-reviews-japan-2010-9789264087873-en.htm https://read.oecd-ilibrary.org/environment/oecd-environmental-performance-reviews-japan-2010_9789264087873-en#page1 https://read.oecd-ilibrary.org/environment/oecd-environmental-performance-reviews-japan-2010_9789264087873-en#page1 https://dx.doi.org/10.1787/9789264087873-en udayana journal of law and culture vol. 4 no. 1, january 2020 99 significant environmental progress through a series of aggressive policies. in their report, the oecd stated that progress was made in terms of reducing air emissions, water use and municipal waste generation. in addition, it noted that japan has made a conscious effort to move from a truly ecological sustainable development model to a broader approach that focuses on identifying existing relationships between ecological protection, economic growth, and social values. 2.4.3 equating japan and indonesia in protecting constitutional rights regarding and wholesome environment. every state that constitutionally committed to the recognition of human rights determines the right to an adequate environment. this can be seen how japan and indonesia also provide protection to its citizens in the form of the realization of the right to habitable and wholesome environment not only listed in the constitution but also implemented through making various regulations in the field of the environment, protecting the environment and making environmental policy. constitutional provisions relating to the environment not only in the form of provisions that are set forth in constitutional as fundamental rights but also how the constitution ensures the implementation of these provisions. arrangements regarding the protection of the environment cannot be determined entirely in a constitution. constitution as a predominant regulation, thus, the elaboration of each article in the constitution can be stated in the form of act and the implementation regulation of the act as strengthening the realization of a law state that prioritizes the protection and law enforcement of the rights of its citizens. 3. conclusion environmental protection is a joint responsibility of all indonesian citizens, but the state has obligations and responsibilities under the constitution. the state was established to guarantee constitutional rights through the constitution. the constitution as a state foundation that is used as a guideline for state administration. the embodiment of the highest law must be obeyed by the state administrators and its citizens because the constitution was established as demand and expectation of the citizens to achieve justice. by mentioning as a constitutional state, citizens surrender rights to be regulated and implemented to ensure order for the state administrators. in the indonesian legal system, arrangements regarding the rights to acquire habitable and wholesome environment are contained in the constitution. this is the main protection given by the state to its citizens as an embodiment of citizens' constitutional rights. so that the existence of citizens' constitutional rights in the constitution is not a display to citizens’ constitutional rights regarding habitable and wholesome environment: towards a law state that protects the environment nyoman satyayudha dananjaya and kazuhiko fuchikawa 100 complement the constitution of indonesia 1945. arrangements regarding environmental protection are not determined in detail directly in the constitution but explicitly regulate through articles in the constitution (article 28 letter h) which instruct delegates to draft a legislation. as an implemented regulation of the constitution, the act on the environmental protection and management (the act number 32 year 2009) became the basis for all laws and regulations relating to the environment. the description of the protection of citizens' constitutional rights regarding the right to habitable and wholesome environment has been implemented into the environment act. all provisions concerning the protection of the right to habitable and wholesome environment in detail have been set out therein. if this provision is carried out in accordance with the norms contained therein, then, surely the citizens' constitutional rights can be realized. in addition, even though based on article 28 letter (i) paragraph (4) of the constitution of indonesia 1945 determined that the state, especially the government is obliged to respect, to protect and to fulfill in relation with the obligations that arise from human rights, every citizen also have to carry out the obligations and responsibilities together to overcome various environmental problems. in this way, the protection of the environment from a constitutional perspective can be strengthened. bibliography books asshidiqie, jimly. pengantar ilmu hukum tata negara. jakarta: konstitusi press, 2006. assiddiqie, jimly. pengantar ilmu hukum tata negara, cetakan kedua. jakarta: rajawali press, 2010. bradley, a.w. and ewing, k.d. constitutional and administrative law. 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"the function of the due process clause." university of pennsylvania law review 116, no. 6 (1968): 1048-1117. https://doi.org/10.2307/3311120 rosenfeld, michel. the rule of law and the legitimacy of constitutional https://doi.org/10.1093/ejil/chn042 https://doi.org/10.1525/nclr.2009.12.1.43 https://doi.org/10.2307/1071799 https://doi.org/10.2307/3311120 citizens’ constitutional rights regarding habitable and wholesome environment: towards a law state that protects the environment nyoman satyayudha dananjaya and kazuhiko fuchikawa 102 democracy, s. cal. l. rev. 74 (2001) 1307-1352 schreurs, miranda a. "assessing japan's role as a global environmental leader." policy and society 23, no. 1 (2004): 88-110. https://doi.org/10.1016/s1449-4035(04)70028-4 takemori, kazumasa. "niigata minamata disease and showa denko (産業 経済研究所設立 30 周年記念号)." 産業経済研究所紀要 22 (2012): 53-80. zen, nilwan wilze ananda, untung dwi hananto, and amalia diamantina jaminan hak-hak konstitutional warga negara (the protector of citizen constitutional right) dengan implementasi constitutional complaint melalui mahkamah konstitusi di negara republik indonesia, diponegoro l. rev 5, no. 2 (2016): 1-24. website contents japan basic environmental law. https://www.env.go.jp/en/laws/policy/basic/index.html dinah selton, stockholm declaration (1972) and rio declaration (1992), oxford public international law. http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law978019 9231690-e1608#law-9780199231 690-e1608-div1-2 the ministry of foreign affairs of japan, human rights, humanitarian assistance, refugees, https://www.mofa.go.jp/policy/human/index.html the rio declaration on environment and development (1992), http://www.unesco.org/education/pdf/rio_e.pdf the universal declaration of human rights (udhr), www.un.org/en/universal-declaration-human-rights/ oecd environmental performance review: japan 2010. last modified november 16, 2010. https://www.oecd.org/env/oecd-environmentalperformance-reviews-japan-2010-9789264087873-en.htm. see also https:// read.oecd-ilibrary.org/environment/oecd-environmentalperformance-reviews-japan-2010_9789264087873-en#page1 review of implementation of the rio principles, https://sustainabledevelopment.un.org/content/documents/1127 rioprinciples.pdf working paper dinah selton, human rights, health & environmental protection: linkages in law & practice, health and human rights working paper series no 1 a background paper for the world health organization (who) legal documents the international covenant on economic, social and cultural rights (icescr) the united nations conference on the human environment (unche) the republic of indonesia, the constitution of indonesia 1945 the federal republic of indonesia, the federal constitution 1949 https://doi.org/10.1016/s1449-4035(04)70028-4 https://scholar.google.com/scholar?q=nilwan+wize+ananda+zen*,+untung+dwi+hananto,+amalia+diamantina https://www.env.go.jp/en/laws/policy/basic/index.html http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-978019%209231690-e1608#law-9780199231 690-e1608-div1-2 http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-978019%209231690-e1608#law-9780199231 690-e1608-div1-2 https://www.mofa.go.jp/policy/human/index.html http://www.unesco.org/education/pdf/rio_e.pdf http://,/ http://www.un.org/en/universal-declaration-human-rights/ https://www.oecd.org/env/oecd-environmental-performance-reviews-japan-2010-9789264087873-en.htm https://www.oecd.org/env/oecd-environmental-performance-reviews-japan-2010-9789264087873-en.htm https://sustainabledevelopment.un.org/content/documents/1127%20rioprinciples.pdf https://sustainabledevelopment.un.org/content/documents/1127%20rioprinciples.pdf https://en.wikipedia.org/wiki/federal_constitution_of_1949 udayana journal of law and culture vol. 4 no. 1, january 2020 103 the republic of indonesia, the provisional constitution 1950 the republic of indonesia, the act no. 4 year 1982 concerning the basic provisions of environmental management the republic of indonesia, the act no. 23 year 1997 concerning the environmental management. the republic of indonesia, the act number 32 year 2009 concerning the environmental protection and management. the constitution of japan (shinjitai: 日本国憲法 kyūjitai: 日本國憲法 nihonkoku kenpō) 1947 https://en.wikipedia.org/wiki/provisional_constitution_of_1950 https://en.wikipedia.org/wiki/shinjitai https://en.wikipedia.org/wiki/ky%c5%abjitai e-issn 2549-0680 vol. 7, no. 2, july 2023, pp. 178-199 178 measuring corruption tendency in exercising authority of the proxy of budget user: a legal culture perspective i made sudarsana1, aaa ngurah sri rahayu gorda2 1,2 faculty of law universitas pendidikan nasional, denpasar, indonesia keywords abstract corruption; legal culture; government procurement. presidential regulation no. 12 of 2021 on the amendment to presidential regulation no. 16 of 2018 on government procurement (pr 12/2021) expands the authority for the proxy of budget user (pbu) to become commitment making officer. consequently, the process of procuring government goods/services is controlled by a single person; such a condition can facilitate various forms of criminal acts, especially corruption. this study aims to analyze the dual position of pbu as a commitment making officer, the tendency of corruption due to the expansion of pbu’s authority, and the reformulation of pbu’s authority in the future. it is normative juridical research that examines pr 12/2021 with a qualitative analysis approach. amendment to the presidential regulation on government procurement includes the legitimacy of pbu as a commitment making officer without any requirements as stated in the previous regulation. among others, this study underlines that centralized authority will have implications for a more robust culture of corruption due to the absence of control from other parties. in future provisions, pbu may not hold a concurrent position as commitment making officer in accordance with the principles of transparency and accountability. the culture of professionalism in the procurement of government goods/services needs to be improved to reduce the culture of corruption, collusion, and nepotism. doi https://doi.org/10.24843/ujlc .2021.v07.i02.p04 author e-mail 1 correspondence: in4n4s@gmail.com 2 srigorda@undiknas.ac.id this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/license s/by/4.0/) 1. introduction procuring goods/services in the government sector is essential for the implementation of national development in order to improve public services and develop national and regional economies. procurement of goods/services is also expected to provide maximum value for money, contribute to the improvement of domestic products, increase the role of micro, small and medium enterprises, and promote sustainable development. 1 in this endeavor, the president of indonesia has issued presidential regulation no. 16 of 2018 concerning procurement of 1 niru anita sinaga, “perjanjian pengadaan barang/jasa pemerintah kaitannya dengan asas keseimbangan dalam hukum perjanjian,” jurnal ilmiah hukum dirgantara 9, no. 2 (2019): 30. https://doi.org/10.24843/ujlc.2021.v07.i02.p04 https://doi.org/10.24843/ujlc.2021.v07.i02.p04 mailto:in4n4s@gmail.com mailto:srigorda@undiknas.ac.id http://creativecommons.org/licenses/by/4.0/ http://creativecommons.org/licenses/by/4.0/ measuring corruption tendency in exercising authority of the proxy of budget user: a legal culture perspective i made sudarsana and aaa ngurah sri rahayu gorda 179 government goods/services (hereinafter referred to as pr 16/2018) which was amended to presidential regulation no. 12 of 2021 (hereinafter referred to as pr 12/2021). the government procurement of goods/services crosses the aspects of administrative, private, and criminal law. administrative law plays more role, compared to the others, as it relates to the use of authority, fosters a clean government, and prevents maladministration.2 maladministration is a classic problem of government bureaucracies in carrying out their duties. it is an illegal act that involves exceeding authority, abusing it for illegal purposes, and neglecting legal responsibilities in the state administration's and the government's administration of public services, which results in material and/or immaterial losses to society and individuals. maladministration typically arises when a public body disregards a rule or principle intended to bind it.3 the lack of understanding of the laws and regulations related to the procurement of government goods/services may impact irregularities in the procurement process. it can therefore be a causing factor of the state financial losses.4 misuse of state finances is an act against the law: one of the elements of corruption. the corruption that occurs in indonesia is widespread; not only is is detrimental to the state’s finances, but it also violates the social and economic rights of the community as a whole.5 mismanagement of the state finances results in uncontrollable state budget and financial losses, since errors and inaccuracies in the management process are done intentionally. this violation of law is strictly prohibited. 6 the expanded authority of the proxy of budget user (hereinafter referred to as pbu), who can also serve as a commitment making officer, will make it easier for them to use the funds that are initially intended for the purchase of goods/services for their interests.7 2 ahmad rustan syamsuddin, “pembuktian penyalahgunaan wewenang dalam perkara tindak pidana korupsi pengadaan barang dan jasa,” jambura law review 2, no. 2 (2020): 161. 3 elstonsius banjo, surastini fitriasih, and eva achjany zulfa, "maladministration and intentionality on the criminal corruption court in indonesia," petita 7, no. 2 (2022): 118. 4 art. 1 (1) of law no. 17 of 2003 on the state finance states that state finances are all of state rights and obligations that can be valued in money, as well as everything in the form of money or goods that can be used as state property in connection with the implementation of these rights and obligations. 5 vita mahardhika, “pertanggungjawaban pidana pejabat pembuat komitmen sebagai upaya pencegahan korupsi pengadaan barang/jasa pemerintah,” jurnal hukum samudra keadilan 16, no. 1 (2021): 140. 6 dewi kania sugiharti and ajie ramdan, “mewujudkan desa bebas korupsi melalui pengelolaan keuangan desa terpadu,” pandecta research law journal 14, no.1 (2019): 57. 7 as an illustration, in the case of the procurement of a driving license simulator (kpk vs. djoko susilo, decision no. 48/pid.sus/tpk/2013/pn.jkt.pst, dated 16 january 2014), inspector general djoko susilo at that time served as director of traffic at the national police headquarters who was also the pbu. however, it was he who actively ordered commitment making officers to deviate from the rules to win certain bidders. opportunities for corruption will be even greater when pbu also serves as commitment making officers. see richo andi wibowo, “mencegah korupsi pengadaan barang jasa (apa yang sudah dan yang masih harus dilakukan?),” integritas: jurnal antikorupsi 1, no. 1 (2018): 55. udayana journal of law and culture vol. 7 no. 2, july 2023 180 in legal development, the government procuring goods/services has three essential and strategic meanings. first, it has a strategic meaning in the protection and preference of domestic business actors. second, it is a significant sector in the effort for economic growth. third, the applied system with the principles of good governance will encourage the efficiency and effectiveness of public spending as well as conditioning the behavior of the three pillars of governance, namely: the government, the private sector, and the community. 8 in essence, the procurement of government goods/services is a process to obtain providers who meet the qualification requirements and, subsequently, to obtain goods or services that meet the stipulated requirements. the mechanism for the procurement can be seen in the following chart. chart 1. procurement of government goods/services source: primary data, 2022. as shown in chart 1, in the goods/services procurement business sector, many business actors are engaged in their respective fields according to their business, such as the procurement of goods, construction work, other service work, construction consulting work, and non-construction consulting work, but not all business actors have the ability to provide goods/services according to the required specifications. in the procurement of government goods/services through providers, it is described that in order to obtain goods/services that meet the specifications to meet the needs, a provider must be selected using several selection methods, such as purchasing, direct procurement, direct appointment, fast tender, tender, or selection. the qualification assessment is carried out to fulfill administrative and technical requirements. suppose the business actor fulfills the qualification requirements in the first stage of the selection process (qualification assessment stage). in that case, they can participate in the second stage of the selection process, namely, making an offer to fulfill the requirements for goods/services. the fulfillment of business actors in meeting the requirements for goods/services will be assessed through administrative, technical, and price fairness evaluation. if, from the first stage to hold, both business actors have fulfilled the requirements, with the last criterion being bidding at a fair and lowest price, then the business actor will be declared the winner. the business actor designated as the 8 mustofa kamal, “analisis politik hukum dalam pengadaan barang dan jasa pemerintah,” jurnal pro justice: kajian hukum dan sosial 1, no. 2 (2020): 1. procurement of government goods/services provider goods/ services fulfill the requirements of qualification fulfill the requirements of administration, technical, and price measuring corruption tendency in exercising authority of the proxy of budget user: a legal culture perspective i made sudarsana and aaa ngurah sri rahayu gorda 181 winner will follow the next stage until the signing of the contract. if the business actor has signed the contract, the status of the business actor will become a provider. actors of procurement of goods and services in the government sector are budget users; pbu; commitment making officers; procurement officials; election working groups; procurement agents; self-managed organizers; and providers. procurement is essential as it uses state-sourced finance. article 1 (1) of the pr 12/2021 determines that the activities of the procurement of goods/services carried out by the government, both at the central and regional levels, are financed by the state revenue and expenditure budget (anggaran pendapatan belanja negara/apbn) or anggaran pendapatan dan belanja daerah/apbd). since it is carried out using state money, its mechanism must be carried out carefully in accordance with the duties and authorities of each organizer. pr 12/2021 provides significant changes to the authority of the pbu. as stated in article 10 (5) of the pr 12/2021, pbu for procuring goods/services using the budget from the apbd can also serve as commitment making officer. unlike pr 16/2018, the pbu can only serve as a commitment making officer if no personnel can be appointed as commitment making officers as regulated in article 10 (5) of pr 16/2018. the commitment making officer represents the agency in engagements or agreements with other parties. the success or failure of the goods and services procurement process in one agency depends on the commitment making officer, who is in charge of planning and supervising the procurement of goods/services. the duties of officials who make commitments are closely related to the use of the state budget. therefore in their implementation, such officers require skill and thoroughness as well as responsibilities that are different from the primary duties of other administrative staff. 9 the construction industry faces many challenges demonstrating that onerous contract administration practices are a significant cause of disputes costing the sector billions of dollars annually.10 the essence of the government procurement of goods/services is based on an agreement called the goods/services procurement contract document. questions that arise when pbu also serves as a commitment making officer will be related to the competence of the pbu itself in procuring goods/services in the government. in addition, this dual position will eliminate the function of internal control in procuring goods and services. holding multiple positions will eliminate the role of internal control in procuring goods/services. consequently, this will facilitate fraudulent practices that are detrimental to state finances. this dual position will make it easier for bidders to pay bribes by negotiating with only one person without communicating with different people, allowing them to make an 9 heru triawan, “pelanggaran prosedur hukum oleh pejabat pembuat komitmen dalam pengadaan barang/jasa,” sosioedukasi: jurnal ilmiah ilmu pendidikan dan sosial 11, no. 1 (2022): 22. 10 alan j. mcnamara and samad m. e. sepasgozar, “intelligent contract adoption in the construction industry: concept development,” automation in construction 122 (2021): 103452. udayana journal of law and culture vol. 7 no. 2, july 2023 182 informed decision. the organization for economic cooperation and development (oecd) anti-bribery convention and transparency international classifies bribery as a form of corruption. bribery is an act in which a party deliberately abuses power entrusted to their interests, meaning that they receive rewards for using their authority to act in the interests of other parties.11 several researchers have previously conducted research on the procurement of government goods/services. arifin, soegianto, sulistiyani (2020) assessed that legal protection in the government goods/services procurement partnership agreement could provide legal certainty for the parties. such protection is in the form of a partnership agreement that must be made in written form as an effort to avoid disputes and controversy, as well as the recognition of the partnership agreement as evidence of work experience which is very beneficial for micro, small and medium enterprises. 12 manalu (2017) revealed the weak legal protection for the organizers in organizing the procurement of government goods/services, which is caused by the overlapping authorities in the administration of government procurement of goods/services; the absence of clear and firm provisions at the statutory level; and the weak political will of stakeholders related to legal protection for organizers of government procurement of goods/services. 13 betham, hipan, and fality (2019) discussed the legal protection for organizers of government procurement of goods/services so that they can work in accordance with statutory regulations in order to benefit the government and society.14 slightly differs from the above studies, this article focuses on the expansion of pbu’s authority as officials making commitments in the procurement of government goods/services and the tendency of corruption due to the expansion of this authority. several other researchers have also conducted a study on the culture of corruption. chen et al (2020) examined the culture of corruption by comparing the before and after situations of the arrest of corrupt officials, in order to capture changes in local corruption culture. corrupt officials are formed from officials who have a long term of office and are appointed from the regions, which are more likely to have more power. 15 pahlevi (2022) argued that legal culture as part of the legal system requires law not only to be seen as a formulation of rules on paper, but to be understood as a social 11 fabian teichmann et al, “business to government (b2g) corruption and resource misallocation. the case of china at the municipal level,” journal of economic criminology 1 (2023): 100005. 12 zaenal arifin, soegianto soegianto, and diah sulistyani, “perlindungan hukum perjanjian kemitraan pengadaan barang/jasa pemerintah pada bidang konstruksi,” jurnal usm law review 3, no. 1 (2020): 59. 13 julianda b. manalu, “perlindungan hukum terhadap penyelenggara pengadaan barang/jasa pemerintah,” jurnal hukum samudra keadilan 12, no. 2 (2017): 296. 14 ashari abd asis betham, nasrun hipan, and firmansyah fality, “analisis yuridis prosedur pengadaan barang/jasa pemerintah serta perlindungan hukum terhadap pelaku pengadaan barang/jasa,” jurnal yustisiabel 3, no. 2 (2019): 191. 15 yunsen chen et al, "corruption culture and accounting quality," journal of accounting and public policy 39, no. 2 (2020): 106698. measuring corruption tendency in exercising authority of the proxy of budget user: a legal culture perspective i made sudarsana and aaa ngurah sri rahayu gorda 183 reality that occurs in society.16 this social reality shows that a culture of corruption has indeed been awakened and rooted in people's lives. the culture of asking for help, embarrassment, and family relations is used to justify fraudulent practices in procuring government goods/services. the widespread corruption of the judiciary, as well as the weak legal culture of the people, have then contributed as the obstacles to realizing an ideal rule of law state.17 this paper reflects legal research that assumes the expansion of pbu authority has implicated in the gap to commit corruption in government procurement of goods/services. the analysis is focused on the norms stipulated in pr 12/2021 to 2018 as the primary legal materials, besides other relevant laws and regulations. secondary legal materials are obtained from a textbook, journal articles, online newspapers, and other sources of information. 2. result and analysis 2.1. concurrent position of proxy of budget user as commitment making officer 2.1.1 the essence of government procurement of goods/services public procurement accounts for 15-20% of global gdp, while gpa commitments alone represent around eur 1.3 trillion in business opportunities worldwide. 18 government procurement usually contributes significantly to a country’s economy.19 the procurement of goods/services is essentially an effort by the users of the goods/services to obtain or acquire the goods/services needed by using specific selection methods and processes to produce the correct goods/services from every money spent (value for money), measured from aspects of quality, quantity, time, cost, location, and provider. procurement is an activity to obtain goods or services in a transparent, effective, and efficient manner according to the needs and desires of its users. it compares aspects such as quality, quantity, time, and location. the procurement process involves finding, agreeing terms, and acquiring goods, services, or works from external sources, often through a competitive bidding or bidding process. these processes ensure buyers receive goods, services, or work at the best price. procurement is the acquisition of goods, services, or work from external sources.20 16 farida pahlevi, "pemberantasan korupsi di indonesia perspektif legal system lawrence m. freidmen," el-dusturie: jurnal hukum dan perundang-undangan 1, no. 1 (2022): 33. 17 ana fauzia, fathul hamdani, and deva octavia, "the revitalization of the indonesian legal system in the order of realizing the ideal state law," progressive law review 3, no. 1 (2021): 12-25. 18 european commission, “internal market, industry, entrepreneurship and smes,” https://single-market-economy.ec.europa.eu/single-market/publicprocurement/international-public-procurement_en 19 allison anthony, “the use of e-procurement in south african public procurement law: challenges and prospects,” law, democracy & development 22, no. 1 (2018): 39. 20 william l. mboma, “assessment on effects of procurement process through the use of gpsa framework agreement on public entities in tanzania: a case study of national auditing office (nao),” asian journal of management, entrepreneurship and social science 2, no. 2 (2022): 164. https://single-market-economy.ec.europa.eu/single-market/public-procurement/international-public-procurement_en https://single-market-economy.ec.europa.eu/single-market/public-procurement/international-public-procurement_en udayana journal of law and culture vol. 7 no. 2, july 2023 184 laws and regulations on procurement in the government sector are usually based on the assumption that there is greater competition for tenders and that the best way to achieve greater competition is to reduce transaction costs for suppliers. 21 in the process of procuring goods and services, of course, there are many choices, and that is where the government can consider the best products for the public interest. procurement is an effort to obtain goods and services that are needed and carried out based on logical and systematic thinking, following norms and ethics, and according to standard procurement methods that are carried out as procurement guidelines. procurement of goods/services in government organizations is an important concern because it considers funding sources, one of which comes from mandatory community contributions, namely taxes, so that the government does not only need to be accountable and transparent but also prioritizes efficiency and effectiveness. 22 procurement activities of government goods/services are closely related to the government’s efforts to achieve welfare and prosperity for the community. article 1 (1) of the pr 12/2021 defines government procurement as “activities of procurement by ministries/institutions/regional apparatuses financed by the state budget, regional budget, the process commences from the identification of needs to the handover of the work results.” it can be drawn from the above definition that the procurement of goods/services either by the private sector or by the government has the following elements: 1. an activity carried out by users to obtain goods/services; 2. a process of both standardized and/or agreed upon; 3. the best price/cost measured by quality, quantity, time, place, and provider; and 4. the principles of efficiency, effectiveness, transparency, and accountability. guidelines for planning the procurement of government goods/services include identification; determination of the type; method; packaging and consolidation; time of utilization; and budget. procuring government goods/services includes procurement of goods, construction work, consulting service work, and other services. the term ‘goods’ covers the meaning of every tangible and intangible object, movable or immovable, which can be traded, used, worn, or utilized by the property user. construction work is the whole or part of the activities that include the construction, operation, maintenance, demolition, and rebuilding of a building. further, consultancy services are professional services that require specific expertise in various scientific fields that prioritize the existence of thought. other services are non-consulting services or services that require 21 elizabeth dávid-barrett and mihály fazekas, “anti-corruption in aid-funded procurement: is corruption reduced or merely displaced?,” world development 132 (2020): 105000. 22 dhiona ayu nani and syaiful ali, “determinants of effective e-procurement system: empirical evidence from indonesian local governments,” jurnal dinamika akuntansi dan bisnis 7, no. 1 (2020): 33. measuring corruption tendency in exercising authority of the proxy of budget user: a legal culture perspective i made sudarsana and aaa ngurah sri rahayu gorda 185 equipment, particular methodologies, and/or skills in a governance system widely known in the business world to complete a job. as previously mentioned, the actors in the procurement of goods/services include budget users and pbu. 23 according to the pr 12/2021, budget users are officials holding the authority to use the budget of state ministries/institutions/regional apparatuses.24 furthermore, it is stated as follows: “pbu in the implementation of apbd are officials who are authorized to carry out part of the authority of budget users in carrying out some of the tasks and functions of regional apparatuses.”25 the apbd is the annual financial plan of the regional government, which is discussed and approved jointly by the regional government and the regional people’s representative council, and is stipulated by regional regulations. the apbd is the systematic and detailed list containing the regional revenue and expenditure plans for one year. it is generally prepared to obtain a deeper picture of the central/regional financial condition and assess the government’s performance in managing finances and predicting future financial conditions. the apbd is prepared to regulate regional expenditures from planned revenues to obtain the prescribed targets and create economic growth and community prosperity.26 2.1.2 tracing the legal culture of multiple positions of proxy of budget user as commitment making officer the government procurement of goods/services involves pbu. article 10 of the pr 12/2021 states that pbu carries out the delegation in accordance with the delegation from the budget user. in addition to this authority, pbu has the authority to answer the appeal of the construction work tender participants. pbu may assign a commitment making officer to carry out the authority related to taking actions that result in budget expenditures; and/or entering into agreements with other parties within the stipulated budgetary limits. the procurement manager of goods/services can assist the pbu. the pbu using the regional budget, can also serve as a commitment making officer. this expansion of authority provides greater space for corruption than if a different person from the power of pbu holds the authority of the commitment making officer. if more than one person holds the authority to procure government goods/services, reaching a consensus on crime will be more challenging because the provider has to spend twice the effort to negotiate. in the planning stage, several patterns may occur, including legislative bribery; project arrangement or debt bondage; lower specification setting below the standard; project duplication; budget fraud/embezzlement; and breaking of the packet. in the selection and implementation stages, for example, there are fake administrative 23 presidential regulation no. 12 of 2021, art. 8. 24 ibid., art. 1 (7). 25 ibid., art. 1 (9). 26 lelly ani, jmv mulyadi, and dwi pratowo, “analisis faktor-faktor yang mempengaruhi penyerapan anggaran belanja dengan perencanaan anggaran sebagai pemoderasi pada pemerintah kota depok tahun 2013-2017,” ekobisman: jurnal ekonomi bisnis manajemen 5, no. 1 (2020): 2. udayana journal of law and culture vol. 7 no. 2, july 2023 186 documents and requirements; sale and purchase or rental of administrative documents and qualification requirements; agreement in price setting; bribes; and changes in specifications of goods after competition (postbidding), exchange of state assets or services; proxy or selling flags; giving commissions; as well as change of contract without addendum. in addition, there are also tendencies of fictitious projects; projects abandoned/failed/not according to specifications; default; illegal subcontracts; extortion; illegal levies; audit arrangements; handover before completion; and fictitious minutes or reports. the provision where pbu can serve as a commitment making officer for procuring goods/services using the regional expenditure budget is a change from pr 16/2018. in this presidential regulation, pbu can only serve as a commitment making officer if no staff can be appointed as commitment making officers. the condition in which pbu can concurrently act as a commitment making officer, on the one hand, is deregulation in the procurement of government goods/services. however, on the other hand, it is causing the centralization of authority in procuring goods/services to pbu. meanwhile, if viewed from the pbu’s daily duties and responsibilities, a pbu certainly has many duties and responsibilities. the position of commitment making officer is a challenging one. according to article 1 (10) of the pr 12/2021, commitment-making officers are officials whom budget users or pbu authorizes to make decisions and/or take actions that may result in the apbn/apbd.27 commitmentmaking officers have a range of powers and responsibilities in administrative and civil processes. the commitment making officer is the party directly involved in signing a contract. the legal consequences for the parties involved in the contract as regulated in article 1338 of the civil code and the pacta sunt servanda principle, namely, all legally executed agreements shall bind the individuals who have concluded them by law. they cannot be revoked otherwise by mutual agreement or under legally declared sufficient reasons and shall be executed in good faith. that is why it is crucial to understand the type and form of the contract that the parties will make. 28 commitment making officer is an official responsible for implementing the procurement of goods/services, acting on behalf of the local government in the procurement contract. in forming the procurement contract, the government carries out business activities in the form of procurement of goods/services in a contractual relationship. as a party to the contract, the government no longer has state immunity and is in the same position as its counterparty, “equal before contract.”29 in addition to the aforementioned tasks, the commitment making officer carries out the task of delegating authority from the budget user or pbu, including taking actions resulting in budget expenditures; and entering into and establishing agreements with other parties within the 27 see presidential regulation no. 12 of 2021, arts. 11 (a)-(p). 28 naony f. istiqlallia, raissa ardelia, and pramudya ramadhanti, “pertanggungjawaban hukum pejabat pembuat komitmen (ppk) dalam pengadaan barang/jasa pemerintah,” perspektif 25, no. 2 (2020): 129. 29 jelita angela rawis, “kontrak pengadaan barang dan jasa pemerintah menurut perpres nomor 16 tahun 2018,” lex privatum 9, no. 1 (2021): 63. measuring corruption tendency in exercising authority of the proxy of budget user: a legal culture perspective i made sudarsana and aaa ngurah sri rahayu gorda 187 stipulated budget limits. if the commitment-making officer is not authorized to utilize the budget from the apbd, the budget user or pbu assigns the technical implementation officer of the activities to carry out the duties of the commitment-making officer,30 where they must meet the competency requirements of the commitment making officer. 2.2. corruption tendency due to the expansion of proxy of budget user 2.2.1 procurement of goods/services for public interest fulfilling excellent and quality public services with human and physical development is the state’s goal in accelerating national development. zaida ilimzhanova et al (2019) stated in their research: “the rules of state control over the quality of public services, in addition to assessing the quality of services, are more at assessing measures to improve the processes of public services.”31 in physical development, the state must balance it with a proper regulatory arrangements related to the procurement of goods/services. along with the purpose of procurement which can provide the maximum value for money, it is set in one of the objectives to produce the correct goods/services for every money spent. procurement also considers quality, quantity, time, cost, location and provider. 32 the procurement of goods/services also aims to increase the use of domestic products; increase the participation of micro, small business, and cooperatives; improve the role of national business actors; support the implementation of research and utilization of research products/services; advance the participation of creative industries; realize economic equality and provide expansion of business opportunities and strengthen sustainable procurement. one of the main elements in a country's development activities and services is the procurement of goods/services. the procurement of goods and services is very close to the existence of various new facilities, offices, market buildings, hospitals, schools to office stationery carried out in all sectors, such as the business, the non-profit, and the government sectors to meet the needs of each organization. there are differences between each organization in the sector, namely in the procurement process, among others, in terms of funding, availability of providers, and service interests. the similarity among the organizations of the above sectors is that they have the same goal: to obtain goods and services with the best value. government goods/services are not solely procured to provide comfortable public facilities. this activity also has implications for the economic turnover of the supplying community. 2.2.2 culture of corruption in government procurement of goods/services grassroots corruption is one of the complex problems in grassroots governance. at present, local government continues to decentralize power to grassroots departments. the grassroots governments provide many public 30 see presidential regulation no. 12 of 2021, arts. 9 (1) (a)-(n). 31 zaida a. ilimzhanova et al, “formatting of public services in the framework of fulfillment of tax obligations,” revista espacios 40, no. 32 (2019): 11. 32 mahardhika, loc.cit. udayana journal of law and culture vol. 7 no. 2, july 2023 188 services and public goods, matching with public finances. 33 issues and problems in the procurement of goods/services have received the attention of the international community since the 60s, and various efforts have been made to find solutions.34 procurement of goods/services is vulnerable to fraud problems. this is a concern of countries in the world. the elaboration of rules, that are meant to be applied in different areas, over very different subjects must find its starting point in the general principles of law, norms with a high degree of generality that can be given different interpretations.35 the united nations convention against corruption is the only legally binding universal anti-corruption instrument. 36 the convention’s broad approach and mandatory provisions make it a unique tool for developing comprehensive responses to global problems. the convention covers five main areas: preventive action, criminalization and law enforcement, international cooperation, asset recovery, technical assistance, and information exchange. the convention covers various forms of corruption, such as bribery, trade in influence, abuse of function, and various acts of corruption in the private sector.37 the juridical consequence of using the state budget in procuring goods and services is that if there is a deviation, there is a tendency for criminal corruption to occur. procurement corruption is a problem faced globally. based on a report by the united nations office on drugs and crime (unodc), procurement corruption has an impact on the loss of around 1025 percent of state money.38 there are still many entrepreneurs who work together with local officials who organize tenders to win the tender itself. some regional officials arrange for the desired entrepreneur to win the tender. another form of this fraud can occur between the service provider and the auction committee, the commitment making officer, the budget user authority, or the provider of the goods himself, who conspires horizontally in determining the winner of the tender. public procurement is usually an interaction between bureaucrats and company managers, often associated with bureaucratic corruption. the culture of corruption in the bureaucracy (or small) is the abuse of power entrusted daily by public officials in their interactions with ordinary citizens. bureaucratic corruption is the most widespread form of corruption 33 su nan, “study on the relation of grassroots corruption and government expenditure,” procedia computer science 199, (2022): 1031-1035. 34 ismail, muh sarkowi and aleksander purba, “kompetensi pejabat pembuat komitmen dinas pengairan kabupaten lampung tengah dalam melaksanakan tugas pokok dan kewenangannya sesuai perpres nomor 12 tahun 2021,” seminar nasional insinyur profesional (snip) 2, no. 1 (2022): 1. 35 măgureanu alexandru florin, “european juridical culture–in varietate concordia,” procedia-social and behavioral sciences 81 (2013): 176-180. 36 indonesia has signed the united nations convention against corruption on december 18, 2003 and has ratified it through law no. 7 of 2006 concerning ratification of the united nations convention against corruption, 2003. 37 provisions for overcoming corruption in procuring goods/services in the government sector can be found in art. 9 on public procurement and management of public finances. 38 indonesia corruption watch, “pemetaan potensi kecurangan dalam metode epurchasing pada proses pengadaan barang/jasa di indonesia,” https://antikorupsi.org/index.php/id/pemetaan-potensi-kecurangan-dalam-metode-epurchasing-pada-proses-pengadaan-barangjasa-di-indonesia https://antikorupsi.org/index.php/id/pemetaan-potensi-kecurangan-dalam-metode-e-purchasing-pada-proses-pengadaan-barangjasa-di-indonesia https://antikorupsi.org/index.php/id/pemetaan-potensi-kecurangan-dalam-metode-e-purchasing-pada-proses-pengadaan-barangjasa-di-indonesia measuring corruption tendency in exercising authority of the proxy of budget user: a legal culture perspective i made sudarsana and aaa ngurah sri rahayu gorda 189 worldwide, especially in developing countries and transition economies. 39 this condition is inseparable from the legal culture of bureaucrats who want to be served and get rewards for their authority. the community’s legal culture also supports corruption in procuring goods/services, for example, procurement participants who want to win tenders, tender winners who want to work below standards but are not subject to sanctions, and evasion of tender winners from making improvements. the vulnerable points for deviations in the procurement of government goods/services, which are categorized as criminal acts, occur at the procurement planning stage, such as indications of budget inflation or mark-ups, directed procurement implementation, unification engineering and/or splitting procurement packages with the intention of collusion, corruption or nepotism that harms the state. other vulnerable points for criminal acts can also occur at the company qualification stage, the procurement evaluation stage, the contract signing stage, and the delivery stage of goods that do not meet the requirements and are of low quality, which can cause state losses. 40 the vulnerability of government goods/services procurement activities to corruption is caused by the large amount of budget used. conspiracy in this activity is also relatively easy to do. the modus operandi of corruption related to self-estimated prices occurs when officials making commitments or budget users do not carry out price surveys. price determination is made only based on the price offer made by the service provider. such an action can certainly raise suspicions for investigators that the budget user and the commitment maker have agreed/cooperated with partner providers of goods and services. at the procurement stage, the modus operandi of corruption committed by officials making commitments and budget users in all cases studied is related to selecting providers of goods/services. in principle, selecting providers of goods and services can be done by direct appointment or public auction. the mode of corruption at the procurement stage is carried out by commitment making officers and/or budget users to change the public auction method to a direct appointment method. 41 this condition will undoubtedly facilitate the negotiation of profit sharing, where providers who can provide more will be directly appointed. the modus operandi of criminal acts of corruption in procuring government goods/services can also be seen in several court decisions with permanent legal force. the supreme court decision no. 2413 k/pid.sus/2016 convicted the defendant of the criminal act of corruption in procuring medical, health, and family planning equipment. defendant signed all documents relating to self-estimation of prices, contracts for the 39 alfredo jiménez, julien hanoteau, and ralf barkemeyer, “e-procurement and firm corruption to secure public contracts: the moderating role of governance institutions and supranational support,” journal of business research 149 (2022): 640-650. 40 ita susanti and sri murniati, “analisis yuridis terhadap aspek hukum pengadaan barang/jasa pemerintah beserta akibat hukumnya,” sigma-mu 10, no. 2 (2018): 62. 41 m. r. kurniawan and p. pujiyono, “modus operandi korupsi pengadaan barang dan jasa pemerintah oleh pns,” law reform 14, no. 1 (2018): 115. udayana journal of law and culture vol. 7 no. 2, july 2023 190 implementation of government goods/services procurement activities, as well as requests for the disbursement of activity funds to be completed 100%, and payments were made in two stages with a value greater than the actual value.42 decision no. 1987 k/pid.sus/2016 convicted the defendant in the road widening case, where payment has been made in full even though the implementation of the widening activities is still lacking and the work has not been completed. the same mode can also be seen in supreme court decision no. 2421 k/pid. sus/2016. the actions of defendant i who had signed the minutes of handing over the first work and the request for payment of 5% retention which had been submitted were incorrect and not in accordance with the concrete reality.43 puspitasari and lukman (2021) examined government goods/services procurement fraud schemes. based on the corruption case in the procurement of goods/services, the commitment making officer did it in collusion in carrying out the fraud scheme. several things at least cause such action: (1) collusion is formed due to fraudulent recruitment efforts by providers on committing officers; and (2) collusion is intended to avoid and ignore internal controls. weak internal control in procuring goods/services results in ineffective corruption prevention. existing internal controls do not sufficiently regulate the broad scope of authority of the committing office.44 this condition will be more massive when pbu serves as a commitment making officer concurrently. concurrent positions as a pbu to become a commitment making officer have been carried out in the district government at the public works and spatial planning office in 2023. the budget user authority does not actually have the competence as a pbu, thus the problems found during project preparation can be seen from the preparation of technical specifications, self-estimated prices, and careless drafting of contracts, which resulted in the delay of the procurement process and contract execution. these conditions indeed tend to harm state finances. the law has responded to corruption tendencies in procuring goods/services. it can be seen in article 7 of the law no. 20 of 2001 concerning amendments to law no. 31 of 1999 concerning the eradication of corruption crimes that determines prison sentences and/or fines for contractors, construction experts who are constructing buildings, or sellers of building materials who, when handing over building materials, commit fraudulent acts that could endanger the security of people or goods, as well as any person in charge of supervising the construction or delivery of building materials who deliberately allows such fraudulent acts. in several cases of criminal acts of corruption, the person legally responsible is the commitment making officer, even though he only exercises the delegation of authority from the budget user/pbu. previously, corruption cases that illustrate criminal consensus by pbu and commitment making officers in procuring goods and services have been 42 see the supreme court decision no: 2413 k/pid.sus/2016. 43 see the supreme court decision no: 1987 k/pid.sus/2016. 44 meliana puspitasari and randhi pradana lukman, “peluang fraud pejabat pembuat komitmen (ppk) atas pengadaan barang dan jasa pemerintahan,” conference on economic and business innovation (cebi) (2021): 13. measuring corruption tendency in exercising authority of the proxy of budget user: a legal culture perspective i made sudarsana and aaa ngurah sri rahayu gorda 191 discussed. suppose pbu concurrently serves as a commitment making officer; in that case, it will make it easier for the pbu to commit a criminal act of corruption without being involved and known by other parties. the expansion of the authority of pbu as regulated in article 10 (5) of pr 12/2021 will reduce the control function in an institution. such expansion will hinder the implementation of the principles of good governance in the procurement of government goods and services. the control function in procurement is undoubtedly essential in using regional finance. the complexity of regional financial audits involving various institutions with their respective objectives and interests then results in the juridical application as mandated by the constitution, and the package of laws in the field of regional finance cannot run optimally without synergistic supervision as, until now, there is still overlapping authority between institutions examiner.45 concurrent positions of the pbu that can also serve as a commitment making officer in the procurement of goods/services will facilitate a culture of collusion and nepotism between the pbu and the person desired to work on the project. collusion is an agreement or cooperation against the law between state administrators or between state administrators and other parties that harms other people, society and/or the state.46 at the same time, nepotism is any unlawful act by state administrators that benefits the interests of his family and or his cronies above the interests of the community, nation, and state.47 this condition will facilitate corruption in the procurement of government goods/services. 2.3. reformulation of proxy of budget users policymakers are involved in making the devastating impact of corruption on economic development. therefore, it is essential to prioritize strengthening legal institutions such as robust, accountable, and independent justice systems, strict and impartial public administration, and transparent laws with predictable enforcement. 48 corruption in the procurement of goods and services occurs because good governance principles have not been optimally implemented in the procurement of government goods and services. by applying the concept of good governance, the government, society, and the business world will be able to check each other’s actions or inactions. in order to create better government administration, especially in improving the quality of procurement services, the government should initiate electronic procurement that is expected to increase transparency and accountability and prevent corruption. 45 fajriatul mukarramah kasman, “pelaksanaan dan pertanggungjawaban apbd terhadap pengelolaan keuangan daerah,” supremasi hukum: jurnal kajian ilmu hukum 6, no. 2 (2017): 139. 46 law of the republic of indonesia no. 28 of 1999 concerning the organization of a state that is clean and free from corruption, collusion and nepotism, art. 1 (4). 47 ibid., art. 1 (5). 48 shrabani saha and kunal sen, “do economic and political crises lead to corruption? the role of institutions,” economic modelling 124 (2023): 106307. udayana journal of law and culture vol. 7 no. 2, july 2023 192 transparency and accountability are essential principles in procuring goods and services. the elements of transparency and integrity are essential in developing strategies to deal with issues related to corruption. 49 transparency focuses on the procurement of goods and services carried out openly and can be accessed by the public. in this regard, the procurement must be run honestly, meet applicable laws, and not discriminate. in addition, tenders should be conducted honestly and openly, encouraging fair business competition; therefore, the quality of work and prices are correct, and the results are helpful and can be utilized in the interests of all parties.50 the oecd notes that transparency requirements might be less efficient for preventing pre-bidding collusion between firms than corrupt practices between agencies and firms. however, ex-ante transparency can also make pre-bidding collusion and cartel maintenance more complex, making the process more distant and depersonalized.51 accountability can reduce corruption and other abuses, assure compliance with standards and procedures, and improve performance and organizational learning. it also demands that institutions explain and justify their results to internal and external monitors or stakeholders and impose sanctions when performance falls short or corruption is found. 52 this objective is in line with the principles of good governance in the government administration process that underlines a democratic, transparent, clean, responsible, effective, and efficient government. 53 a monitoring and evaluation procedure for measures to improve legal culture in society was introduced to assess ongoing measures to enhance a democratic legal culture.54 this democratic legal culture will refer to community participation to oversee transparency and quality in government projects. the legal culture in society functions to achieve the primary purpose of the law, namely, to bring justice.55 good governance is the active and productive cooperation between the state and citizens, and the key to its success lies in the powers participating in political administration. only when citizens have sufficient political power to participate in elections, policy-making, administration, and supervision 49 marlina wati ishak and jamaliah said, “assessing the role of anti-corruption initiatives in reducing lobbyist involvement in e-procurement: a case study of mardi,” procedia economics and finance 31 (2015): 485-494. 50 a. fiskhinindya, a. yunani, and a. t. sompa, “implementation of good governance principles in procurement of regional government goods and services by the procurement service unit (ulp) banjarbaru city, indonesia,” european journal of management and marketing studies 4, no. 1 (2019): 68. 51 monika bauhr et al, “lights on the shadows of public procurement: transparency as an antidote to corruption,” governance 33, no. 3 (2020): 495. 52 j. c. kohler and d. dimancesco, “the risk of corruption in public pharmaceutical procurement: how anti-corruption, transparency and accountability measures may reduce this risk,” global health action 13, sup1 (2020): 1694745. 53 lati praja delmana, “pengaruh penerapan good governance dalam e-purcashing terhadap pencegahan korupsi,” jurnal ilmu pemerintahan widya praja 45, no. 1 (2019): 47. 54 zafar ergashev, “democratic legal culture: how strong are values?,” the american journal of political science law and criminology 3, no. 5 (2021): 87. 55 arsyad aldyan, “the influence of legal culture in society to increase the effectiveness of the law to create legal benefits,” international journal of multicultural and multireligious understanding 9, no. 11 (2022): 323. measuring corruption tendency in exercising authority of the proxy of budget user: a legal culture perspective i made sudarsana and aaa ngurah sri rahayu gorda 193 can they prompt the state and join hands to build public authority and order. 56 citizen participation has been widely recognized as an effective means of controlling corruption in a country. a bottom-up approach in which citizens are empowered to participate in policy decision-making and to share their opinions and experiences in creating change. 57 good governance practices in the procurement process and quality procurement are the greatest desires for all types of organizations from local and global perspectives. this study has focused on quality procurement and its tools with good governance practices both in public and private sector organizations in bangladesh to compare the level of quality procurement.58 early prevention and detection efforts can be made with an excellent legal formulation. the procurement of goods/services for each government agency should be based on an annual plan which elaborates the agency’s strategic plan so that goods/services are purchased because they are needed to support the implementation of the agency’s duties and functions. another critical aspect in the procurement of goods/services is the consideration of the professionalism and integrity of the leader, the authorization of goods users and pbu, and the selection of the procurement committee and project leader. thus, the division of authority of the parties involved in the procurement of government goods/services must be appropriately formulated to prevent abuse of authority which will result in state financial losses. the role of the commitment making officer is crucial in preventing corruption in the procurement of goods/services. this officer is responsible for almost all stages of procuring goods/services, namely administrative, technical, and financial aspects.59 given such an important role, this task should be carried out by professional people rather than in concurrent positions. provisions for concurrent positions, as regulated in article 10 (5) of the pr 12/2021, must be reformulated immediately. in setting the authority of pbu in the future, pbu may not hold concurrent positions as commitment making officer. leaders at the regional level need to increase the capacity and capability of employees to become commitment making officers to realize sustainable procurement. based on the quadruple bottom line principle, sustainable procurement can be defined as the acquisition of materials and services using the most effective and efficient way to implement environmental, economic, and social good governance. sustainable procurement is the procurement of goods/services that aims to achieve an economically beneficial value not only for ministries/institutions/regional apparatuses as users but also for the 56 yu keping, “governance and good governance: a new framework for political analysis,” fudan journal of the humanities and social sciences 11, no. 1 (2018): 1. 57 anupriya khan, satish krishnan, and amandeep dhir, “electronic government and corruption: systematic literature review, framework, and agenda for future research,” technological forecasting and social change 167 (2021): 120737. 58 m. k. hossain and m. z. islam, “good governance practices in procurement operations and quality procurement: a comparative study between public and private sector organisations in bangladesh,” international journal of procurement management 14, no. 6 (2021): 796. 59 mahardhika, loc.cit. udayana journal of law and culture vol. 7 no. 2, july 2023 194 community, as well as significantly reducing negative environmental and social impacts in the entire cycle of its use. the control system in the procurement of government goods/services is critical to ensure that the community obtains the best quality of goods/services. participation, transparency, and accountability will improve if they are supported by an accounting system or report that produces timely information. the phenomenon that must be observed to be developed in improving the welfare and prosperity of the people today is the demand for organizations engaged in services such as central and regional governments, regional government work units, and state institutions that are required to carry out public accountability.60 transparency is crucial to curb undesirable outcomes in public procurement, such as malfeasance, breaches of contract, and general inefficiency. 61 in ensuring transparency and accountability in the procurement of government goods/services, the position as the pbu should not be concurrently a commitment making officer. the general public suffers when the allocation of resources is misdirected to corrupt activities.62 3. conclusion pr 12/2021 expands the authority of pbu to concurrently serve as commitment making officer in procurement activities using regional budgets. the concurrent position is no longer limited by the absence of a commitment making officer as in the previous provisions. the culture of corruption will grow if there is a centralization of authority in just one person, mainly if it is carried out for a long time. this condition reduces internal control's function in procuring goods/services at the regional level. as a result, the plausibility of corruption in procurement activities will be even greater. reformulation of the dual authority of this position needs to be done. in future provisions, pbu may not hold concurrent positions as commitment making officer. the solution that can be offered in this case is to optimize human resource development and provide fair opportunities for employees who have the potential to become commitment making officers. anti-fraud and anti-bribery policies must be internalized in the legal culture of the community providing goods/services and the government. the culture of professionalism should gradually replace the culture of asking for help to be given a job, the culture of being reluctant to help people who ask, the culture of offering money as a thank-you, and the culture of helping because of shared family history. 60 yudi rahman and fauzi firdaus, “pengaruh penerapan good governance dan standar akuntansi pemerintah terhadap akuntabilitas keuangan kecamatan di kabupaten barito kuala,” jurnal ilmiah ekonomi bisnis 6, no. 3 (2020): 410. 61 jorge gallego, gonzalo rivero, and juan martínez, 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k/pid.sus/2016. website content european commission. “internal market, industry, entrepreneurship and smes.” https://single-market-economy.ec.europa.eu/singlemarket/public-procurement/international-public-procurement_en indonesia corruption watch. “pemetaan potensi kecurangan dalam metode e-purchasing pada proses pengadaan barang/jasa di indonesia.” https://antikorupsi.org/index.php/id/pemetaan-potensi-kecurangandalam-metode-e-purchasing-pada-proses-pengadaan-barangjasa-diindonesia https://single-market-economy.ec.europa.eu/single-market/public-procurement/international-public-procurement_en https://single-market-economy.ec.europa.eu/single-market/public-procurement/international-public-procurement_en https://antikorupsi.org/index.php/id/pemetaan-potensi-kecurangan-dalam-metode-e-purchasing-pada-proses-pengadaan-barangjasa-di-indonesia https://antikorupsi.org/index.php/id/pemetaan-potensi-kecurangan-dalam-metode-e-purchasing-pada-proses-pengadaan-barangjasa-di-indonesia https://antikorupsi.org/index.php/id/pemetaan-potensi-kecurangan-dalam-metode-e-purchasing-pada-proses-pengadaan-barangjasa-di-indonesia udayana journal of law and culture vol. 01 no.2, july 2017 71 the reasonable person for our time for reasonableness in a heterogeneous society ceilia divakaran* charles darwin university school of law, darwin, australia 1. introduction the social blight of aboriginal overrepresentation in the justice system in australia continues to pose a legal and moral challenge.1 some jurists, through their judgments and discourse, have examined systemic deprivation in the background of aboriginal defendants and its impact on aboriginal offending, as evidenced in the wide discretion applied when an aboriginal defendant is before their court.2 * correspondence: duende@bigpond.net.au 1 stephen rothman am, the impact of bugmy and munda on sentencing aboriginal and other offenders, paper delivered at the ngara yura committee twilight seminar on 25 february 2014. his honour makes the case for consideration in sentencing of aboriginal defendants’ who suffer exclusion from society, discrimination and disempowerment in an application of equal justice. 2 see bugmy v the queen [2013] hca 37, munda v western australia [2013] hca 38, r v ipeelee [2012] 1 scr 433, r v gladue [1999]1 scr 688. abstract the cases of bugmy and munda decided by the high court of australia in 2013 raised the impact of social deprivation on aboriginal defendants, in that it mars the development of an individual exposed to alcohol and alcohol-fuelled violence, and that full weight must be given to this in sentencing considerations. this significant legal precedent, in the backdrop of aboriginal over-representation in the criminal justice system, invites the question of the relevance of the characterisation of the reasonable person in the law of provocation and delivery of equal justice, in a culturally heterogeneous society such as australia. the paper prosecutes the case for exploring the construction of a contemporary reasonable person clothed in aboriginal identity, for equitable sentencing outcomes for aboriginal defendants. keywords: contemporising reasonable person, equal justice for aboriginal defendant, reasonable person test in heterogeneous society. how to cite: divakaran, ceilia. 2017. “the reasonable person for our time for reasonableness in a heterogeneous society”. udayana journal of law and culture 1 (2): 71-97. doi:10.24843/ ujlc.2017.v01.i02.p01. doi: https://doi.org/10.24843/ujlc.2017.v01.i02.p01 copyright © 2017 ujlc. all right reserved vol. 01, no. 2, july 2017, 71-97 72 in bugmy v the queen3, the hon rothman j described the high court as ‘having confined to the dustbin of judicial history’4 a growing body of opinion to restrict the principle that neither time nor prior offending diminished the applicability of the fernando principles.5 legal scholars have also raised doubt about the ‘reasonable person’ doctrine, whilst having served the law well, nonetheless in a culturally heterogeneous society becomes even more a legal fiction.6 as lord reid pointed out in healthcare at home limited v the common services agency (scotland),‘in recent times, additional passengers from the eu have boarded the clapham omnibus’.7 australia’s inheritance of the british westminster system of law and its robustness to serve a culturally diverse nation, whilst upholding the virtues of equality before the law, has come into question.8 achieving equal justice involves how substantive law and the legal system embraces cultural diversity, although law reform is always fraught, so we must look to administrators within the criminal justice system who may have a direct and beneficial effect on this goal.9 this research article is an inquiry into the merits of giving consideration to contemporising the ‘reasonable person’, and examining reasonableness under the circumstances in sentencing aboriginal offenders, to achieve the goal of dispensing equal justice in the aristotelian sense of ‘formal equality’.10 the research examined the meaning of equality and equal justice in the context of a multicultural society, with a focus on aboriginality of defendants before the courts. the article discusses the challenges to the traditional construction of the ‘reasonable person’ test and the relevance of its characterisation in respect of an aboriginal accused. a possible consequence of this is to expand the scope of individualised justice in sentencing to include aboriginality as a mitigatory factor, so as to improve justice outcomes for aboriginal defendants in the justice system. it is argued there may be a case to be established for similar treatment of other minorities in societies outside australia where sentencing considerations could be informed by the contemporised ‘reasonable person’ test. it is now 25 years since the royal commission into aboriginal deaths in custody handed down its final report containing 333 recommendations to address aboriginal 3 bugmy v the queen [2013] hca 37. 4 rothman am,loc.cit. 5 ibid. 6 the reasonable person has been portrayed as ‘the spokesman who represents after all no more than the anthropomorphic conception of justice, is and must be the court itself’lord radcliffe in davis contractors ltd v fareham urban district council [1956] ac 696, 728, see hall v. brooklands auto-racing club (1933) 1 kb 205 for a reference to the reasonable person as the man on the clapham omnibus. 7 healthcare at home limited v the common services agency (scotland) [2014] wlr(d) 351. 8 robert french ac, “equal justice and cultural diversity: the general meets the particular”, http:// www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj14mar15.pdf. 9 ibid. 10 antonhermann chroust and david l osborn, “aristotle’s conception of justice,” notre dame law review 17, no. 2 (1942): http://scholarship.law.nd.edu/ndlr/vol17/iss2/2 the reasonable person for our time for reasonableness in a heterogeneous society ceilia divakaran udayana journal of law and culture vol. 01 no.2, july 2017 73 over-representation in the criminal justice system in australia.11 since that time, institutional deaths have increased and aboriginal people remain over-represented in the prison population, at a rate of 12 times that of the rest of the australian population.12 in the northern territory, aboriginal people make up 29% of the general population and 80% of the prison population.13 the chief justice of the supreme court of south australia, in referring to the 46% aboriginal youth detention, said it was not just a crisis for the indigenous community, but a crisis for the whole community.14 in the intervening years there have been other important inquiries and reports15 highlighting the social position of aboriginal people in australian society and their significant disadvantage. this body of knowledge has informed judicial thinking, giving rise to a growing number of cases16 where courts have handed down judgment distinguishing it on the basis of disadvantage suffered by the aboriginal defendant. the high court judgment in bugmy v the queen17 in 2013 makes this point unequivocally. legal scholars18 have been examining the issue of sentencing of aboriginal offenders in the backdrop of aboriginal over-representation. the commentary on bugmy19 is that it affirmed social deprivation as a relevant consideration and worthy of mitigation in sentencing.20 however, the court fell short of accepting that judicial notice should be taken of the systemic background of deprivation of many aboriginal offenders.21 so operationalising the ‘bugmy discount’22 in advancing social 11 royal commission into aboriginal deaths in custody national report. may 1991.http://www.austlii. edu.au/au/other/indiglres/rciadic/#national. 12 australian institute of criminology, ”indigenous justice in focus, australian institute of criminology 5 may 2015,” http://www.aic.gov.au/crime_types/in_focus/indigenousjustice.html. 13 ibid. 14 andrew dowdell, “supreme court chief justice chris kourakis hits out at south australian indigenous toll”, http://www.adelaidenow.com.au/news/south-australia/supreme-court-chief-justicechris-kourakis-hits-out-at-south-australia-indigneous-jail-toll/news-story/7c47494e368a5f7d526c60eb5 175dd97. 15 aboriginal and torres strait islander social justice commissioner reports. bringing them home report on stolen generations. may 1997. 16 see fernando (1992) 76 a crim r 50, houghagen v charra (1989) 50 sasr 419, leech v peters (1988) 40 a crim r 350, r v grose (2014) 114 sasr 92, bugmy v the queen [2013] hca 37, r v hughes; r v rigney-brown [2016] sascfc 126, lindsay v the queen [2015] hca 16. 17 bugmy v the queen, loc.cit. 18 trevor riley, “aborigines and the court: the northern territory experience,” northern territory law journal 2, no. 4 (2012), http://sites.thomsonreuters.com.au/journals/files/2012/09/nthn-territorylaw-jnl-vol-2-no-4-sep-2012.pdf 19 bugmy v the queen, loc.cit. 20 thalia anthony, lorana bartells and anthony hopkins, “lessons lost in sentencing: welding individualised justice to indigenous justice,” melbourne university law review 16 (2015),http://www5. austlii.edu.au/au/journals/melbulawrw/2015/16.html. 21 ibid. 22 “taking indigenous over-imprisonment seriously: time for concrete solutions not more good intentions”,editorial, criminal law journal 39 no.5 (2015):231. http://sites.thomsonreuters.com.au/journals/ files/2015/10/crim-lj-vol-39-no-5-contents.pdf 74 disadvantage as a mitigatory factor for all aboriginal defendants was not supported by the court.23 2. result and discussion 2.1. the reasonable person test 2.1.1. biography of the reasonable person the ‘reasonable person’ is ‘that excellent but odious character’ that inhabits every nook and cranny of the common law.24 lord aitkin in donoghue v stevenson25 gave us the distillation of the ‘neighbour principle’ -you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.26 the ‘reasonable person’ is used to assess the acceptability of behaviour in many areas of the law including, criminal law. however, this doctrine has also attracted substantial criticism from egalitarian critics and feminists insofar as it presupposes contested notions of ‘normal’ behaviour and may discriminate against certain classes of defendants.27 when the ‘reasonable person’ test is applied in the context of an aboriginal defendant and we ask what a person would do “given the circumstances”, the question that follows is, what circumstances are we talking about? it is argued that we have only a vague sketch of the ‘reasonable person’s biography.28 if the accused had killed his victim under provocation, he would only establish the defence if the ‘reasonable person’ would have been so provoked. this ‘reasonable person’ (a non-aboriginal person) frequently bears none of the personal characteristics of the accused (aboriginal person). the ‘reasonable person’ test in the united kingdom was examined by christie29 in considering the partial defence of provocation and the ‘characteristics imputed to him in the light of the accused’s own character’.30 attitudes were said to vary, that ‘the doctrine weakens the legal requirement of self-control and is therefore only 23 ibid. 24 john gardner, “the mysterious case of the reasonable person,” univercity toronto law journal 51(2001): https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1397115. 25 donoghue v stevenson [1932] ac 562. 26 ibid. 27 mayo moran, “rethinking the reasonable person-an egalitarian reconstruction of the objective standard,” http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199247820.001.0001/ acprof-9780199247820. 28 ibid. 29 sarah christie,”provocation-pushing the reasonable man too far?”, journal of criminal law 64(2000), https://doi.org/10.1177/002201830006400410. 30 ibid. the reasonable person for our time for reasonableness in a heterogeneous society ceilia divakaran udayana journal of law and culture vol. 01 no.2, july 2017 75 acceptable where the accused has been pushed to extremes’.31 whilst this narrow interpretation of the ‘reasonable person’ provides for an objective test, some would argue ‘in the interests of attaining justice, characteristics of the accused should be imputed to the ‘reasonable person in order to acknowledge that some people will find conduct more provoking than others, and that some individuals may have a lower threshold of self-restraint which should be taken into account’.32 in english law, judges used to direct juries to consider the accused’s conduct in the context of provocation and how a ‘reasonable person’ would have reacted to such provocation33. this was a subjective test to look at the provocative effect on the conduct of the ordinary man even when the accused may have suffered some condition that made him react differently and where the ordinary man shared no personal characteristics with the accused.34 the second limb of this test was to ascertain if the accused was shown to have exercised an appropriate level of self-control and forhis test, those individual characteristics are ignored, leading to an objective assessment for this test.35 the second test gives no consideration as to whether the accused may have suffered some disability, mental health condition or social disadvantage.36 the introduction of the homicide act 1957 in the united kingdom, resulted in a different judicial approach being taken, as evidenced in camplin.37 in this case, involving the taunting and rape of a 15 year old boy, the house of lords affirmed s3 of the homicide act 195738 by giving consideration to the reasonable boy, ‘a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused’.39 lord diplock classified the ‘reasonable man’ as someone of either sex ‘... not exceptionally excitable or pugnacious’, which has remained the law, but went on to mitigate the test by allowing age to be included.40 however, ‘the degree of self-control 31 ibid. 32 ibid. 33 j. smith and b. hogan, criminal law, 8th ed, (london: butterworths, 1996), 367. 34 ibid. 35 ibid. 36 see also lindsay v the queen, loc.cit. 37 regina (director of public prosecutions) v camplin[1978] 2 all er 168. 38 s3homicide act 1957 (uk),”where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man”. 39 regina (director of public prosecutions) v camplin, loc.cit. 40 ibid. 76 expected of him would reflect only the accused’s age and sex, thus remaining as objective as possible’.41 lord diplock went on to state, ‘the jury is entitled to act upon its own opinion of whether the objective element of provocation has been satisfied and the judge is not entitled to tell them that for this purpose the law requires them to exclude from consideration any of the circumstances or characteristics of the accused’.42 the issue of whether personal characteristics of the accused should be taken into account in the second limb test relating to the accused’s exercise of self-control was considered in smith (morgan james).43 the defendant, who suffered from severe clinical depression, sought to rely on the defence of provocation in a murder trial. the court held that it was relevant to an assessment of the gravity of the provocation aimed at the accused – someone who is severely depressed would probably view conduct as more provocative than someone not so afflicted.44 relevantly, the court viewed this characteristic of the accused as having an impact on the level of self-control to be expected of smith. the court held, ‘when directing a jury on the law of provocation, it was no longer appropriate to direct the jury to disregard any particular characteristics of the defendant when asking whether the provocation was such as to make a reasonable person lose his self-control’.45 christie concluded that ‘english law now requires that the ‘reasonable man’ should have all the mental and physical characteristics of the accused in relation to the gravity of the provocation.46 in an australian case stingle,47 the accused, who was infatuated with his former girlfriend, stabbed her lover to death with a butcher’s knife. the court relied on provisions of the criminal code regarding ‘wrongful act or insult which deprives the ordinary man of self-control’,48 in examining the question of provocation as a defence.49 drawing on the judgment in reg. v hill50 to measure the conduct of the accused against the ‘ordinary man’, wilson j identified the rationale underlying the 41 ibid. 42 ibid. 43 regina v smith (morgan james) hl 27 jul 2000. 44 christie, op.cit. 45 regina v smith (morgan james), loc.cit. 46 christie, op.cit. 47 stingle v r [1990] hca 61. 48 s160 (2) criminal code (tas), “any wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self-control, and which, in fact, deprives the offender of the power of self-control, is provocation, if the offender acts upon it on the sudden, and before there has been time for his passion to cool”. 49 stingle v r, loc.cit. 50 reg. v. hill (1986) 1 scr 313. the reasonable person for our time for reasonableness in a heterogeneous society ceilia divakaran udayana journal of law and culture vol. 01 no.2, july 2017 77 objective test to be; the objective standard, therefore, may be said to exist in order to ensure that in the evaluation of the provocation defence there is no fluctuating standard of self-control against which accused are measured. the governing principles are those of equality and individual responsibility, so that all persons are held to the same standard notwithstanding their distinctive personality traits and varying capacities to achieve the standard.51 the court added, however, that it does not mean that the objective test was intended to be applied in a vacuum or without regard to such of the accused’s personal characteristics, attributes or history as serve to identify the implications and to affect the gravity of the particular wrongful act or insult.52 conduct which may in some circumstances be quite unprovocative may be intensely so in other circumstances, hence the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused.53 in this instance the court accepted that all the relevant characteristics of the accused’s age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult in evaluating the gravity of the provocation.54 the role and relevance of the ‘reasonable person’ test was also considered in masciantonio v r.55 in this case, the minority judgment by mchugh j raised the curious dichotomy that ‘the personal characteristics and attributes of the accused are relevant in determining the effect of the provocative conduct but they are not relevant in determining the issue of the self-control…the distinction has been strongly criticised on the ground that it runs counter to human reality’.56 mchugh further remarked, the “ordinary person” standard becomes meaningless if it incorporated the personal characteristics of the accused on both the issue of provocation and self-control.57 his honour saw this as signalling inconsistency with the rationale of the objective test, which is ‘too deeply entrenched in common law to be excised by judicial decision’.58 nevertheless, in multicultural australia, mchugh j accepts that ‘an ordinary person is pure fiction’ concluding that, ‘unless the ethnic or cultural background of the accused is attributed to the ordinary person, the objective test of self-control 51 ibid. 52 stingle v r, loc.cit. 53 ibid. 54 ibid. 55 masciantonio v r [1991] hca 22. 56 ibid. 57 ibid. 58 ibid. 78 results in inequality before the law.59 real equality before the law cannot exist when ethnic or cultural minorities are convicted or acquitted of murder according to a standard that reflects the values of the dominant class but does not reflect the values of those minorities.60 mchugh j’s proposed retort, if there is a cry of one law of provocation for one class of persons and another law for a different class, is that this must be the natural consequence of true equality before the law in a multicultural society.61 his honour noted it would be much better to abolish the objective test of self-control in the law of provocation than to perpetuate the injustice of an “ordinary person” test that did not take into account the ethnic or cultural background of the accused.62 this subjectivity and objectivity standard was described as a false dichotomy by burke63 in looking at self-defence and the battered woman syndrome. burke contends, the distinction is unhelpful because once we decide to employ an objective test, we must go on to consider which circumstances ought to be included in asking how the reasonable person would act’.64 an objective standard of reasonableness compares the defendant’s beliefs to those of a hypothetical ‘reasonable person’, without taking into account the individual circumstances of the defendant.65 from a pragmatic point of view it defies common sense to ask what the ‘reasonable person’ would do given the circumstances if the defendant’s circumstances are not described nor well understood. a “noncontextual” reasonableness standard would measure the defendant’s beliefs against those of a hypothetical ‘reasonable person,’ without taking into account the individual characteristics of the defendant. the significance of this for an aboriginal defendant looms large. aboriginal offenders are over-represented in the criminal justice system66 and the social disadvantage many suffer across a range of socio-economic factors is not well understood in mainstream australian society.67 while the jury system may be the showpiece of the principle of impartiality, selected at random, in practice very 59 ibid. 60 ibid. 61 ibid. 62 ibid. 63 alafair s. burke, “rational actors, self defense and duress: making sense not syndromes out of the battered woman”, north carolina law review 81 (2002), http://scholarlycommons.law.hofstra.edu/ faculty_scholarship/165. 64 ibid. 65 ibid. 66 australian institute of criminology,loc.cit. 67 in bugmy v the queen [2013] hca 37 the court held social deprivation does not diminish over time and repeat offending. the reasonable person for our time for reasonableness in a heterogeneous society ceilia divakaran udayana journal of law and culture vol. 01 no.2, july 2017 79 few aboriginal people make up the composition of a trial jury.68 it follows that the general level of understanding of aboriginal disadvantage may not be present in a jury trial involving an aboriginal defendant. the australian law reform commission highlighted its concern about the underrepresentation of aboriginal people on juries despite being heavily overrepresented in the criminal justice system.69 2.1.2. a heuristic theory to define the reasonable person nourse,70 challenges the conventional notion of the ‘reasonable person’, suggesting an alternative approach based on heuristic theory and argues that equality will be better served through a normative analysis of the reasonable person instead of through the subjectivity/objectivity debate.71 traditionally the subjectivity/objectivity debate was focussed on the identity of the ‘reasonable person’, whether to include characteristics of age or sex or culture. jurisdictions sensibly applied a hybrid model of subjectivity and objectivity because, if the subjective component of the ‘reasonable person’ standard includes the norms of the defendant, no trial would be possible or if any contextual component were eliminated, extreme versions of the objective standard could remove consideration of physical facts.72 the jury is tasked to judge the defendant by the standards of the ‘reasonable person’, but importantly, the ‘reasonable person “in the situation.”73 in the case of an aboriginal defendant, the jury, must reasonably, give consideration to the context of social disadvantage suffered and the impact this may have on the conduct of the defendant from such circumstances. nourse asserts that scholars have made an ‘analytic mistake’74 by assuming the ‘reasonable person is a person; he is an ‘institutional heuristic of anthropomorphic form’.75 if the reasonable person is a ‘heuristic for law’s institutional aims’76, in criminal law, he is able to ‘adjudicate the relationship of the defendant to the state’77 applying majoritarian norms and individualise, by considering the defendant in the 68 mark israel, “ethnic bias in jury selection in australia and new zealand”, international journal of the sociology of law 26 (1998), https://doi.org/10.1006/ijsl.1998.0057 69 australian law reform commission report on aboriginal customary law report 31<https://www. alrc.gov.au/sites/default/files/pdfs/publications/alrc31.pdf>. 70 victoria nourse, after the reasonable man: getting over the subjectivity/objectivity question, new criminal law review 11, no1 winter 2008 <http://scholarship.law.georgetown.edu/cgi/viewcontent. cgi?article=2133&context=facpub>. 71 ibid. 72 victoria nourse, “after the reasonable man: getting over the subjectivity/objectivity question,” new criminal law review 11, no.1 (2008), http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?ar ticle=2133&context=facpub. 73 ibid. 74 ibid. 75 ibid. 76 ibid. 77 ibid. 80 situation.78 however, this process of both ‘reflecting and restraining’79 majoritarian norms is ‘a complex task for a single metaphorical person to handle’.80 a system devised to optimise all information and enable decision making without reference to the context is said to lack ecological rationality, i.e. a rational decision which considers the rules but does not take into account the environment or context. nourse raises the question of whether prior victimisation could be classified as part of the characteristics of the ‘reasonable person’ by exploring two cases, state v. norman81 and people v goetz.82 in the first, the defendant, after years of domestic tyranny involving degrading abuse in which she was prostituted, deprived of food, made to sleep on the floor and driven to attempt suicide, finally killed her husband in his sleep.83 in the second case, goetz shot at four african-american youths on a subway after one of them approached him and said, ‘give me five dollars’, because he carried a fear based on a previous experience of being maimed.84 because the norm is that most individuals are not victims in the sense of the two defendants described, it may be argued that prior victimisation should not be part of the characteristics of the ‘reasonable person’. however this is not so; in criminal law prior threats have been admissible evidence.85 this begs the question, what norms are we judging the reasonableness on? what it does reveal is that the “characteristics” question, in its aim to be normatively agnostic, may yield results quite at odds with standard legal doctrine.86 nourse argues that norms relied on in judging reasonableness is influenced by ‘cultural default rules’87 which are silently invoked, they come from the ‘veil of relationships’88, from the ‘institution of family and gender’89 and both mediate and swamp the application of law.90 all this does not mean the metaphor of the ‘reasonable person’ loses its place in enabling an emotional identification with the defendant 78 ibid. 79 ibid. 80 ibid. 81 state v norman 378 s.e.2d 8, 10 n.c. 1989. 82 people v goetz 497 n.e.2d 41 n.y. 1986. 83 state v norman, loc.cit. 84 people v goetz, loc.cit. 85 nourse, op.cit. 86 ibid. 87 ibid. 88 ibid. 89 ibid. 90 ibid. the reasonable person for our time for reasonableness in a heterogeneous society ceilia divakaran udayana journal of law and culture vol. 01 no.2, july 2017 81 and for the jury to decide between the law-abiding and the law-breaker.91 but what it does is to proffer caution in scrutinising reasonableness without contextualising it. 2.2. equality aristotle (384-322 bce) said, ‘the worst kind of equality is to try and make unequal things equal’.92 aristotle’s conception of justice has two strings; conduct which conforms to an authoritative rule of human conduct which makes man act righteously (moral justice) and justice that signifies equality, where a just law in action lies between defect and excess.93 the principle of equality creates a moral criterion for the administration of human conduct and by consequence, our moral evaluation of an action is influenced by our personal views as to how we measure the correctness of a particular action as to where it exceeds or falls short of the mean (i.e. the reasonable person) as expressed by the principle of equality.94 justice, according to aristotle, is a virtue, a social virtue, as it involves a relationship with others, as it is displayed to others not towards oneself.95 in his theory of law, aristotle distinguishes between ‘commutative justice’96 and ‘distributive justice’97; unlike the latter form, the former concept of justice ignores the rank of the persons involved in the dispute.98 the principle of justice and equality, on the other hand, takes account of the two claims and the two persons involved; should these two people be of unequal rank, they cannot be treated alike, as equality demands that only equals be treated equally.99 equality in justice apportions burdens according to the individual’s ability to carry them and accords support that is proportional to the needs of such individuals.100 this is the underpinning of ‘distributive justice’. aristotle’s contemplation of ‘strict equality’ is where justice rests upon the principle that all persons involved are absolute equals and the law purely examines the nature of loss or damage by the relative worth of differing claims and restores 91 ibid. 92 chroust and osborn, op.cit 93 ibid. 94 ibid. 95 ibid. 96 ibid. 97 ibid. 98 ibid. 99 ibid. 100 ibid. 82 equality.101 conversely, the principle of ‘distributive justice’ gives consideration to the two claims and the two claimants involved, and where the two claimants are not equals, ‘proportionate equality’ is dispensed.102 according to aristotle, ‘men judge erroneously’103 when people are taken out of the consideration. 2.2.1. equal justice – a bedrock issue ‘like should be treated alike and relevant difference treated rationally different. equality is a protean word, used specifically in the context of the application of law’.104 in reflecting on the judgments of bugmy v the queen105 and munda v western australia,106 the hon rothman j alluded to the fundamentals in bringing into effect the principle of equal justice.107 in munda108 the court held, ‘mitigation factors must be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the instance offence. it would be contrary to the principles stated by brennan j in neal to accept that aboriginal offending is to be viewed systematically as less serious than offending by persons of other ethnicities. to accept that aboriginal offenders are in general less responsible for their actions than other persons would be to deny aboriginal people their full measure of human dignity. it would be quite inconsistent with the statement of principle in neal to act upon a kind of racial stereotyping which diminished the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. further, it would be wrong to accept that a victim of violence by an aboriginal offender is somehow less in need, or deserving of such protection and vindication as the criminal law can provide’.109 in bugmy110 the court said, ‘of course, not all aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence. however, wood j was right to recognise both that those problems are endemic in some aboriginal communities, and the reasons which tend to perpetuate them. the circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability 101 ibid. 102 ibid. 103 ibid. 104 stephen rothman am, op.cit. 105 bugmy v the queen [2013] hca 37. 106 munda v western australia [2013] hca 38. 107 stephen rothman am, op.cit. 108 munda v western australia [2013] hca 38. 109 munda v western australia [2013] hca 38. 110 bugmy v the queen [2013] hca 37. the reasonable person for our time for reasonableness in a heterogeneous society ceilia divakaran udayana journal of law and culture vol. 01 no.2, july 2017 83 is likely to be less than the culpability of an offender whose formative years have not been marred in that way. mr fernando was a resident of an aboriginal community located near walgett in far-western new south wales. the propositions stated in his case are particularly directed to the circumstances of offenders living in aboriginal communities. aboriginal australians who live in an urban environment do not lose their aboriginal identity and they, too, may be subject to the grave social difficulties discussed in fernando. nonetheless, the appellant’s submission that courts should take judicial notice of the systemic background of deprivation of aboriginal offenders cannot be accepted. it, too, is antithetical to individualised justice. aboriginal australians as a group are subject to social and economic disadvantage measured across a range of indices, but to recognise this is to say nothing about a particular aboriginal offender. in any case in which it is sought to rely on an offender’s background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background. it will be recalled that in the court of criminal appeal the prosecution submitted that the evidence of the appellant’s deprived background lost much of its force when viewed against the background of his previous offences. on the hearing of the appeal in this court the director did not maintain that submission. the director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case’.111 rothman j remarks that equality in the application of the law is a fundamental aspect of the exercise of judicial powers, citing r v clarke;112 ‘equal justice’ embodies the norm expressed in the term ‘equality before the law’. it is an aspect of the rule of law. it was characterised by kelsen as ‘the principle of legality, of lawfulness which is immanent in every legal order’. it has been called ‘the starting point of all other liberties’….in wong v the queen,113 the court said, ‘equal justice requires identity of outcome in cases that are relevantly identical. it requires different outcomes in cases that are different in some relevant aspect…as with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect the different degrees of culpability and/or different circumstances’.114 though having no argument with the way the high court dealt with cases discussed above, rothman j raises the canadian supreme court’s treatment of s718.2(e) of the canadian criminal code, where aboriginality is accepted as a factor in sentencing.115 the case of r v glade116 is on point. here the court held, 111 bugmy v the queen [2013] hca 37, paras 40-42. 112 r v clarke [2013] nswcca 260. 113 wong v the queen [2001] hca 64. 114 rothman am,loc.cit. 115 ibid. 116 r v gladue, loc.cit. 84 ‘…it would be a misapplication of s718.2(e) to automatically reduce a sentence or exclude imprisonment merely because a particular accused is of aboriginal descent. however the provision calls on a sentencing judge to undertake a fundamentally different analysis when sentencing an aboriginal person, because aboriginal persons have unique circumstances. such an analysis must begin with an assessment of the degree to which systemic and background factors unique to aboriginal offenders have played a role in a particular accused’s life and appearances before the court. these factors will often include poverty, substance abuse, lack of education and lack of employment opportunities. where these factors have played a significant role in an aboriginal accused’s life, the analysis shifts to an assessment of the availability of appropriate alternatives to imprisonment as a sentence’.117 in this case, the sentencing judge unduly restricted the application of s718.2(e) to offenders residing on reserves and took no systemic or background factor unique to aboriginal persons into account in crafting the sentence, resulting in an error in law.118 in 2012 the supreme court of canada revisited section 718(2)(e) in r v ipeelee,119 and reaffirmed and expanded upon the principles in gladue,120 ‘section 718.2(e) is not simply a codification of existing jurisprudence, it is remedial in nature. its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. there is a judicial duty to give the provision’s remedial purpose real force’.121 the supreme court of canada continued, ‘section 718.2(e) of the criminal code was implemented in order to address the overrepresentation of aboriginal people in the canadian criminal justice system. the restorative justice approach including the consideration of the aboriginal person’s status as such as explained in r v gladue.122 the supreme court called upon judges to consider different methods in sentencing aboriginal offenders and required them to consider the possibility of systemic and background factors having a role in an aboriginal accused being involved in the criminal justice system. the failure of the legislative and judicial efforts to address the overrepresentation of aboriginal in the criminal justice system is partially due to fundamental misunderstanding and misapplication of the laws found in r v gladue123 and s718.2(e) of the code’.124 ‘under s718.2(e) trial judges have a statutory duty to consider the unique 117 ibid. 118 rothman am, loc.cit. 119 r v ipeelee, loc.cit. 120 “summary of r v gladue by the scc in the ipeelee case”, http://www.gladueprinciples.ca/downloads/ipeelee-gladue-summary.pdf. 121 ibid. 122 r v gladue,loc.cit. 123 ibid. 124 ibid. the reasonable person for our time for reasonableness in a heterogeneous society ceilia divakaran udayana journal of law and culture vol. 01 no.2, july 2017 circumstances of aboriginal offenders in sentencing. to fail to apply r v gladue would125 result in unfit sentences that are not consistent with the principle of proportionality and would be a violation of that statutory duty. the error of failing to consider and apply gladue126 principles would justify appellate intervention’.127 with the principles from ipeelee128 and gladue129 in mind, rothman j returned to the judgments in bugmy130 and munda,131 mindful that although there is an acceptance that the environment of alcohol and abuse has an impact on aboriginal accused, on the effects of discrimination, exclusion and disempowerment the court is mute.132 rothman j makes reference to the ‘baumeister tests’,133 a psychological tool, shown to disclose that social exclusion and/or rejection affects behaviour and in the context of the law, the matter of moral culpability, relevant to sentencing.134 his honour reaffirms the need for judicial officers to be vigilant, not relying on the mere fact of aboriginality but more so on the background of the aboriginal offender being sentenced.135 the challenge for aboriginal legal services is to ensure the best information comes before the court so that, with good information and good advocacy, the aboriginal offender does not receive unfair treatment. as s718.2(e) has shown, where the unique circumstances of aboriginal offenders are recognised and acknowledged, it is not a distortion of the principles of equal justice to have regard to them.136 2.2.2. equal justice and cultural diversity on the achievement of equal justice in a demographically diverse nation such as australia, the former chief justice of the high court of australia, hon robert 125 r v gladue,loc.cit. 126 r v gladue,loc.cit. 127 ibid. 128 r v ipeelee, loc.cit. 129 r v gladue,loc.cit. 130 bugmy v the queen, loc.cit. 131 munda v western australia, loc.cit. 132 rothman am,loc.cit. 133 see new south wales v hill (no 5)[2013] nswsc 140. professor baumeister is a professor of psychology at florida state university. 134 rothman am,loc.cit. 135 ibid. 136 ibid. 85 86 french ac, said that it requires all players in the legal system to be aware of and respond to the challenges of cultural differences.137 curiously, the symbol of justice is a goddess blindfolded, depicting equality before the law and thus blind to differences, including cultural attributes.138 the australian constitution allows the commonwealth parliament to make laws for people of any race and such laws would not offend against the principle of equality before the law.139 objective criteria for liability in the criminal law, such as reasonableness, may be applied from the perspective of what can be called ‘the dominant culture’.140 this may disadvantage individuals from different cultural groups who have different values. but as french cj expressed, any concern about the standards or values to which all who enter australia are expected to conform and if that is the reflection of the dominant culture, it is the price of the benefits which australian society confers.141 in its 1992 report, the australian law reform commission concluded; ‘a proliferation of different standards against which to judge the reasonableness or otherwise of a person’s behaviour in the criminal law is undesirable. to apply different standards to different groups would lessen the protection afforded to all by the criminal law’.142 however french cj, taking from both bugmy143 and munda,144 believes that, ‘the proposition that the aboriginality of a particular offender may be considered, not as a mitigating factor itself, but as a means of identifying the circumstances of the offender that are relevant to sentencing is applicable to ethnicity or culture, which in a similar way may shed light upon the existence or non-existence of factors traditionally regarded as relevant to the exercise of sentencing discretions’.145 achieving equal justice involves how substantive law and the legal system embraces cultural diversity, although law reform is always fraught, so we must look to administrators within the criminal justice system who may have a direct and beneficial effect on this goal.146 french cj is hopeful the establishment of the judicial council 137 french ac,loc.cit. 138 ibid. 139 ibid. 140 ibid. 141 ibid. 142 multiculturalism and the law 1992 alrc no. 57. http://www.austlii.edu.au/au/other/lawreform/alrc/1992/57.html#8>. 143 bugmy v the queen [2013] hca 37. 144 munda v western australia [2013] hca 38. 145 french ac, loc.cit. 146 ibid. the reasonable person for our time for reasonableness in a heterogeneous society ceilia divakaran udayana journal of law and culture vol. 01 no.2, july 2017 87 on cultural diversity would go some way to do equal justice in a culturally complex community.147 the international covenant on civil and political rights148 has provisions for the recognition and protection of cultures as a norm in international law, to ensure legal respect for cultural differences.149 in a reminder of aristotelian formal equality, the former federal court judge and president of the human rights and equal opportunity commission, the hon john von doussa pointed out, ‘it is part of a judge’s function to ensure, as far as possible, that there is equality between parties to litigation. at times this requires careful and sympathetic assessment of the potential disadvantage suffered by a party, and intervention to achieve a fair balance. none of this is possible unless the judge in a particular case is made aware of, or recognises, factors that might produce inequality’.150 2.3. sentencing principles and individualised justice laws on sentencing generally give consideration to the seriousness of the offence, adequate punishment, community protection, general and personal deterrence and rehabilitation of the offender.151 the decision in r v fernando152 remains one of the most influential decisions on the relationship between aboriginality and sentencing under criminal law, where wood cj set out the fernando principles.153 these principles makes several significant points about the same sentencing principles being applied in every case irrespective of the identity of a particular offender, but that the relevance of aboriginality is not necessarily to mitigate punishment but to shed light on the particular offence and circumstances of the offender from a deprived background with grave social difficulties and endemic presence of alcohol in communities.154 for completeness, the fernando155 principles of 1992 are thus; ‘(a) the same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group 147 ibid. 148 international covenant on civil and political rights, art. 27. 149 ibid. 150 von doussa j, launch of the supreme court equal treatment benchbook, speech delivered at banco court supreme court of queensland on 15 february 2006, https://www.humanrights.gov.au/ news/speeches/launch-supreme-court-equal-treatment-benchbook. 151 christopher charles, the law of sentencing applied to aboriginal people in south australia<http:// aija.org.au/ind%20courts%20conf%2013/papers/charles.pdf>.speeches/launch-supreme-court-equaltreatment-benchbook. 152 r v fernando (1992) 76 australian criminal reports 58. 153 richard edney, “the retreat from fernando and the erasure of indigenous identity in sentencing,” indigenous law bulletin 6 no. 17 (2006), http://www.austlii.edu.au/au/journals/indiglawb/2006/11.html. 154 r v fernando, loc.cit. 155 ibid. 88 but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders’ membership of such a group. (b) the relevance of the aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender. (c) it is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment. (d) notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive aboriginals of the protection which it is assumed punishment provides. in short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment. (e) while drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socioeconomic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. this involves the realistic recognition by the court of the endemic presence of alcohol within aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stress on them, reinforcing their resort to alcohol and compounding its worst effects. (f) that in sentencing persons of aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender. (g) that in sentencing an aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors, or who has little experience of european ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of european background with little understanding of his culture and society or his own personality. (h) that in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part’.156 156 ibid. the reasonable person for our time for reasonableness in a heterogeneous society ceilia divakaran udayana journal of law and culture vol. 01 no.2, july 2017 89 the retreat from fernando157 ten years later by the new south wales court of criminal appeal was noted in r v ceissman158 and r v pitt.159 in both instances, wood cj observed, ‘the sentencing judge was at risk of misapplying fernando160 ‘because the background facts indicated the respondent’s heritage was only “partaboriginal” and ‘nothing of an exceptional kind in the aboriginality or upbringing of the applicant that called for any particular mitigation of sentence’.161 the judicial reasoning was described as problematic because, if accepted, it meant the offender would have to argue for ‘exceptionality’ in his background history to attract fernando162 considerations.163 the test is indeterminate but appears to impute a new test on the degree of social deprivation necessary to attract the operation of these principles.164 even concerning is that such judicial decisions attempt to define contemporary aboriginal experience and who may be entitled to rely upon aboriginality for the purpose of sentencing.165 the royal commission into aboriginal deaths in custody stridently recommended imprisonment should be a sentence of last resort.166 bagaric167 examined the rise and rise of aboriginal incarceration rates and a baseline study168 revealed aboriginal offenders are more than twice as likely to be sentenced to prison as non-aboriginal offenders when they appear in court.169 he proposed two reforms; to reduce the impact of prior convictions in the ‘sentencing calculus’,170 as it cannot justify a sentence beyond that which is proportionate to the gravamen of the instant offence, and to more acutely operationalise the ‘bugmy discount’,171 as the court reasoned, such offenders are sometimes less culpable because their formative years may have been marred by being subjected to negative influences, impairing their capacity to mature and diminishing their moral culpability.172 157 ibid. 158 r v ceissman (2001) nswcca 73. 159 r v pitt (2001) nswcca 156. 160 r v fernand, loc.cit. 161 edney, op.cit 162 r v fernando, loc.cit. 163 edney, op.cit 164 ibid. 165 ibid. 166 royal commission into aboriginal deaths in custody may 1991. 167 mirko bagaric is dean of law school at deakin university. 168 using figures from abs the number of defendants is in excess of 400,000 and sample of prisoners is in excess of 30,000. 169 bagaric, criminal law journal 39 no.5, loc.cit. 170 ibid. 171 bugmy v the queen, loc.cit. 172 ibid. 90 the quest for equal justice in sentencing had its champion in 1893 in justice charles dashwood, sitting as the northern territory judge of the south australian court, who recognised the difficulties in providing justice to aboriginal accused.173 the attitude of justice administrators at that time is reflected in the illegal practice where aboriginal witnesses were kept in custody ‘for their own protection and to prevent them getting away’.174 a significant advance came in 1976 with justice forster’s judgment in r v anunga175 and the anunga rules176 which provide guidance to police officers when interrogating aboriginal persons they have apprehended. riley cj, reflecting on the centenary of the supreme court of the northern territory, noted, in the exercise of power to ensure a fair trial, judges have become more interventionist, taking tighter control over questioning of aboriginal witnesses and being alert to reduce the weight of answers to questions where gratuitous concurrence is evident.177 good advocacy, in telling the court why the defendant has not acted as a reasonable person would, is providing the court with all the relevant information such that it allows the judge to exercise the widest discretion by taking into account issues (intergenerational alcohol abuse, violence, stolen generations, child protection, loss of kinship and country), context and characteristics of the aboriginal accused. individualised justice requires judges to consider factors like social deprivation, overrepresentation in jails, historical dispossession and colonisation for aboriginal offenders. in the northern territory court of criminal appeal in r v gj,178 the wide exercise of judicial discretion is evident in having regard to aboriginality; ‘it is not in contention that where customary law conflicts with territory law, the latter must prevail. similarly, there is no doubt that an aboriginal person who commits a crime because he is acting in accordance with traditional aboriginal law is less morally culpable because of that fact’.179 this echoes justice brennan’s judgment in neal v the queen,180 where his honour said the same sentencing principles must be applied in every case, but distinguishing that courts are bound to take into account all material facts, including facts that exist only by reason of the offender’s membership to an ethnic or other group.181 173 riley, op.cit. 174 ibid. 175 r v anunga (1976) 11 alr 412. 176 the anunga rules has been described by professor les mccrimmon as ‘a uniquely territorian addition to the common law of evidence’. 177 riley, op.cit. 178 r v gj (2005) 16 ntlr 230 at 30. 179 ibid. 180 neal v the queen 149 clr 305 at 326. 181 ibid. the reasonable person for our time for reasonableness in a heterogeneous society ceilia divakaran udayana journal of law and culture vol. 01 no.2, july 2017 91 the cases referred to in this article, including bugmy v the queen182 and masciantonio v the queen183 typify the high court’s position, according to martin cj, that culture is legally relevant as a principle of consideration in the defence of provocation.184 they also reassert the principle of individualised justice. ‘justice if not individual is nothing’185, yet to a considerable extent current judicial attitudes to sentencing aboriginal people, in practice and in principle, fail to properly recognise or fully appreciate the extent and causes of disadvantage and its relevance in individual cases.186 in posing the question whether there is not enough judicial notice in the sentencing of aboriginal offenders, judge stephen norris, qc, argues there is scope within the current legislative constraints and legitimate sentencing discretion for more extensive use of judicial notice with reference to bugmy187 and munda,188 to properly assess both the objective and subjective circumstances of offending and offenders to enhance individualised justice.189 2.4. contemporising the reasonable person in writing about how lord aitkin’s judgments still guide australian law, applegarth190 observes from many of his judicial decisions, lord aitkin considered ‘that principled decisions should rest upon the judicial officer having an understanding of the conditions of life of ordinary people’.191 in his judicial career lord aitkin sought to determine legal disputes in a manner which accorded with common sense, motivated by a desire to achieve justice.192 applegarth writes, in developing the law, he was a progressive in the sense that he believed in the potential of law to improve society.193 it was lord aitkin who 182 bugmy v the queen, loc.cit. 183 masciantonio v the queen. 184 wayne martin ac, access to justice in multicultural australia, judicial council on cultural diversity, cultural diversity and law conference on 13 march 2015, http://www.supremecourt.wa.gov. au/_files/speeches_cultural%20diversity%20and%20the%20law%20conference%20-%20access%20 to%20justice%20in%20multural%20australia%20by%20the%20hon%20wayne%20martin%20ac,%20 chief%20justice%20of%20western%20australia.pdf. 185 kable v dpp (1995) 38 nswlr 374. 186 stephen norris qc, sentencing aboriginal offenders –not enough ‘judicial notice’? judicial conference of australia colloquium, sydney 13 october 2013. 187 bugmy v the queen [2013] hca 37. 188 munda v western australia [2013] hca 38. 189 stephen norris qc, op.cit. 190 p d t applegarth, “lord aitkin: principle and progress”, the australian law journal 90 no.10 (2016): http://sites.thomsonreuters.com.au/journals/files/2016/10/alj-vol-90-no-10-contents-final.pdf. 191 ibid. 192 ibid. 193 ibid. 92 gave us ‘the most influential common law decision of the twentieth century’194 in donoghue v stevenson,195 the case that established the doctrine of the ‘neighbour principle’ which morphed into the ‘reasonable person’ test. taking nourse’s proposition of the reasonable person as an ‘institutional heuristic’ and combining the genius of lord aitkin’s principled decisions motivated by a desire to achieve justice, it may be time to contemporise the characteristics of the ‘reasonable person’ as the law would apply to the class of aboriginal defendants. at first glance the task may appear an impossible dream, but this article has demonstrated there is a growing body of case law196 pointing to the principle that like cases should be treated alike, but relevant differences should be treated differently.197 this breeds intellectual confidence to postulate a time when consolidation of relevant legal precepts and principles; when fernando principles’,198 anunga rules199 and case law persuading the precedence of individualised justice outcomes in bugmy200 and munda201 will take the generalities of aboriginal disadvantage, adapt the objective test to take into account aboriginal identity and crystalise it to craft a contemporary aboriginalised ‘reasonable person’. sentencing is an inherently individualised process which gives permission, as the cases show, to consideration of the generalities of aboriginal disadvantage as applied to the particular aboriginal offender before the court. by letting go of ‘the intellectual tradition of defining a legal standard by reference to a hypothetical person’202 and contemporising the reasonable person manifesting aboriginal identity, sentencing processes gain to move closer to the aristotelian formal equality, enhancing individualised justice and achieving equal justice. 3. conclusion this article has explored the aristotelian question of formal equality in achieving equal justice in sentencing outcomes for aboriginal defendants and the relevance of contemporising the reasonable person test, clothed in aboriginal identity. this reimagined reasonable person would speak to the values of kinship and cultural obligations, understand social deprivation and exclusion and its consequences and 194 ibid. 195 donoghue v stevenson, loc.cit. 196 see r v hughes, loc.cit; r v rigney-brown, loc.cit. 197 rothman am, loc.cit. 198 r v fernando, loc.cit. 199 r v anunga, loc.cit. 200 bugmy v the queen, loc.cit. 201 munda v western australia, loc.cit. 202 hall v. brooklands auto-racing club (1933) 1 kb 205. the reasonable person for our time for reasonableness in a heterogeneous society ceilia divakaran udayana journal of law and culture vol. 01 no.2, july 2017 93 acknowledge that, in some instances, the defendant’s obedience to aboriginal law203 may cause transgression under australian law. there may be a case that the nature of this aboriginality could be a mitigatory factor for diminished moral culpability and criminal responsibility in an objective test for provocation, particularly where the defendant has a history of petrol sniffing or a disability from the effects of foetal alcohol spectrum disorder. the case prosecuted in this paper in respect of consideration of the ‘reasonable person’ in heterogeneous australian society and the australian aboriginal context may also serve well the characteristics of minorities in other world societies. this proposition is an early attempt for a legal construction of the contemporary aboriginalised ‘reasonable person’ and it seeks to invite others to contribute to developing the notion, rather than seeking others to adopt it. 203 aboriginal law is tjukurpa for the pitjantjatjara people of nw south australia and yolngu lore for the people of arnhem land. 94 bibliography book smith, j. and b. hogan. criminal law. london: butterworths. 1996 journal anthony, thalia, lorana bartells and anthony hopkins. “lessons lost in sentencing: welding individualised justice to indigenous justice.” melbourne university law review 16 (2015).http://www5.austlii.edu.au/au/journals/ melbulawrw/2015/16.html applegarth, p d t. “lord aitkin: principle and progress”. the australian law journal 90 no. 10 (2016) http://sites.thomsonreuters.com.au/journals/files/2016/10/ alj-vol-90-no-10-contents-final.pdf burke, alafair s. “rational actors, self defense and duress: making sense not syndromes out of the battered woman”. north carolina law review 81 (2002): 211-316.http://scholarlycommons.law.hofstra.edu/faculty_scholarship/165 christie, sarah. “provocation-pushing the reasonable man too far?”, journal of criminal law 64, no. 4 (2000): 409-415, https://doi.org/10.1177/002201830006400410. chroust, antonhermann and david l osborn. “aristotle’s conception of justice.”notre dame law review 17, no. 2 (1942): 129-143. http://scholarship. law.nd.edu/ndlr/vol17/iss2/2 edney, richard. “the retreat from fernando and the erasure of indigenous identity in sentencing,” indigenous law bulletin 6 no.17 (2006): 8. http://www.austlii. edu.au/au/journals/indiglawb/2006/11.html gardner, john. “the mysterious case of the reasonable person.” university of toronto law journal 51, (2001): 273-308. https://ssrn.com/abstract=1397115 israel, mark. “ethnic bias in jury selection in australia and new zealand.” international journal of the sociology of law 26, no. 1 (1998): 35-54. https://doi.org/10.1006/ ijsl.1998.0057 nourse, victoria. “after the reasonable man: getting over the subjectivity/objectivity question.” new criminal law review: in international and interdisciplinary journal 11, no. 1 (2008): 33-50. http://doi.org/10.1525/nclr.2008.11.1.33 the reasonable person for our time for reasonableness in a heterogeneous society ceilia divakaran udayana journal of law and culture vol. 01 no.2, july 2017 95 riley, trevor. “aborigines and the court: the northern territory experience.” northern territory law journal 2, no. 4 (2012): 215-226.http://sites.thomsonreuters. com.au/journals/files/2012/09/nthn-territory-law-jnl-vol-2-no-4-sep2012.pdf “taking indigenous over-imprisonment seriously: time for concrete solutions not more good intentions”.editorial.criminal law journal 39 no.5 (2015). http:// sites.thomsonreuters.com.au/journals/files/2015/10/crim-lj-vol-39-no-5contents.pdf legal document autralian criminal code international covenant on civil and political rights united kingdom homicide act 1957 other document aboriginal and torres strait islander social justice commissioner reports.bringing them home report on stolen generations.may 1997 australian law reform commission report on aboriginal customary law report 31.https://www.alrc.gov.au/sites/default/files/pdfs/publications/alrc31.pdf charles, christopher. the law of sentencing applied to aboriginal people in south australia. http://aija.org.au/ind%20courts%20conf%2013/papers/charles.pdf. doussa j, von. launch of the supreme court equal treatment benchbook. speech delivered at banco court supreme court of queensland on 15 february 2006. https://www.humanrights.gov.au/news/speeches/launch-supreme-courtequal-treatment-benchbook martin ac, wayne. access to justice in multicultural australia. judicial council on cultural diversity, cultural diversity and law conference on 13 march 2015. http://www.supremecourt.wa.gov.au/_files/speeches_cultural%20diversity%20and%20the%20law%20conference%20-%20access%20to%20justice%20in%20multural%20australia%20by%20the%20hon%20wayne%20 martin%20ac,%20chief%20justice%20of%20western%20australia.pdf. multiculturalism and the law, australian law reform commission alrc 1992 no. 57.http://www.austlii.edu.au/au/other/lawreform/alrc/1992/57.html#8> norris qc, stephen. sentencing aboriginal offenders –not enough ‘judicial notice’?. judicial conference of australia colloquium in sydney on 13 october 2013. 96 rothman am, stephen. the impact of bugmy and munda on sentencing aboriginal and other offenders. paper delivered at the ngarayura committee twilight seminar on 25 february 2014, <http://www.supremecourt.justice.nsw.gov. au/documents/publications/speeches/pre-2015%20speeches/rothman/ rothman%2025%20feb%202014.pdf>. royal commission into aboriginal deaths in custody national report.may 1991. http://www.austlii.edu.au/au/other/indiglres/rciadic/#national case law bugmy v the queen [2013] hca 37 davis contractors ltd v fareham urban district council [1956] ac 696. donoghue v stevenson [1932] ac 562 fernando (1992) 76 a crim r 50 hall v. brooklands auto-racing club (1933) 1 kb 205 healthcare at home limited v the common services agency (scotland) [2014] wlr(d) 351 houghagen v charra (1989) 50 sasr 419 kable v dpp (1995) 38 nswlr 374 leech v peters (1988) 40 a crim r 350 lindsay v the queen [2015] hca 16 masciantonio v r [1991] hca 22 munda v western australia [2013] hca 38 neal v the queen 149 clr 305 at 326 new south wales v hill (no 5)[2013] nswsc 140 people v goetz 497 n.e.2d 41 n.y. 1986 r v anunga(1976) 11 alr 412 r v ceissman(2001) nswcca 73 r v clarke [2013] nswcca 260 r v fernando (1992) 76 australian criminal reports 58 the reasonable person for our time for reasonableness in a heterogeneous society ceilia divakaran udayana journal of law and culture vol. 01 no.2, july 2017 97 r v gj (2005) 16 ntlr 230 at 30 r v gladue[1999]1 scr 688 r v grose (2014) 114 sasr 92 r v ipeelee[2012] 1 scr 433 r v pitt( 2001) nswcca 156 r v hughes; r v rigney-brown [2016] sascfc 126 (2 december2016) regina (director of public prosecutions) v camplin[1978] 2 all er 168 reg. v. hill (1986) 1 scr 313 regina v smith (morgan james) hl 27 jul 2000 state v norman 378 s.e.2d 8, 10 n.c. 1989 stingle v r [1990] hca 61 wong v the queen [2001] hca 64 website content/internet australian institute of criminology. ”indigenous justice in focus, australian institute of criminology 5 may 2015.” http://www.aic.gov.au/crime_types/ in_focus/indigenousjustice.html dowdell, andrew. “supreme court chief justice chris kourakis hits out at south australian indigenous toll”. http://www.adelaidenow.com.au/news/southaustralia/supreme-court-chief-justice-chris-kourakis-hits-out-at-south-australia-indigneous-jail-toll/news-story/7c47494e368a5f7d526c60eb5175dd97 french ac, robert. “equal justice and cultural diversity: the general meets the particular”. http://www.hcourt.gov.au/assets/publications/speeches/ current-justices/frenchcj/frenchcj14mar15.pdf moran, mayo. “rethinking the reasonable person-an egalitarian reconstruction of the objective standard”.http://www.oxfordscholarship.com/view/10.1093/ acprof:oso/9780199247820.001.0001/acprof-9780199247820 “summary of r v gladue by the scc in the ipeelee case”.http://www.gladueprinciples. ca/downloads/ipeelee-gladue-summary.pdf udayana journal of law and culture vol. 01 no.2, july 2017 121 regulating indigenous culture as a tourism economic resource made suksma prijandhini devi salain* faculty of law udayana university, bali, indonesia david isles** charles darwin university school of law, darwin, australia i gusti ngurah wairocana*** faculty of law udayana university, bali, indonesia 1. introduction 1.1. background the actual case occurring in the ulun danu beratan1 tourist destination area, tabanan, bali-indonesia, is shocking to the tourism actors. it was in july 2017 when tens of people wearing traditional customs suddenly put up banners containing statements regarding the temporary closure of ulun danu beratan temple. for years, * correspondence: suksmadevi@gmail.com. ** correspondence: zzdisles@netscape.net. *** correspondence: wairocanangurah@yahoo.co.id. 1 ulun danu beratan is one of the famous temples which is located in bedugul-bali. it is an example of a place for praying that is also cultural tourism destination. the way of indigenous people praying in the temple is a part of the local culture while also being a tourism attraction. the indigenous people around the ulun danu beratan temple, as the owners of the temple and traditions practiced there, were seen to not be getting an appropriate benefit from tourist activities. abstract there have been some cases indicating the dissatisfaction of traditional communities with regards to tourism that does not economically contribute to their cultural activities. the legal issue raised in this writing the lack of, or maybe the abstention of, a regulation that specifically regulates indigenous culture as a tourism economic resource. this article is aimed at describing and analyzing relevant international and national instruments that regulate the issues of indigenous culture and economic activities of tourism. the cases of indonesia, especially bali, compared with australia are the focus of this article. it has been found that indonesian laws and regulations are insufficient to protect culture as a tourism economic resource. in contrast, australia has adopted a trichotomous approach wherein economic, social and cultural factors are separate and can be managed separately, an approach that has had mixed results. keywords: indigenous people, culture, economic resource, tourism, law. how to cite: devi salain, made suksma prijandhini, david isles, and i gusti ngurah wairocana. 2017. “regulating indigenous culture as a tourism economic resource”. udayana journal of law and culture 1 (2): 121-140. doi:10.24843/ujlc.2017.v01.i02.p03. doi: https://doi.org/10.24843/ujlc.2017.v01.i02.p03 copyright © 2017 ujlc. all right reserved vol. 01, no. 2, july 2017, 121-140 122 the temple and its surrounding area had been designated as a tourist destination. some people believe that this problem arose because of the unclear profit-sharing in the internal management of the temple.2 a mediation process was carried out in the office of the tourism destination before officers of the civil service police unit, accompanied by local police personnel, then withdrew the banners.3 the abovementioned case is one example of the other problems arisen related to the impact of tourism on host communities in bali. research also discovered unpleasant relations that have occurred with regards to profit sharing in some temples in bali where the locations are integrated with tourism destinations.4 the finding shows that the policy-making process and inequity of roles and profit distributions between the stakeholders have initiated the long-lasting conflict.5 it should be acknowledged that there is a cost to maintain cultural life in bali. it has been estimated that hindu peoples in bali spend about idr. 600.000.000.000 per month just for the daily ceremonial activities required to maintain their cultural life.6 the traditional community, as the owner of the culture, does not seem to get benefits from the use of the culture as they flow only to the government and the private sector.7 those conditions are caused by the lack of an economic relationship between the traditional community, the government, and the private sector.8 the traditional community has, for centuries, organized in a desa pakraman as a unit of the traditional community which follows hindu traditions, and has a social structure through the kahyangan tiga bond, its own territory, and properties. this desa pakraman also has the right to self-regulation as long as any regulations are not contrary to the indonesian constitution.9 the term desa in bahasa indonesia can be translated into the village. for balinese peoples, this term can be associated with two meanings. first, desa dinas, a village that has unity of government administration 2 http://bali.tribunnews.com/2017/07/26/ini-alasan-pura-ulun-danu-beratan-ditutup-puluhan-orang-berpakaian-adat. 3 http://www.jawapos.com/radarbali/read/2017/07/26/3807/gawat-objek-wisata-danau-beratandisegel-warga. 4 i nengah subadra, i wayan arta artana, i made bayu wisnawa, “pura di tanah lot: konflik di obyek dan daya tarik wisata global,” jurnal perhotelan dan pariwisata 6, no. 1 (2016): 60-61. doi: https://subadra.files.wordpress.com/2016/10/i-nengah-subadra-jurnal-2016-pura-tanah-lot-konflik-diobyek-dan-daya-tarik-wisata-global.pdf. 5 ibid., 1. 6 see i.b. wyasa putra, “a contra-productive impact of indonesian new legislation on administrative village against indonesian indigenous culture as an economic resources,” international conference on access to justice for indigenous peoples, malaya: faculty of law university of malaya, 2015. 2-3 and made suksma prijandhini devi salain, perlindungan hukum terhadap bali sebagai sumber daya ekonomi pariwisata, kertha patrika 39, no. 1 (2017): 1-15 https://ojs.unud.ac.id/index.php/kerthapatrika/article/ view/32705 7 ibid. 8 ibid. 9 i nyoman sirtha, aspek hukum dalam konflik adat bali (denpasar: udayana university press, 2008), 1 and see indonesian village act no. 6 year 2014 and indonesian local government act no. 23 year 2014. regulating indigenous culture as a tourism economic resource made suksma prijandhini devi salain, david isles, and i gusti ngurah wairocana udayana journal of law and culture vol. 01 no.2, july 2017 123 territory. secondly, desa adat or desa pakraman, a unity territory of the indigenous people (balinese society).10 due to relatively autonomous governance and strong community identification, some desa pakraman, for example, penglipuran village11 are able to organize their cultural activities as a tourist attraction and as a result, return a benefit to the village itself. vice chairman of the regional house of representatives of the bangliregency assessed that the management of existing tourist destinations in bangli regency, including penglipuran village, has not been maximized. he emphasized that customary villages must be granted an involved role by the local government.12 the above example cannot be broadly generalized as it has not happened in all desa pakraman in bali. in kuta, for example,13 only a few tourists like to watch the balinese traditional dance performances as it seems tourists in that area prefer to enjoy the night entertainment. there are also some other villages that have been changing from the cultural tourism destinations into more mainstreamed global tourism. that change maybe assumed to decrease the source of income for the traditional community, because there is less economic benefit derived from balinese culture. the situation in bali-indonesia may be compared to its neighbouring country, australia, a continent where indigenous people called aborigines, or indigenous australians, are living. in australia, aboriginal cultural products are broadly spread across numerous facilities and activities, such as cultural tours with guides, art centers, art performances, art galleries, monuments, sites of heritage and also the opportunity to come to see the real life of aborigines. the content of aboriginal culture is related to their beliefs (totemism), relationships between them, the way of life (how to get and prepare food), trading systems, ceremonial activities (art, dance, and music) and their herbal medicines.14 contrasted with the balinese, whom are the majority population in bali, aborigines are now a small proportion of the australian population. the balinese daily life is part of the culture and is also utilized as the core of tourism in bali, which has made bali 10 see i ketut sudantra, 2007, pelaksanaan fungsi hakim perdamaian desa dalam kondisi dualisme pemerintahan desa di bali, thesis, s2 ilmu hukum program pasca sarjana universitas udayana, 43-52; see also article 6 (1) of act no. 6 year 201 concerning village: “village comprises desa/desa dinas and desa adat”. 11 penglipuran village is a traditional village which is located in bangli. the term of “penglipuran” is originated from “pengeling pura” that means always remember to the temple, the god and the ancestor. the infrastructure of the penglipuran is far away from modernization. all of the houses in the penglipuran have a same architecture and room layout. they have a unique tradition, such as they are sleeping in the kitchen. as we know, kitchen is a place to cook some food. they are maintaining those conditions in order to keep their traditions and still being the tourism attraction at one. 12 http://www.balipost.com/news/2017/04/30/7149/wajib-libatkan-desa-adat-dalam.html. 13 kuta is a famous place that located in badung regency. a lot of tourists especially the youth tourist love to stay and enjoy the entertainment at kuta. 14 kirstie lowe and stephen ollerenshaw, “cultural tourism development program an introduction to the tourism industry and business development,” http://www.environment.nsw.gov.au/resources/ parksecopass/ctdprogram.pdf, 9-15. 124 as a worldwide cultural tourism destination. as far as it is concerned, the aboriginal culture has not yet been progressively developed as a core element of australian tourism. based on data from new south wales destination by year-end in december 2016, only 9.5% of foreign tourists visited aboriginal sites or communities, and just 8.5% attended aboriginal cultural performances.15 a lot of tourists come to australia to visit the more remote natural environments and provide an explanation of the places including the wildlife, such as great barrier reef, uluru/ayers rock, kakadu national park, the whitsunday islands, the blue mountains national park, or the purnululu national park. thus, australia is known as an ecotourism destination.16 1.2. legal issues and purpose of writing economics and tourism studies seem to believe that tourism is an effective tool to stimulate the economy of a country or region. further, tourism may also affect tourism poverty in direct, indirect, or dynamic pathways.17 the concept of indigenous culture that is discussed in this article is hadjionnou’s much looked at description that defines it as the core body of beliefs, knowledge, traditions and way of life that is passed on from generation to generation in indigenous communities that forms an integral part of the lives of indigenous peoples and are manifested in the form of ancestor worship, religious or spiritual ceremonies, oral traditions and rituals which have been passed down through the generations.18 the fundamental legal issue in this article is the lack of, or maybe abstention of, laws and regulations that specifically regulate indigenous culture as a tourism economic resource. it will primarily look at the example of indonesia, especially bali, and at australia’s concern in protecting their indigenous culture. thus, this article is aimed to describe and analyze instruments that regulate the issue of indigenous culture and economic activities of tourism. these include relevant international instruments, indonesian law and regulations (including local regulation of bali province), and some australian laws as a comparison. 15 new south wales destination, “cultural and heritage tourism to nsw year ended december 2016,” https://www.destinationnsw.com.au/wp-content/uploads/2013/05/cultural-and-heritage-tourismto-nsw-snapshot-ye-dec-2016.pdf 16 top 10 tourist attractions in australia, www.touropia.com/tourist-attractions-in-australia/ the ecotourism has some elements i.e.: offer a direct experience; sighting to the natural places, educate the tourists about the places including how to protect; conserve in order to diminish the negative impact to the environment and the ecotourism itself should give the benefits to the local economy. 17 caroline ashley, peter de drine, amy lehr, and hannah wilde, “the role of the tourism sector in expanding economic opportunity,” corporate social responsibility initative report, no. 23, cambridge, ma: kennedy school of government, harvard university, (2007): 8-9. https://pdfs.semanticscholar.org/c9 bf/52b9103069edcf80a8d669dde0d5c28b1853.pdf. 18 amanda barratt and ashimizo afadameh-adeyemi, “indigenous peoples and the right to culture: the potential significance for african indigenous communities of the committee on economic, social and cultural rights’ general comment 21,” african human rights law journal 11, no. 2 (2011): 565. see also the meaning of ‘culture’ that is used in the specific context of (aboriginal) traditional indigenous cultures and their persistence within a ‘mainstream’ culture in simon colquhoun and alfred michael dockery, “the link between indigenous culture and wellbeing: qualitative evidence for australian aboriginal peoples”, clmr discussion paper series 01, (2012):3. http://ceebi.curtin.edu.au/local/ docs/2012.01_lsic_qualitative_clmr1.pdf. regulating indigenous culture as a tourism economic resource made suksma prijandhini devi salain, david isles, and i gusti ngurah wairocana udayana journal of law and culture vol. 01 no.2, july 2017 125 1.3. research methodology and article outline this article is a normative research paper that analyses and interprets the relevant rules, explains the areas that should be reformed and predicts the possibility to create future laws.19 the analysis is focused on primary sources of law contained in international instruments and statutes (acts and local regulations), as well as secondary sources (the concept of laws that provided in journals, books, and the internet).20 perspectives in this writing are enriched by statute, comparative, and fact-based approaches. it should be acknowledged that this article further develops joint research21 and previous publication,22 that has been rewritten. this version adds some relevant facts and analysis of relevant international instruments. the outline of this article is construed as follows. first, the introduction section will describe the reason why the indigenous culture international instruments and relevant indonesian and australian laws and regulations. afterward, it is continued to interpret and elaborate on those international instruments and domestic regulations in order to check the sufficiency of the recognition and protection of the indigenous culture as a tourism economic resource. subsequently, this section will provide the appropriate approach to make a new policy in indonesia to maintain the sustainability of indigenous cultures. finally, the article will make conclusions and recommendations based on the aforementioned analysis. 2. result and discussion 2.1. international instruments that recognizes the rights of indigenous peoples there are several international instruments that relate to the indigenous people and their culture. for example, both indonesia and australia derive some of their domestic laws pertaining to indigenous peoples from international instruments. both countries have also ratified the international covenant on economic, social and cultural rights 1966 (icescr)23 and endorsed the united nations declaration on the rights of indigenous peoples 2007 (undrip).24 the state parties of the icescr shall guarantee that the rights (economic, social, cultural) under the covenant will be 19 soerjono soekanto and sri mamudji, penelitian hukum normatif: suatu tinjauan singkat (jakarta: raja grafindo persada, 2001), 2-6 in depri liber sonata, “metode penelitian hukum normatif dan empiris: karakteristik khas dari metode meneliti hukum”, fiat justisia jurnal ilmu hukum 8, no.1 (2014): 25 https://doi.org/10.25041/fiatjustisia.v8no1.283 and see terry hutchinson, researching and writing in law, (sydney: lawbook co., 2002), 9. 20 laire de marco, “legal research strategy,” http://guides.library.harvard.edu/law/researchstrategy/primarysources and i made pasek diantha, metodologi penelitian hukum normatif dalam justifikasi teori hukum, (jakarta: prenada media group, 2016), 149-151. 21 previous research carried out by first and second authors, supervised by ida bagus wyasa putra, december 2015. 22 salain, loc.cit. 23 indonesia ratified the icescr on 23 february 2006 24 australia endorsed the declaration in 2009. 126 enjoyed by their citizens under the-discrimination principle.25 especially for cultural rights, it should be recognized that everyone has the right to participate in cultural life and get the benefits from it.26 the terminology of ‘everyone’ means that every individual, including indigenous peoples. thus, the international community recognizes the existence of the indigenous people and the indigenous people themselves as the owner of the indigenous culture and have the right to participate in cultural sustainability and enjoy the benefits. cultural sustainability and cultural benefits are interrelated. from the benefits, the indigenous people can maintain the cultural sustainability and if the culture is constantly sustainable, it will give benefits. the undrip is not a binding instrument but it shows the commitment of the united nations members to recognize and protect the rights of the indigenous people all over the world. same as the universal declaration of human rights (udhr) 1948, in the beginning, it is a declaration but eventually will become a basic norm for all human rights instruments (internationally and nationally). referring to article 3 of the undrip, “the indigenous people have the right to self-determination.” article 3 means they are free to determine their cultural development. this includes the right to practice, revitalize, maintain, protect and develop the past, present and future variety of their cultural traditions and customs.27 it should be noted that the participation of different indigenous peoples in the united nations open-ended working group during the creation of undrip is one example of utilizing the indigenous peoples’s approach. as analyzed by brenda l. gunn, such active participation in the drafting and negotiation process enabled various indigenous peoples to articulate their rights in a way that is meaningful to them.28 in addition to the icescr and undrip, the international labour organisation (ilo) convention on indigenous and tribal populations 1957 (no. 107)29 and the ilo convention on indigenous and tribal peoples 1989 (no. 169), although not ratified, indicate how the international community views the economic, social, cultural rights and status of indigenous peoples. it is often the principles espoused in these instruments that have been implemented in domestic laws. with regards to the concern that culture is one of the tourism elements, both the global code of ethics for tourism (gcet) and general agreement on trade in services (gats) are international instruments that should be read. gcet is used as a frame to minimize the negative effect on tourism development and maximize 25 icescr, article 2 paragraf 2. 26 ibid., article 15 paragraf 1. 27 undrip, article 11. 28 brenda l. gunn, “protecting indigenous peoples’ lands: making room for the application of indigenous peoples’ laws within the canadian legal system,” indigenous law journal 6, issue 1, (2007): 59-60, http://ilj.law.utoronto.ca/sites/ilj.law.utoronto.ca/files/media/ilj-6.1-gunn.pdf. 29 this conventions was a first attempt to codify international obligations of states in respect indigenous and tribal populations. regulating indigenous culture as a tourism economic resource made suksma prijandhini devi salain, david isles, and i gusti ngurah wairocana udayana journal of law and culture vol. 01 no.2, july 2017 127 the benefits from it to reduce poverty. this code contains nine (9) principles of tourism sustainable development which are already implemented by seventy percent (70%) of the united nations members into their national laws.30 based on article 4 of the gcet, tourism has two roles – as a user of the culture and as a contributor to its development. tourism activities should give benefits to the host countries and communities (including the indigenous people) as the owners of the culture.31 this shows that tourism has a relationship with culture. another international instrument that is simultaneously related to tourism and culture is gats that was enacted by the world trade organization (wto) to arrange international services trading. gats has a different concept to the gcet. on one hand, gcet upholds the sustainable development concept for tourism while on the other hand gats uses the trading concept in managing tourism. when tourism is considered as a part of services trading systems, there are economic resources to support the implementation of the tourism itself. economic resources are factors which could be used to produce goods and services in order to gain a benefit. there are also human resources (the ability of entrepreneurial, management, labor) and non-human resources as economic resources (capital in goods and financial, land, technology).32 in relation to tourism as a part of services trading systems, the indigenous balinese culture is a human economic resource (as the owner of the indigenous balinese culture) and non-human economic resource (the traditions; the ceremonies). the economic resource is the fundamental elements of the tourism because without it the tourism will collapse. it is fact that every wto member has different economic resources for their tourism. thus, the recognition and protection of the economic resources into an appropriate regulation are definitely needed. 2.2. indonesia regulations33 in indonesia, culture is an economic resource for tourism, but unfortunately, there is no specific regulation that covers the issue.as far as it is concerned, some substantial and partial rules contained in regulations related to the indigenous peoples and their culture. the most significant law is the 1945 constitution of the republic of indonesia that recognizes and respects the customary law of traditional 30 general assembly of the united nations, a/65/275, sixty-fifth session, item 20 of the provisional agenda, “sustainable development, implementation of the global code of ethics for tourism”, 10 august 2010, http://cf.cdn.unwto.org/sites/all/files/pdf/item_7a.pdf. 31 gcet, article 5. 32 this conventions was a first attempt to codify international obligations of states in respect indigenous and tribal populations. 33 see also some analysis in this part in putri triari dwijayanthi, kali watson, ni gusti ayu dyah satyawati, “indigenous people, economic development and sustainable tourism: a comparative analysis between bali, indonesia and australia,” udayana journal of law and culture [s.l.] 1, no. 1 (2017): 1920, https://doi.org/10.24843/ujlc.2017.v01.i01.p02 and made suksma prijandhini devi salain, op. cit, 5-8. 128 communities and their traditional rights.34 the indigenous people also have civil, political, economic, social, and cultural rights as stipulated in article 28 c (1)35, article 28 i (3)36 and article 32 of the indonesian constitution.37 these protections mean that all indigenous peoples in indonesia could maintain, develop and enjoy the benefits of their culture. case law proved that the indigenous people in indonesia have legal standing before the court. for example, the constitutional court of indonesia issued judgments regarding the forest right of the indigenous people (kenegerian kuntu) in kampar region–riau province and the indigenous people (kasepuhan cisitu) in lebak region–banten province.38 the second instrument is the indonesian human rights act no. 39 year 1999. article 6 of this act stipulate as follows: (1) “in the interests of upholding human rights, the differences and needs of indigenous peoples must be taken into consideration and protected by the law, the public and the government; (2) the cultural identity of indigenous peoples, including indigenous land rights, must be upheld, in accordance with the development of the times.” the act gives protection to the differences and needs of indigenous peoples including the cultural identity and indigenous land rights on the basis of human rights. if an individual, group of peoples or stakeholders do not respect and protect the existence of the indigenous peoples then they could breach these human rights. the third piece of legislation is the indonesian village act no. 6 year 2014. in article 103 (3) (c) it holds that “the authority of desa adat based on origin rights are…..preservation of the social culture values…..”. as further regulated, the authority at least consists of: the organizational system of the indigenous people, community 34 it reflected in article 18 b (2) : “the state shall recognize and respect customary law (hukum adat) community units along with their traditional rights insofar as they are still in existence and are in conformity with the development of society and the principle of the unitary state of the republic of indonesia, as regulated by law”. 35 every person shall have the right to develop him/herself through the fulfillment of their basic needs, shall have the right to obtain education and to enjoy the benefits of science and technology, arts and culture, for the enhancement of the quality of their life and for the welfare of the humankind. 36 the cultural identity and the rights of traditional communities shall be respected in conformity with the development of time and civilization 37 the state shall advance the national culture of indonesia amidst world civilization by guaranteeing freedom to the society in preserving and developing its cultural values. 38 see indonesia constitutional court decision no. 35/puu-x/2012.. in this case, the aliansi masyarakat adat nusantara (aman), the indigenous people of kenegerian kuntu and kasepuhan cisitu act as the complainant. they brought the case before the constitutional court in accordance to examine the substance of the forestry act no. 41 year 1999 against the indonesian constitution. this case begins when the government used the forest act to confiscate the right of the indigenous people of the indigenous forest territorial as the state forest. the government gave license to the investor in exploring; exploiting the natural resources of the forest without respecting the indigenous people local wisdoms. those situations induced conflict between the indigenous people and the investors. see also article 51 (1) of the constitutional court act no. 24 year 2003 juncto article 3 of the constitutional court regulations no. 06/pmk/2005 concerning the guideline of the judicial review procedures: “the complainant are: (a) individual (indonesia nationality); (b) the indigenous people; (c) corporation (public and private); (c) state organs”. regulating indigenous culture as a tourism economic resource made suksma prijandhini devi salain, david isles, and i gusti ngurah wairocana udayana journal of law and culture vol. 01 no.2, july 2017 129 institutional development, institution and adat law development, management of the land owned by the village and development of the indigenous people’s role.39 referring to those articles, desa adat has the right to preserve their culture through their institution which involves the indigenous people as the owner of the indigenous culture. the indonesian tourism act no. 10 year 2009 empasizes that culture is one of the tourism development pillars, but it does not recognize and protect culture as a tourism economic resource.40 according to article 1 (5) of the indonesia tourism act juncto article 1 paragraph 8 of the government regulation no. 50 year 2011 concerning master plan of national tourism development year 2010 – 2025: “tourism attraction power is all matters having uniqueness, beauty, and value in the form of various natural wealth, culture, and the man-made product as the target or objective of the tourists visit.” the culture one of the drivers of tourist attraction to indonesia. as a driver of tourist attraction, the indigenous peoples could take apart maintaining and developing their culture.41 the development of culture is based on indonesian tourism principles with due observance of the diversity, uniqueness and typical culture and nature, and the human needs for tourism.42 in contrast, the indonesian culture heritage act no. 11 year 2010 treats culture as a sign of human civilization. at the provincial level, regulation of bali province no. 3 year 2001 concerning desa pakraman should be considered. the consideration part of this regulation makes clear that desa pakraman, as the unity of the indigenous people which is imbued with hinduism and balinese cultural values, plays a big role in religion and social culture. thus, desa pakraman needs to be protected, preserved and empowered. the existence of desa pakraman is recognized and protected by the government and also given autonomic right to conduct and manage their existence because they have an important role in the development of their economy, society, and culture.43 in addition to autonomy rights, desa pakraman also has the following obligations under article 5 of this provinvial regulation:“(a) make a law (awig-awig); (b) regulate its citizen (krama desa); (c) manage the wealth of desa pakraman; (d) together with the government to conduct the development in all area especially in religion, culture and society; (e) develop the balinese culture values in order to enrich, conserve, maintain the national and region culture which is based on deliberation-consensus (paras-paros; sagilik-saguluk; salunglung-sabayantaka); (f) protect its citizen.” the regulation of bali province no. 2 year 2012 explicitly governs cultural tourism of bali. the objectives of balinese cultural tourism are to conserve balinese culture, which is imbued by hindu values, to increase economic growth, to increase 39 government regulation no. 47 year 2015 concerning the amendment of the government regulation no. 43 year 2014 on the implementing regulation of the village act no. 6 year 2014, article 34 (1). 40 indonesian tourism act, articles 1 (5) and (6). 41 ibid., article 5 (e). 42 ibid., article 6. 43 regulation of bali province concerning desa pakraman, consideration paragraph (b). 130 social welfare, to create employment, to conserve nature, the environment, and resources.44 from these objectives, the primary basis of the culture of bali tourism is culture itself. if the balinese culture is well maintained it would increase social welfare and create employment, which means culture has commercial and economic value. in fact, the cost of daily ceremonies that is spent by the balinese indigenous peoples to preserve the culture is not giving a direct economic benefit to them as the benefits mainly flow to the government and the private sector. it can be regarded that such an unjust situation is caused by the lack of regulation that determines culture as a tourism economic resource. 2.3. the case of australia the issue of the involvement of aborigines as australian indigenous peoples in tourism acts as a comparison to the balinese case. a long-time structural disadvantage experienced by aborigines led to a discussion on the value of preserving the aboriginal culture and protecting their indigenous rights.45 altman and finlayson studied how some factors may become important pre-requisites for successful and sustainable aboriginal participation in tourism, namely: aboriginal control, market realism for aboriginal participants, appropriate corporate structures, appropriate scale of enterprise, accommodation of cultural and social factors, educating the industry and consumers, and realistic subvention.46 they also conclude their analysis as follows:47 “the cultural sustainability of aboriginal participation will be largely dependent on aboriginal control of the extent and nature of such participation. it is imperative that any government initiatives for aboriginal participation recognize the fragility of the aboriginal cultural product so that undue pressure is not placed on aboriginal suppliers of cultural tourism to meet the needs of the tourism market. the sustainability of aboriginal cultural tourism will be largely dependent on an appropriately slow rate of development that can best be described as tourism realism” as discussed above much of the australian legislative framework for indigenous peoples is derived from international legal instruments. these principles are reflected in australian legislation through acts such as the aboriginal land rights (northern territory) act 1979 and native title act 1993 (cth). additionally, cases such 44 regulation of bali province no. 2 year 2012 concerning culture tourism of bali, article 3 juncto regulation of bali province no. 10 year 2015 concerning master plan of the bali province tourism development year 2015 – 2029, article 9. 45 see for example katharine booth and lisa ford, ross v chambers, 2016, assimilation law and policy in the northern territory, in aboriginal history vol. 40, (anu press and aboriginal history inc, 2016), 6. 46 jon altman and julie finlayson, “aborigines, tourism and sustainable development,” the journal of tourism studies 14, no. 1, (2003): 83 https://www.jcu.edu.au/__data/assets/pdf_file/0011/122204/ jcudev_012859.pdf 47 ibid., 89. regulating indigenous culture as a tourism economic resource made suksma prijandhini devi salain, david isles, and i gusti ngurah wairocana udayana journal of law and culture vol. 01 no.2, july 2017 131 as mabo48 and wik49 have provided the impetus for legislative responses to these changes in jurisprudence in relation to indigenous peoples in australia. an interesting juridical analysis on mabo case can be read in an article written by kent mcneil that discusses the consequence of the impairment of indigenous land rights through the creation of third-party interests by crown grant.50 mabo was a landmark case in which the high court boldly held that the denial of indigenous land rights by governments and judges after over two hundred years had been based upon the erroneous application of the common law.51 international instruments and australian law promote the protection of economic and social and cultural protection or development of indigenous peoples. however, no explanation of what these terms mean is given and, more importantly, no explanation of what these terms mean to the indigenous peoples is given. as the balinese are demonstrating, and equally relevantly to australia, an understanding of these terms is critical to determining fair and just outcomes for the peoples involved. australian approach has been, and still is, the trichotomy of economic and social and cultural factors, each with its own measure, whether those measures are financial or the intangible value of the human condition. this trichotomous approach translates easily to the hegemony in australia but perhaps loses efficacy when applied to the indigenous peoples; particularly with their spiritual connection to the land and community, which is more aligned with the balinese approach. while australia is one step ahead in managing the indigenous culture than indonesia, there is no clear explanation whether the aboriginal culture in australia is, or could be, recognized and protected as an economic resource. the tourism industry is about 3% of the australia national economy and it also helps to create opportunities for employment (8% of australia’s employment arises from tourism industry; over 900,000 people).52 for instance, the new south wales government, through the office of environment and heritage (oeh), gives the new south wales national parks and wildlife service (npws) the authority to conserve and protect the natural environment, aboriginal country, culture and heritage and the built heritage of new south wales.they are committed to promoting original tourism whilestill respecting the unique aboriginal tradition and developing a network of partnerships to support the tourism industry.53 the new south wales government is also in the process of creating a policy that will arrange the standards of how to treat aboriginal cultural heritage without decreasing its originality. before making a proper cultural 48 mabo v queensland [no 2] (1992) 175 clr 1. 49 the wik peoples v queensland (1996) 141 alr 129. 50 kent mcneil, “the vulnerability of indigenous land rights in australia and canada,” osgoode hall law journal 42.2 (2004): 271-301. http://digitalcommons.osgoode.yorku.ca/ohlj/vol42/iss2/3. 51 ibid., 273. 52 cultural tourism development program: an introduction to the tourism industry and business development, 15. 53 op.cit., 4. 132 tourism policy, the new south wales government is observing and learning tourism the cultural system itself. there are four mutually related elements in the tourism system that could not run separately, namely consumers54, travel experience55, holiday experience56 and marketing promotion.57 2.4. the sufficiency of indonesian law to protect the indigenous culture as an economic resource (the case of bali) in relation to the indonesian regulations above, indigenous people and cultural regulations are the primary pillars of tourism. the indigenous people, their rights, and desa adat are recognized and protected under the indonesian constitution 1945. the regulations of indigenous peoples are spreading into different legislation, such as the indonesian human rights act, the indonesian tourism act,58 the indonesian forestry act no. 18 year 2013, and the indonesian village act no. 6 year 2014. as previously discussed, there are some indonesian regulations that cover the issue of indigenous culture. the indonesian tourism act determines that one of the indonesian tourism objectives is to enhance the culture.59 the government and the private sector also have an obligation to maintain and develop the indigenous culture as a tourist attraction. however, those obligations are not clear enough in terms of what kind of maintenance and what kind of development they must do in conserving the indigenous culture itself.60 on the other side, the indigenous people could take a part maintaining, conserving and developing the culture, but the benefits only go to the government and the private sector. unfortunately, the four pillars of cultural development in bali apply to the government and the private sector rather than to the indigenous people as the owner of the indigenous culture. unfortunately, both the government and private sector do not seem to realize that indigenous culture significantly effects tourism.in this regard, local governments should identify which private sectors may become their partners in dealing with the balinese indigenous culture, for instance in implementing corporate social responsibility (csr) schemes.61 54 consumers are persons who might be in holidays, see ibid., 17. 55 travel experience is experience of the consumers when they are travelling to their destinations, ibid. 56 holiday experience is the consumers experience when they are enjoying their holiday in the destinations, ibid. 57 the good marketing promotion of tourism is based on research, development, situation and two ways communication with the consumers. it will increase the awareness of consumer needs and sales at once, ibid. 58 indonesian tourism act, article 5 (e): “tourisms shall be implemented based on the principles below: make efficient use of the local community. it means the local community or indigenous people have the rights to participate in maintain and develop the tourism”. 59 ibid., article 4 (f). 60 ibid., article 23 and 26: ”……the government and the private sectors are obliged to conserve the culture in properly as a national assets to attract tourists……” 61 according to article 74 paragraph 1 of the limited company act no. 40 year 2007, csr is mandatory for the limited company in indonesia. regulating indigenous culture as a tourism economic resource made suksma prijandhini devi salain, david isles, and i gusti ngurah wairocana udayana journal of law and culture vol. 01 no.2, july 2017 133 a csr calculation is based on the company income each year (percentage), and the output from the csr will be used for maintaining, managing or conserving the indigenous culture. a lesson-learned may be seen in the cultural commodification of some elements of culture, such as the system of belief and art, that occurred in bali.62 some villages in bali combined a unique religious-traditional ceremony of ngaben63 with a tourist event. one of the best examples may be seen in ubud village where the ubud village government jointly cooperates with the puri ubud to perform a royal cremation in performing this cultural event. a lot of domestic and foreign tourists come to see the ceremony as well as local and foreign television stations.64 it shows that ngaben, as one of the indigenous cultures,has successfully attracted tourists to come to ubud village and help the tourism industry grow. the way of life of the balinese indigenous peoples is their tradition. tourists come to bali for the balinese tradition. they are curious and love to watch the balinese ceremonies. thus, the balinese indigenous peoples must maintain and develop the balinese culture in order to keep it sustained. in other words, the balinese culture has an economic value for the balinese peoples. hindu families are not forced to spend their money to conduct the daily ceremonial activities, but that is a form of their religious practice as they incorporate their religion into their daily life. moreover, the balinese peoples (especially hindu peoples) have the tri hita karana philosophy, the three relationships between the individual and their god, between the individual and other individuals, and between the individual and the environment. they believe in that philosophy and must implement it in their daily life to keep bali in harmony. it may be argued that indonesian laws and regulations are not sufficient to protect the indigenous culture as they do not regard the culture as a tourism economic resource. conversely, in fact, the balinese tradition is a tourism economic resource. refers to that situation, there are difficulties defining culture. the indonesian tourism act does not define exactly what culture is. the definition of the subject of policy is one of the most fundamental elements of policy construction and analysis.65 62 see i made sendra, “komodifikasi informasi pariwisata budaya fungsi dan makna upacara memasuki usia dewasa di jepang dan bali: perspektif lintas budaya,” analisis pariwisata 13, no. 1 (2013): 46. https://fpar.unud.ac.id/ind/wp-content/uploads/2014/03/jurnal-pariwisata-vol.13-no.1-2013.pdf researchers in social and humanities disciplines use commodification theory to view the development of ngaben ceremony in bali. see for instance sociological theory of religion commodification in nengah bawa atmadja dan tuty maryati, geria pusat industri banten ngaben di bali perspektif sosiologi komodifikasi agama, kawistara 4, no. 2, (2014): 164. https://jurnal.ugm.ac.id/kawistara/article/view/5670/4624 63 ngaben is a balinese-hindu ceremony for the death body. generally, there aresome processess of ngaben, started from nyiramin (bath the death body), put the death body in a peculiar tool (it called wadah), take the death body to the cemetery, do the cremation, and take the ash of the cremation to the sea. 64 see http://www.greenerbali.com/ngaben.html. 65 akira iida. paradigm theory & policy making: reconfiguring the future, 1st edition, (japan: tutle publishing, 2004), 17. 134 the definition is considered as the very basic requirement for construction of the logical concept. the problem of definition is the fundamental problem of scientific work, particularly of those related to the development of concepts.66 that is why the definition of the culture shall be clear enough. in other words, there is an abstention of the norm that regulating culture as a tourism economic resource. it can be expected that the indonesian government will review the indonesian tourism act as well as government of bali province that will amend regulations no. 2 year 2012 and no. 10 year 2015, or even enact new legislation or local regulations that would define and regulate indigenous culture as an economic resource.67 such legislation or regulation should also contain the identification of the indigenous culture; the rights and obligations of the government, the private sector and the indigenous people towards the indigenous culture. those conditions could give justice, expediency and legal certainty to the indigenous peoples (including the balinese peoples) as the owner of their culture. it is contrary to the rechtsidee of the purposes of law as mentioned above by gustav radbruch.68 a good policy or regulation is made from the needs and the expectations of the communities the policy effects. as myres s. mc dougal stated in his policy-oriented theory, making a policy or decision must be start from the community process context, which community will respond to and receive the decision, what is the value of the decision and what are the community expectations.69 the appropriate method to know the community’s needs and expectations is a bottom-up approach. it must come up from the bottom (the community), not from the top (the government). according to the article 5 (e) of the indonesian tourism act, the bottom-up approach is explicitly recognized but the problem is the community (including the indigenous peoples) does not seem to be aware of it. even though the community is not aware of their participation in tourism, the indonesian government should be active to see and observe the phenomena of tourism related to the existence of culture as an economic resource. 3. conclusion the indigenous peoples of indonesia (the province of bali) and australia are facing similar issues in relation to the pressures that non-traditional factors are 66 i.b. wyasa putra, “indonesian tourism law: in search of law and regulations model,” 1 lex mercantoria journal of international trade and business law, (2013): 63. 67 see introduction part, 7, the indonesia constitutional court decision, loc.cit. a specific regulation is needed for the natural resource (in this case forest) which is owned by the indigenous people. the regulation will protect, utilize and manage the forest properly in order to give benefit and prosperity to the indigenous people as the owner and citizens around it. 68 theo hujbers, filsafat hukum dalam lintasan sejarah (yogyakarta: kanisius, 1993), 161-166. 69 see myres s. mcdougal, law as a process of decision: a policy-oriented approach to legal study (usa: yale law school scholarship resipotory, 1956), 56 and i.b. wyasa putra, teori hukum dengan orientasi kebijakan (policy-oriented theory of law): pemecahan problem konteks dalam proses legislasi indonesia, (denpasar: udayana university press, 2016), 107. regulating indigenous culture as a tourism economic resource made suksma prijandhini devi salain, david isles, and i gusti ngurah wairocana udayana journal of law and culture vol. 01 no.2, july 2017 135 placing on their traditional way of life and social systems. the international instruments to protect the indigenous people rights are the same for both nations, and both have implemented the principles with varying degrees of success. the people of bali have identified the notion of “culture as an economic tourism resource” and are seeking to amend the law to reflect the innate economic value of a culture. this principle aligns with the principle of tri hita karana and, as a people, they do not distinguish between economic and cultural value. unfortunately, the indonesian laws and regulations that relate to the indigenous people and their culture are not sufficient to protect the indigenous culture as an economic tourism resource. the indonesian tourism act does not contain the definition of culture, which has created a problem of definition. in contrast, the australian approach has been, and still is,a trichotomy of economic, social and cultural factors, each with its own measure, either financial or the intangible value of the human condition. the issue of protecting indigenous cultures is vexed and laden with misunderstandings. however, this only makes finding a workable and sustainable solution even more important. moving forward, the balinese people may derive some benefit from analyzing their cultural traditions and values using a paradigm that economic, social and cultural activities are, or can be, uniquely identified and, consequently, protected using the existing framework of regulation. thus, the indonesian government must review the indonesian tourism act or enact a specific act for the indigenous peoples and their culture which creates a clear and appropriate definition of culture, which is includes culture as an economic resource.especially in bali, the local government should draft a new local regulation to protect the indigenous culture itself.this regulation should contain the kinds of the balinese indigenous culture, and the rights and obligations of the government, the private sector, and the indigenous balinese people. the opposite may hold true for the australian context where the aboriginal culture is not the primary driver of its tourism. australia is recognized as an ecotourism destination, but the new south wales government is creating a cultural tourism development program to increase the tourism industry (including the aboriginal culture). thus, even though the aboriginal culture is not the primary source of australian tourism and there is no law which defines aboriginal culture as one of australia’s economic resources, the new south wales government in the process of making an appropriate policy to maintain the aboriginal culture. this is a complex area of jurisprudence, due to the complexity of the subject matter, and the inherent, and often-unknown, effect that the commentator’s own 136 culture brings to any observation. it is also from this complexity that new solutions may grow as understanding of alternative paradigms develops. bibliography book booth, katharine, and lisa ford. “ross v chambers: assimilation law and policy in the northern territory.” aboriginal history 40 (2016): 3-25. hujbers, theo. filsafat hukum dalam lintasan sejarah. yogyakarta: kanisius, 1993. hutchinson, terry. researching and writing in law. sydney: lawbook co., 2002. iida, akira. paradigm theory & policy making: reconfiguring the future, 1st edition. japan: tuttle publishing, 2004. mcdougal, myres s. law as a process of decision: a policy-oriented approach to legal study. usa: yale law school scholarship resipotory, 1956. pasek diantha, i made. metodologi penelitian hukum normatif dalam justifikasi teori hukum. jakarta: prenada media group, 2016. sirtha, i nyoman. aspek hukum dalam konflik adat bali. denpasar: udayana university press, 2008 soekanto, soerjono and sri mamudji. penelitian hukum normatif: suatu tinjauan singkat. jakarta: raja grafindo persada, 2001. putra, i.b. wyasa. teori hukum dengan orientasi kebijakan (policy-oriented theory of law): pemecahan problem konteks dalam proses legislasi indonesia. denpasar: udayana university press, 2016. journal altman, jon and julie finlayson. “aborigines, tourism and sustainable development.” the journal of tourism studies 14, no. 1, (2003): 78-91 https://www.jcu.edu. au/__data/assets/pdf_file/0011/122204/jcudev_012859.pdf atmadja, nengah bawa and tuty maryati. “geria pusat industri banten ngaben di bali perspektif sosiologi komodifikasi agama.” jurnal kawistara 4, no. 2 (2014): 162-176. https://doi.org/10.22146/kawistara.5670 barratt, amanda, and ashimizo afadameh-adeyemi. “indigenous peoples and the right to culture: the potential significance for african indigenous communities of the committee on economic, social and cultural rights’ general comment regulating indigenous culture as a tourism economic resource made suksma prijandhini devi salain, david isles, and i gusti ngurah wairocana udayana journal of law and culture vol. 01 no.2, july 2017 137 21.” african human rights law journal 11, no. 2 (2011): 560-587. http://hdl. handle.net/10520/ejc51950 gunn, brenda l. “protecting indigenous peoples’ lands: making room for the application of indigenous peoples’ laws within the canadian legal system.” indigenous law journal 6, issue 1 (2007): 31-69. mcneil, kent. “the vulnerability of indigenous land rights in australia and canada.” osgoode hall law journal 42. no. 2 (2004): 271-301. http://digitalcommons. osgoode.yorku.ca/ohlj/vol42/iss2/3 salain, made suksma prijandhini devi. “perlindungan hukum terhadap kebudayaan bali sebagai sumber daya ekonomi pariwisata.” kertha patrika 39, no. 01 (2017): 1-15. https://doi.org/10.24843/kp.2017.v39.i01.p01 sendra, i made. “komodifikasi informasi pariwisata budaya fungsi dan makna upacara memasuki usia dewasa di jepang dan bali: perspektif lintas budaya.” analisis pariwisata 13, no. 1 (2013). sonata, depri liber. “metode penelitian hukum normatif dan empiris: karakteristik khas dari metode meneliti hukum.” jurnal fiat justisia 8, no. 1 (2014). https:// doi.org/10.25041/fiatjustisia.v8no1.283 subadra, i nengah, i wayan arta artana, i made bayu wisnawa. “pura di tanah lot: konflik di obyek dan daya tarik wisata global.” jurnal perhotelan dan pariwisata 6, no.1 (2016): 51-72. triari, putri, kali jones, and ni gusti ayu dyah satyawati. “indigenous people, economic development and sustainable tourism: a comparative analysis between bali, indonesia and australia.” udayana journal of law and culture 1, no. 1 (2017): 16-30. https://doi.org/10.24843/ujlc.2017.v01.i01.p02 putra, i.b. wyasa. “indonesian tourism law: in search of law and regulations model.” 1 lex mercatoria: journal of international trade and business law, (2013): 57. legal document universal declaration of human rights (udhr) 1948. international labour organisation (ilo) convention on indigenous and tribal 138 populations 1957 (no. 107). international covenant on economic, social and cultural rights (icescr) 1966. international labour organisation (ilo) convention on indigenous and tribal peoples 1989 (no. 169). general agreement on trade in services (gats) 1994. global code of ethics for tourism (gcet) 1999. united nations declaration on the rights of indigenous peoples (undrip) 2007 general assembly of the united nations, a/65/275, sixty-fifth session, item 20 of the provisional agenda, “sustainable development, implementation of the global code of ethics for tourism”, 10 august 2010, http://cf.cdn.unwto.org/ sites/all/files/pdf/item_7a.pdf indonesia constitutions 1945. indonesia constitutional court act no. 24 year 2003. indonesia limited company act no. 40 year 2007. indonesia tourism act no. 9 year 2010. indonesia formatting regulations act no. 12 year 2011. indonesia village act no. 6 year 2014. indonesia local government act no. 23 year 2014. government regulation no. 50 year 2011 concerning master plan of national tourism development year 2010 – 2025. constitutional court regulations no. 06/pmk/2005 concerning the guideline of the judicial review procedures. regulation of bali province no. 3 year 2001 concerning desa pakraman. regulation of bali province no. 2 year 2012 concerning culture tourism of bali. regulation of bali province no. 10 year 2015 concerning master plan of the bali province tourism development year 2015 2029. aboriginal land rights (northern territory) australia act 1979. regulating indigenous culture as a tourism economic resource made suksma prijandhini devi salain, david isles, and i gusti ngurah wairocana udayana journal of law and culture vol. 01 no.2, july 2017 139 native title australia act 1993 (cth). other document ashley, caroline, peter de drine, amy lehr, and hannah wilde. “the role of the tourism sector in expanding economic opportunity.” corporate social responsibility initative report, no. 23, cambridge, ma: kennedy school of government, harvard university, 2007 colquhoun, simon and alfred michael dockery. “the link between indigenous culture and wellbeing: qualitative evidence for australian aboriginal peoples.” clmr discussion paper series 2012/01. http://ceebi.curtin.edu.au/local/ docs/2012.01_lsic_qualitative_clmr1.pdf sudantra, i ketut. “pelaksanaan fungsi hakim perdamaian desa dalam kondisi dualisme pemerintahan desa di bali.” thesis s2 ilmu hukum program pasca sarjana universitas udayana, 2007. wyasa putra, i.b. “a contra-productive impact of indonesian new legislation on administrative village against indonesian indigenous culture as an economic resources.” international conference on access to justice for indigenous peoples. malaysia: faculty of law university of malaya, 2015 case law indonesia constitutional court decision no. 35/puu-x/2012 mabo v queensland [no 2] (1992) 175 clr 1 the wik peoples v queensland (1996) 141 alr 129 website content/internet demarco, claire. “legal research strategy,” http://guides.library.harvard.edu/law/ researchstrategy/primarysources http://bali.tribunnews.com/2017/07/26/ini-alasan-pura-ulun-danu-beratan-ditutup-puluhan-orang-berpakaian-adat http://study.com/academy/lesson/what-are-economic-resources-defini-tiontypes-examples.html http://www.balipost.com/news/2017/04/30/7149/wajib-libatkan-desa-adatdalam.html http://www.jawapos.com/radarbali/read/2017/07/26/3807/gawat-ob¬jek140 wisata-danau-beratan-disegel-warga https://www.ag.ndsu.edu/agriculturalmanagement/agmgmt/coursemate-rials/ econresources smallbusiness.chron.com/economic-definition-four-factors-production-3941.html lowe, kirstie and stephen ollerenshaw. “cultural tourism development program an introduction to the tourism industry and business development.” http:// www.environment.nsw.gov.au/resources/parksecopass/ctdprogram.pdf new south wales destination. “cultural and heritage tourism to nsw year ended december 2016.” https://www.destinationnsw.com.au/wp-content/uploads/ 2013/05/cultural-and-heritage-tourism-to-nsw-snapshot-ye-dec-2016.pdf top 10 tourist attractions in australia, www.touropia.com/tourist-attractions-inaustralia/ regulating indigenous culture as a tourism economic resource made suksma prijandhini devi salain, david isles, and i gusti ngurah wairocana e-issn 2549-0680 vol. 7, no. 2, july 2023, pp. 120-143 120 german environmental concerns on carbon offsetting and reduction: how it deals with european and international rules? samuel corbalán arévalo1 1 faculty iii wirtschaftswissenschaften, wirtschaftsinformatik und wirtschaftsrecht, university of siegen, germany. keywords abstract climate protection; corsia; environmental sustainability; eu-ets; international aviation. this paper analyzes the international climate protection instrument carbon offsetting and reduction scheme for international aviation (corsia), which is based on the international civil aviation organization (icao) assembly no. a39-3, and its relation to the european union emissions trading system (eu-ets) in aviation, which is based on directive 2008/101/ec. it is still unclear whether or to what extent the already existing eu-ets in aviation can continue due to corsia. questions regarding the implementation, enforcement and practicability of the climate protection instruments remain. the aim of this paper is to present a comparative analysis of the two climate protection instruments. in particular, to explore the question of the legal relationship between corsia and the eu-ets in aviation as well as the legal compatibility of the two climate protection instruments is essential. it will also explore how the european union (eu) and especially germany intends to implement corsia in parallel to the eu-ets in aviation. germany actively participates in international and european discussions and contributes towards harmonizing the implementation of corsia with the eu-ets, however, implementing corsia raises environmental concerns and brings challenges due to conflicting european and international rules. therefore, this paper explores how germany manages these conflicts and strives to strike a balance between regional and global approaches to mitigate the environmental impact of aviation. this conceptual paper analyzes relevant international, european, german legal instruments and textbooks, journal articles, academic works, and reports. doi https://doi.org/10.24843/ujl c.2023.v07.i02.p05 author e-mail 1 correspondence: samuel.carevalo@student.un i-siegen.de this is an open access article, distributed under the terms of the creative commons attribution license (http://creativecommons.org/licen ses/by/4.0/) 1. introduction the rapid growth of international aviation has created environmental problems including a tangible impact on climate change as a fast growing source of greenhouse gas (ghg) emissions. 1 it is estimated that global 1 see florian wozny et al, “corsia a feasible second best solution?,” applied science 12 (2022): 5, 12; marina efthymiou, "the fundamentals of environmental regulation of aviation: a focus on eu emissions trading scheme," aeron aero open access journal 5, no. 1 (2021): 9; and ariane debyser, “icao agreement on co2 emissions from aviation,” european parliamentary research service, 2019, 1. https://doi.org/10.24843/ujlc.2023.v07.i02.p05 https://doi.org/10.24843/ujlc.2023.v07.i02.p05 mailto:samuel.carevalo@student.uni-siegen.de mailto:samuel.carevalo@student.uni-siegen.de http://creativecommons.org/licenses/by/4.0/ http://creativecommons.org/licenses/by/4.0/ german environmental concerns on carbon offsetting and reduction: how it deals with european and international rules? samuel corbalán arévalo 121 anthropogenic carbon dioxide co2 emissions from international aviation is currently around 2.5-2.8%.2 if other ghgs are also considered, this value increases to around 4.9%. 3 however, according to current forecasts and calculations, these emissions will increase by up to 200% by 2050, and will be 4 to 6 times higher than that in 2010, due to the growing volume of international air traffic.4 for this reason, a comprehensive and far-reaching ghg reduction in international aviation is necessary. accordingly, several legal instruments have been created, with the aim of stabilizing projected global warming attributable to ghg emissions. the aviation sector was included in the eu-ets in 2012 through directive 2008/101/ec15.5 however, since this measure was adopted, it has been deemed insufficient to stabilize the co2 concentration in the atmosphere and achieve the desired targets. several non-eu states have expressed their anxiety about the environmental effectiveness of eu-ets and whether the eu approach conforms to international law. 6 the eu-ets inclusion of aviation emissions led to international dispute settlement, legal action prohibiting airlines from signatory countries participating in the eu-ets, market restrictions, and additional levies.7 climate change is an urgent problem that must be tackled jointly by all countries of the world. for this reason, the climate protection instrument corsia, the first global mechanism for emission reduction in the aviation industry, was adopted by the general assembly of the icao on an international basis in october 2016 by resolution a39-316 after decades of challenging negotiations. 8 corsia arranges icao certified offsetting programme that aims to stabilize co2 emissions from 2021 to 2019–2020 levels.9 under this climate protection instrument, airlines will initially be 2 jo ̈rgen larsson et al, “international and national climate policies for aviation: a review,” climate policy 19, no. 6 (2019): 787-799; european commission, inception impact assessment, revision of the eu emission trading system directive 2003/87/ec concerning aviation, 2020, 2. 3 david s. lee et al, “aviation and global climate change in the 21st century,” atmospheric environment 43, no. 22-23 (2009): 3525; sven maertens et al, “options to continue the eu-ets for aviation in a corsia-world,” sustainability 11, no. 20 (2019) (subsequently, maertens et al 1). 4 see council decision (eu) 2016/915 of 30.05.2016, recital 1 and weijun liao, ying fan, and chunan wang, "how does covid-19 affect the implementation of corsia?," journal of air transport management 99 (2022): 1. 5 directive 2008/101/ec of the european parliament and of the council of 19 november 2008, abl. l 8/3 from 13 january 2009. 6 martin schaefer et al, “the economic impact of the upcoming eu emissions trading system on airlines and eu member states an empirical estimation,” european transport research review 2 (2010): 190. 7 felicity deane and callum brockett, "carbon border adjustments: a legal tool for mitigation or a barrier to justice?," climate law 13, no. 1 (2023): 49. 8 see icao, assembly resolution a39-3, 2016; liao, fan, and wang, loc.cit.; and janina scheelhaase and sven maertens, “how to improve the global ‘carbon offsetting and reduction scheme for international aviation’ (corsia)?,” transportation research procedia 51 (2020): 109. 9 see united nations development programme, “report on corsia implications and carbon market development: assess corsia implications and carbon market development, 2022, 7 and baine p. kerr, “clear skies or turbulence ahead? the udayana journal of law and culture vol. 7 no. 2, july 2023 122 required to voluntarily compensate their growth-related co2 emissions by means of emission credits. corsia plans three phases of development: pilot phase (2021-2023), first phase (2024-2026) and second phase (20272035).10 it remains to be seen if and how the eu-ets in aviation can concurrently operate with corsia, particularly regarding its implementation, enforcement, and practicability of the two climate protection instruments. of particular future interest is the intention of the eu and its member states to implement corsia in parallel to the eu-ets in aviation. as a member of the eu, germany actively participates in international and european discussions and works towards harmonizing the implementation of corsia with the eu-ets to ensure a balanced approach. however, implementing corsia raises environmental concerns and brings challenges due to conflicting european and international rules. germany is also very actively involved in trading in european allowances (eua, euaa), which takes place primarily in amsterdam, the netherlands (ice endex) and leipzig-germany (eex) trading venues. auctions are held almost daily to ensure that the auctions fit seamlessly into general market activity. all auction results are published online within a few minutes to provide the highest possible market transparency. the german emissions trading authority (dehst) regularly reports on all market activity relating to allowances in its monthly auction reports. a large portion of the proceeds from the auctions is utilized to promote decarbonisation in both the energy sector and industry. 100 percent of germany’s proceeds go to the energy and climate fund (ekf), which finances various climate protection, energy efficiency, and renewable energy measures. this amount is double the obligation of member countries to use at least 50 percent of their national auction proceeds for climate protection.11 some previous studies have discussed the topic of this article. buissing (2022) argues that sustainability is the keyword for global discussion on environmental issues, in particular climate change, relating to air transport activities. 12 efthymiou (2021) views emissions trading as a market-based policy tool that combines interests of economic efficiency and environmental issues.13 regarding corsia, gonçalves (2017) suggests that this international agreement does not promote the direct reduction of ghg international civil aviation organization’s obligation to mitigate climate change,” utrecht law review 16, no. 1 (2020): 102. 10 liselotte jensen, “aviation's contribution to european union climate action revision of eu ets as regards aviation,” european parliamentary research service, june 2023, 3. 11 german emissions trading authority, “structure of the eu ets,” https://www.dehst.de/en/european-emissions-trading/understanding-emissionstrading/structure/structure_node.html. regarding eua and euaa, see janina scheelhaase, sven maertens, and wolfgang grimme, “options for improving the eu emissions trading scheme (eu ets) for aviation,” transportation research procedia 59 (2021): 195-196. 12 niall buissing, “eu air transport and the eu’s environmental agenda struggle: a leap of faith or can a cbam level the playing field?,” air and space law 47, no. 6 (2022): 577. 13 efthymiou, op.cit., 15. https://www.dehst.de/en/european-emissions-trading/understanding-emissions-trading/structure/structure_node.html https://www.dehst.de/en/european-emissions-trading/understanding-emissions-trading/structure/structure_node.html german environmental concerns on carbon offsetting and reduction: how it deals with european and international rules? samuel corbalán arévalo 123 emissions, but instead only compensation and argues that this does not accord with the principles and objectives of the climate regime.14 reflecting that both eu-ets and corsia have not yet reached expected progress in reducing emissions, gürçam (2022) argues that direct taxes on carbon and fuel offers a more effective solution, and therefore proposes that implementing localised carbon and fuel taxes should be permitted in a global context in due course.15 regarding the response of non-eu countries to the eu-ets, domingos (2012) suggests that the political position of the united states of america (us) strongly rejects the eu-ets,16 despite this, the scheme has an economic impact on the us aviation sector, as studied by malina (2012). 17 besides the us, may and yan (2023) discuss china’s disappointment towards eu policy and involvement in an aviation dispute regarding the inclusion of international flights under the eu-ets.18 liang and zhang (2014) explore the joint declaration of the moscow meeting on inclusion of international civil aviation in the eu-ets as adopted by 23 countries that expressly objected to such an inclusion.19 while efthymiou (2021) believes that air transportation contributes to economic prosperity, facilitating growth particularly in developing countries, 20 this is contrasted with nkuepo (2012), who argues that the eu-ets implies discrimination against developing countries.21 nugraha (2018) identifies mistakes related to eu-ets and argues that these should be used as lessons for the association of south east asian nations (asean) in implementing environmental schemes for the aviation sector.22 kotzampasakis (2023) and nelissen et al (2021) assessed recent developments and suggested that the current scheme of the eu-ets be expanded to include the international maritime shipping sector, while the construction and road transport sectors be arranged in a separate ets.23 14 veronica korber gonçalves, “climate change and international civil aviation negotiations,” contexto internacional 39, no. 2 (2017): 226. 15 selçuk gürçam, “global commercial aviation policies in the context of the climate crisis and an analysis of these approaches from the perspective of türkiye,” environmental research technology 5, no. 3 (2022): 235. 16 domingos nicole de paula domingos, “fighting climate change in the air: lessons from the eu directive on global aviation,” revista brasileira de política internacional 55 (2012): 71. 17 robert malina et al, "the impact of the european union emissions trading scheme on us aviation," journal of air transport management 19 (2012): 36-41. 18 duong thi thuy mai and bo yan, “divergences between the european union and china on reducing international aviation emissions,” asia european journal 21 (2023): 4. 19 wenqiong liang and liying zhang, "legal issues concerning the eu unilateral aviation ets: a chinese perspective," south carolina journal of international law and business 11, no. 1 (2014): 4-5. 20 efthymiou, op.cit., 9. 21 henri j. nkuepo, “eu ets aviation discriminates against developing countries,” africa’s trade law newsletter no. 7 (2012): 3-5. 22 ridha aditya nugraha, “preserving the environment within the asean skies: lessons from the european union emissions trading scheme,” hasanuddin law review 4, no. 1 (2018): 17, 26. 23 see manolis kotzampasakis, “intercontinental shipping in the eu ets: a ‘fiftyfifty’ alignment with the law of the sea and international climate law?,” review of european, comparative and international environmental law 32, no. 1 (2023): 29-30; udayana journal of law and culture vol. 7 no. 2, july 2023 124 this paper, therefore, aims to compare the climate protection scheme under corsia and eu-ets and analyzes the legal relationship between the two instruments. it discusses how germany manages the applicability of both corsia and the eu-ets and strives to strike a balance between regional and global approaches to mitigate the environmental impact of aviation. this legal writing is a conceptual paper that assesses international legal instruments, regionally-based european law and policies, and the national law of germany. the legal analysis is built by referring to textbooks, journal articles, academic works, and reports. 2. result and analysis 2.1 eu-ets and corsia: conflicting or complementary rules? there is a growing body of jurisprudence giving greater consideration to the problems arising from conflicts created by climate related instruments, especially those arising through international agreements. however, there are only a few climate protection regulations which have been enacted in connection with international aviation. it seems that international aviation has been excluded from almost all major international agreements regarding climate protection. as a result, questions and controversy remain regarding who is responsible and, above all, who has the competence to regulate climate protection in the international aviation sector. the first step towards combating climate change was taken with the commitments made in the united nations framework convention on climate change (unfccc) and the kyoto protocol. however, further steps are necessary to achieve the 2.0°c long-term target of the paris agreement and the icao's goal of co2-free air traffic growth from 2020. the unfccc includes commitments on adaptation which stresses identifying adaptation priorities and planning has been supplemented by efforts at implementation, and later the paris agreement which further increases requisite action and obligations on adaptation. 24 however, the international climate change regime, including the kyoto protocol and paris agreement, seem to offer a challenging mechanism for reporting emissions and emission reductions.25 although the kyoto protocol does not include international aviation, it addressed icao to its pursuit of limitating and reducing ghg emissions. icao later responded by issuing a resolution on mitigating climate change.26 the kyoto protocol, as well as the eu-ets, basically views the emission of dagmar nelissen et al, the aviation and maritime sectors and the eu emission trading system (eu ets): challenges and impacts, final study, research for tran committee, european parliament, 2021; and directive (eu) 2023/959 of the european parliament and of the council of 10 may 2023 amending directive 2003/87/ec establishing a system for greenhouse gas emission allowance trading within the union and decision (eu) 2015/1814 concerning the establishment and operation of a market stability reserve for the union greenhouse gas emission trading system. 24 lauren nishimura, "adaptation and anticipatory action: integrating human rights duties into the climate change regime," climate law 12, no. 2 (2022): 100. 25 david rossati, "a question of value: on the legality of using kyoto protocol units under the paris agreement," climate law 11, no. 3-4 (2021): 320. 26 see kerr, op.cit., 107-108 and david s. lee et al, “transport impacts on atmosphere and climate: aviation,” atmospheric environment 44, no. 37 (2010): 4679. german environmental concerns on carbon offsetting and reduction: how it deals with european and international rules? samuel corbalán arévalo 125 pollutants as a commodity that requires a measure to calculate the degree of equivalence between the different ghgs.27 market-based measures, such as the eu-ets or the future climate protection instrument corsia, represent extremely attractive options for implementing the requirements of the international climate protection agreements. although the two systems are market-based instruments, they are fundamentally different and difficult to compare. 28 the eu-ets is a "cap-and-trade emissions trading system" 29 in which the eu attempts to induce aviation to reduce emissions and corsia is a "baseline and credit compensation system" in which only offsetting of emissions is required. both instruments represent environmental approaches with economic incentives in the form of certificate solutions. the question that now arises is whether the regulatory provisions of corsia and the eu-ets can be combined and thus complement each other, or whether they are incompatible and thus conflict with each other. in order to explore this question, the two different climate protection instruments are presented and analyzed in detail. 2.1.1 ets by the european union eu is a regional-based international organization that aims to address climate change through various schemes. the most recent scheme is carbon border adjustment mechanism (cbam) which places a price on carbon embedded in imports from certain energy-intensive sectors entering the eu. it will commence its transition period in 2023 with expected implementation in 2027. 30 in the context of civil aviation, the eu’s aviation scheme was made as a unilateral response to an unsuccessful undertaking to seek international commitment on the issue from icao.31 a. history and legal development in order to fulfil the requirements and obligations of the kyoto protocol, the emissions trading directive 2003/87/ec (ets directive) was adopted on 13 october 2003 based on eu law and according to article 192 (1) of the treaty on the functioning of the european union (tfeu). subsequently, the greenhouse gas emissions trading act (tehg) 32 was enacted in germany to implement the directive domestically. since these 27 efthymiou, loc.cit. 28 maertens et al 1, op.cit., 16. 29 tobias eriksson, “eu ets vs. corsia – a neoliberal institutionalist study of european emission reduction policy” (master-thesis, department of political science centre for european studies (ces), university of gothenburg, 2019), 7. 30 natalie l. dobson, “(re)framing responsibility? assessing the division of burdens under the eu carbon border adjustment mechanism,” utrecht law review 18, no. 2 (2022): 163, 165. 31 lorand bartels, “the wto legality of the application of the eu’s emission trading system to aviation,” european journal of international law 23, no. 2 (2012): 433-434. 32 gesetz zur umsetzung der richtlinie 2003/87/eg u ̈ber ein system für den handel mit treibhausgasemissionszertifikaten in der gemeinschaft of 08 juli 2004, bgbl. 2004 i of 14 juli 2004 / act implementing directive 2003/87/ec establishing a scheme for greenhouse gas emission allowance trading within the community of 8 july 2004, bgbl. 2004 i of 14 july 2004. udayana journal of law and culture vol. 7 no. 2, july 2023 126 legal instruments were not applicable to international aviation, the eu commission submitted a proposal for a directive33 in 2006 to include air traffic in the eu-ets. with directive 2008/101/ec of 19 november 2008, emissions trading was then extended to international aviation from 1 january 2012. however, the scope of directive 2008/101/ec was limited by the so-called "stopping-the-clock decision", because non-eu airlines from third-party countries also had to purchase emission certificates in order to be allowed to operate within european airports. based on these developments and the negative reaction from the global aviation industry, the european court of justice (ecj), in the air transport association of america (ataa) case, assessed the jurisdictional basis of eu ets.34 the ruling of ecj excluded non-eu airlines from the scope of directive 2008/101/ec even though directive 2008/101/ec does not create conflict with obligations under international law.35 due to this suspension of regulation 421/2014/eu, the application of the eu-ets to non-eu carriers was interrupted until 2020.36 in order to support the icao with the corsia project, the eu has adopted further temporary exemptions and continues to limit the scope of the directive until 31 december 2026,37 which is why only flights within the european economic area (eea) are still subject to emissions trading. the eu-ets does not include certain types of flights from the cap-and trade system, such as military, circular and public service obligation flights.38 b. content and mechanism with more than 11.500 participants in 27 countries, the eu-ets is the largest cap-and-trade system for co2 emissions.39 in such a system, a fixed upper limit, referred to as a "cap", of maximum available emission allowances is initially set.40 this emission cap applies to a defined area in a specific period for participating sectors.41 in the eu-ets, the emission cap was 97% in 2012 and 95% from 2013 onwards.42 pursuant to this scheme, 85% of the allowances were issued free of charge in the first trading period 33 european commission (2006), 818 of 20 desember 2006. 34 dobson, op.cit., 164. 35 european court of justice. case c-366/1 air transport association of america, american airlines, inc, continental airlines, inc, united airlines, inc v the secretary of state for energy and climate change [2011] ecr i-0000 (ataa case) https://eurlex.europa.eu/legal-content/en/txt/pdf/?uri=celex:62010cj0366 36 regulation (eu) 421/2014 of 16 april 2014, abl. l 129/1 of 30 april 2014. 37 european commission, inception impact assessment, revision of the eu emission trading system directive 2003/87/ec concerning aviation, 2020, 1; maertens et al, op.cit., 3; and european commission, “eu emissions trading system (eu ets),” https://climate.ec.europa.eu/eu-action/eu-emissions-trading-system-eu-ets_en 38 marina efthymiou and andreas papatheodorou, “eu emissions trading scheme in aviation: policy analysis and suggestions,” journal of cleaner production 237 (2019): 2. 39 a. denny ellerman, frank j. convery, and christian de perthuis. pricing carbon, the european emissions trading scheme (cambridge: cambridge university press, 2010), 28. 40 kruse-andersen, endogenizing the cap in a cap-and-trade system: assessing the agreement on eu ets phase 4, 2018, 5. 41 ibid., 14. 42 maertens et al 1, op.cit., 2; directive 2008/101/eg of 19.11.2008, abl. l 8/3 of 13 january 2009, art. 3 (c). https://climate.ec.europa.eu/eu-action/eu-emissions-trading-system-eu-ets_en german environmental concerns on carbon offsetting and reduction: how it deals with european and international rules? samuel corbalán arévalo 127 and around 82% in the second trading period.43 each allowance entitles the holder to emit a certain amount of harmful co2 emissions. over time, this emissions cap is reduced to incentivize participants to further reduce co2 emissions and steer them towards more environmentally conscious behavior.44 it is critically important for the success of schemes structured this way that the cap is not exceeded. this is because the market mechanism is to incrementally decrease the supply of available certificates, thereby creating higher prices for available certificates over time. the increased price of certificates provides an economic incentive for participants to invest in technologies and promote efficient business practices that are more environmentally friendly and emit less co2.45 as a result, co2 emissions trading pursues the goal of adhering to an emissions cap by incentivising airlines to make cost-effective reductions.46 in this context, the eu-ets is an environmental law instrument, but also an economic instrument for indirect behavioral control, in that it offers users a financial incentive to behave in a more environmentally conscious manner.47 2.1.2. corsia by the international civil aviation organisation a. history after several years of difficult negotiations, corsia was launched by the icao at the 39th general assembly in october 2016.48 corsia is an independent, global and market-based measure for international aviation under international law. the main objectives of corsia are twofold: firstly, to improve fuel efficiency by 1.5-2.0% by 2050 and secondly, to introduce compressed natural gas in 2020. in addition, corsia is intended to further the achievement of the stated goals contained in the unfccc and the paris agreement. the climate instrument is part of a comprehensive climate protection strategy of the icao, which consists of a bundle of measures in areas including technology and infrastructure, but also includes the use of sustainable fuels and the development of new aircraft concepts. aviation is thus the first industry to be covered by a global climate protection instrument. b. content corsia is designed as a climate compensation system. in such a system, there is no absolute, politically determined emissions cap, as in an ets.49 rather, emission credits must be acquired for emissions that exceed 43 directive 2008/101/eg of 19.11.2008, abl. l 8/3 of 13 january 2009, art. 3 (e). 44 sven maertens et al, “klimaschutz im luftverkehr: of eu-emissionshandel zu corsia,” wirtschaftsdienst zeitschrift für wirtschaftspolitik 97, no. 8 (2017): 589. (subsequently, maertens et al 2) 45 ibid. 46 hendrik plath. die einbeziehung des luftverkehrs in den eu-emissionshandel, in: internationale göttinger reihe, rechtswissenschaften (frankfurt: band 59, 2014), 57. 47 lambert schneider and nora wissner, “fit for purpose? key issues for the first review of corsia,” öko-institut, berlin, 2022, 5. 48 icao, assembly resolution, a39-3, 2016; maertens et al 1, op.cit., 2. 49 schneider and wissner, op.cit., 11. udayana journal of law and culture vol. 7 no. 2, july 2023 128 a predetermined baseline.50 these emission credits can be acquired through investments in climate-protection-friendly projects. 51 independent institutions then create certifications according to the standards set out in the kyoto protocol. 52 with regard to corsia, the un climate change secretariat is responsible for collecting, awarding and certifying these projects.53 the certifications are called “offset certificates”. these are legal fictions and do not represent physical goods.54 rather, they are simple notes in electronically managed registers.55 due to the covid-19 pandemic, the values were adjusted so that only the values from 2019 are used for calculating the baseline. in this sense, all growth-related co2 emissions emitted by airlines above this new baseline must be offset. c. legal scope the legal basis of corsia consists of a complex collection of different international legal decisions, guidelines and recommendations. the legal framework and the regulations of corsia consist primarily of the "icao policies", which are derived from the chicago agreement and the resolutions of the general assemblies, or "assembly resolutions". resolution a39-3 of the icao forms the founding basis of the corsia agreement, expanded by international guidelines and recommendations, also known as "standards and recommended practices" (sarps) and the icao guidelines and manuals, or "icao guidances". the sarps are the main implementation instrument for corsia and were added to the chicago agreement by the icao council on 27 june 2018 as annex 16, volume iv, entitled corsia.56 the sarps contain guidelines and detailed recommendations for the administration of corsia in participating states.57 the monitoring, reporting and verification (mrvs) of corsia is set out in annex 16, volume iv of the chicago agreement and has been in force since 2019. the mrvs are applicable in all icao member states.58 therefore, all aircraft operators, including those that are not parties to the corsia agreement, must monitor, report and verify their co2 emissions.59 the reporting of co2 emissions takes place annually, while the offsetting obligation only comes into effect after three years.60 the eu has, subject to some differences regarding corsia’s mrvs, nevertheless fully transposed them into eu law through implementing regulation (eu) 50 ibid. see also scheelhaase and maertens, loc.cit. 51 ibid. 52 ibid., 15. 53 ibid. 54 uwe m. erling, “international aviation emissions under international civil aviation organization’s global market-based measure ready for offsetting,” air & space law 42, no. 1 (2017): 9. (subsequently, erling 1) 55 ibid. 56 icao, annex 16 to the convention on international civil aviation, environmental protection iv, 2018, table a, amendments to volume iv of annex 16. 57 iata, an airline handbook on corsia, 2019, 7. 58 ibid.; icao, loc.cit. 59 iata, op.cit., 12. 60 icao, assembly resolution a39-3, 2016, para. 16; iata, op.cit., 32; and erling 1, op.cit., 5. german environmental concerns on carbon offsetting and reduction: how it deals with european and international rules? samuel corbalán arévalo 129 2018/2066. accordingly, germany and all other eu member states must also transpose this eu-regulation into national law. d. mechanism corsia only covers international air traffic, it does not encompass domestic air traffic. the scope of corsia is limited to the routes flown between states. 61 corsia is applicable to all international flights (civil aviation flights that depart from one country and arrive in another) between participating states. 62 as a result, airlines operating such a route must offset their growth-related co2 emissions.63 corsia does not apply if one or both states are not contracting states. 64 the obligation to hold offsetting certificates therefore depends on the route flown.65 for the calculation of growth-related co2 emissions, it applies the sectoral approach as well as an individual approach on part of relevant airline operators. 66 under the sectoral approach, 67 airlines must collectively offset the industries’ co2 emissions in relation to the average co2 growth rate. in contrast, under the individual approach,68 each individual airline compensates for its total own growth-related co2 emissions. in decision a39-3, the icao general assembly agreed to pursue a dynamic approach. this begins with the sectoral approach and is then incrementally expanded until 2035 to encompass individual shares.69 2.1.3. is it possible to harmonize the eu-ets and corsia? in order to limit co2 aviation emissions, the two systems discussed, corsia and the eu-ets, are likely to shortly be in concurrent operation. however, a problem arises from the fact that co2 emissions from international aviation may be covered by both corsia and the eu-ets in aviation. since all eu member states have repeatedly declared their participation in corsia, the eu commission may have to adapt the eu-ets in consideration of corsia. however, an adjustment of the eu-ets in aviation encounters a highly debated problem both in the eu and in the icao. the following section is therefore dedicated to reviewing the enforcement, implementation and practicability of corsia and the eu-ets in aviation. in this context, a distinction must be made between national and international aviation emissions regarding the legal feasibility of climate protection instruments,70 because the eu-ets in aviation, in contrast to corsia, also includes national aviation emissions. 61 schneider and wissner, op.cit., 12. 62 see decision a39-3, paras. 5 and 10 (a); scheelhaase and maertens, op.cit., 110. 63 schneider and wissner, loc.cit. 64 decision a39-3, paras.10 (b) and (c). 65 schneider and wissner, loc.cit. 66 resolution of icao assembly no. a39-3, para. 11 (a). 67 sectoral approach is defined in resolution of icao assembly no. a39-3, para. 11 (b). 68 individual approach is defined in resolution of icao assembly no. a39-3, para. 11 (c). 69 resolution of icao assembly no. a39-3, para. 11 (e). 70 larsson et al., op.cit., 792. udayana journal of law and culture vol. 7 no. 2, july 2023 130 a. international and european approach the following permutations are potential regulatory scenarios and outcomes: corsia: this option illustrates the planned implementation, enforcement and practicability of corsia in accordance with the relevant standards, resolutions and annex 16, volume iv chicago agreement. as a result, corsia must then fully replace the eu-ets in aviation, so that co2 emissions in the sense of resolution of icao assembly no. a39-3 are not compensated twice by both corsia and the eu-ets. such a double burden would lead to extreme and disproportionate distortions of competition within the eea. corsia would then be the only global climate protection instrument for international aviation emissions in the eea. 71 however, under these circumstances, national aviation emissions are completely disregarded. 72 considering the fact that the eu-ets in aviation already covers national co2 aviation emissions from constituent member states, this results in a significantly higher compensation of co2 emissions taking place, this option does not seem to be very suitable for the eu. corsia + corsia national: similar to the previous option, corsia is implemented as planned in the participating countries. notwithstanding the fact that corsia was conceived as an international climate protection instrument, a corresponding national application of corsia is quite conceivable. in this sense, the eu can additionally enforce corsia on a voluntary basis in its member states. norms prohibiting such an application of corsia are currently not apparent.73 finally, the voluntary application of the system at a national level would also achieve significantly broader coverage. consequently, the eu must also separate aviation from the euets in this scenario to avoid an undesirable double burden on airlines within the eea, especially in accordance with resolution of icao assembly no. a39-3. corsia + eu-ets national: however, a complete exclusion of aviation from the eu-ets may not be a sensible option for the eu and is a rather less intended option.74 in order to meet the requirements of corsia set out in annex 16, volume iv of the chicago agreement and specifically resolution of icao assembly no. a39-3, the eu must restrict directive 2008/101/ec once again and at least limit the scope to domestic flights. in this option, the eu-ets in aviation thus remains in place for national aviation.75 from an environmental-economic point of view this option could be extremely attractive for the eu. as previously mentioned, national co2 emissions from aviation are the responsibility of individual states under the unfccc and the territorial principle. if corsia is implemented in parallel 71 eriksson, eu ets vs. corsia, master-thesis, 2019, 14. 72 bundesverband der deutschen industrie e.v, “anmerkungen zum inception impact assessment,” 2020, 2. 73 uwe m. erling,” how to reconcile the european union emissions trading system (eu-ets) for aviation with the carbon offsetting and reduction scheme for international aviation (corsia)?,” air & space law 43, no. 4/5 (2018): 385. (subsequently, erling 2) 74 maertens et al 1, op.cit., 9. 75 ibid., 2; van velzen, “corsia, eu-ets and the eu2030 aviation emissions target,” (2018): 7. german environmental concerns on carbon offsetting and reduction: how it deals with european and international rules? samuel corbalán arévalo 131 with the eu-ets in aviation, legal implementation of this option may be possible and is therefore particularly sensible. corsia + eu-ets mix: this combination first involves a limited application of the eu-ets in aviation and then the scheduled and full application of corsia.76 as a result, the co2 emissions of the eea would be regulated up to the baseline of corsia by the eu-ets in aviation. all co2 emissions above the baseline would then fall within the scope of corsia.77 this option considers both the application of the eu-ets and the application of corsia.78 the eu could be in favor of this option, as it would allow it to continue the eu-ets in aviation almost entirely with only a few restrictions. in terms of environmental effectiveness, a much more comprehensive coverage of co2 emissions within the eea would be achieved. corsia + eu-ets clean cut: in the "clean cut" combination, the current reduced scope of directive 2008/101/ec will continue to be maintained by the eu.79 accordingly, all flights within the eea will basically be covered by the eu-ets. all flights that take place outside the eea between corsia states will then be covered by the guidelines and recommendations of corsia.80 as a result, corsia is completely neglected within the eea. in accordance with the icao definitions of an international flight, all flights between eu member states would also have to be considered as such and thus be subject to the scope of corsia without exception.81 both the common approach of a global solution demanded by the eu and the realization of an international compromise would be completely abandoned and not fulfilled by this option. the retention of international flights within the eea in the eu-ets contradicts the actual international consensus and thus also the requirements and resolutions of corsia. 82 although this option appears to be quite sensible from an environmental-economic perspective, this scenario should be rejected for the reasons mentioned. legal implementation of such a scenario also appears to be particularly difficult, as there would be serious differences between the eu-ets in aviation and corsia.83 in the event that none of these possible scenarios is approved by the eu and no amendment to the ets directive is adopted by the eu parliament and council by 31 december 2023, the eu-ets for aviation 76 van velzen, ibid. 77 european commission, inception impact assessment, revision of the eu emission trading system directive 2003/87/ec concerning aviation, 2020, 3. 78 van velzen, loc.cit.; bundesverband der deutschen industrie e.v, loc.cit. 79 ibid.; maertens et al 1, op.cit., 9; european commission, inception impact assessment, revision of the eu emission trading system directive 2003/87/ec concerning aviation, 2020, 3; and eriksson, op.cit., 14. 80 van velzen, op.cit., 7; maertens et al 1, ibid. 81 icao, assembly resolution a39-3, 2016, para. 5; erling 2, op.cit., 382. 82 bundesverband der deutschen industrie e.v, loc.cit. 83 eriksson, op.cit., 9. udayana journal of law and culture vol. 7 no. 2, july 2023 132 would automatically revert to its original scope of application.84 as a result, all aircraft operating within the eea would again become subject to emissions trading. 85 since the full scope of directive 2008/101/ec, as initially implemented, led to unexpected trade policy conflicts, an implementation of this option also appears to be particularly difficult under international law and would violate the requirements of corsia.86 in the decisions of the general assembly and pursuant to annex 16, volume iv of the chicago convention, corsia has been settled upon the only climate protection instrument for international aviation. therefore, it seems to make sense to remove aviation from the scope of the ets directive with the commencement of corsia, especially since all eu member states have committed to participate in the voluntary pilot phase of corsia. however, this option could not help the eu to achieve its targets of reducing overall co2 emissions by at least 40% from the paris agreement. for environmental and economic reasons, the other options listed above should therefore continue to be considered. b. environmental concerns when evaluating the efficacy of climate protection instruments, it is particularly important to examine their actual or projected impact on the environment.87 setting aside matters of legal implementation, enforcement and practicability of corsia and the eu-ets in aviation, it is important, especially for the eu, due to its ambitious climate protection targets for 2030, to examine and compare the effectiveness of the two climate protection instruments in achieving their policy objectives. for this reason, the eu commission is currently examining the environmental compatibility of corsia and the eu-ets in aviation. one reason for the eu to continue to adhere to the eu-ets is that the corsia targets are less ambitious. it should also be noted that the environmental effectiveness of corsia and the eu-ets depends on different aspects.88 as discussed in section 2.1.2, the environmental concern of corsia is stipulated in annex 16, volume iv of the chicago agreement. although corsia, as a global climate protection instrument, encompasses significantly more states and more routes than the eu-ets in aviation, and thus initially has a significantly higher potential, the eu-ets can nevertheless be expected to be considerably more environmentally effective in the context of eu co2 emissions. this is due to the fact that corsia only takes into account the additional co2 emissions beyond the stipulated baseline. participants whose co2 emissions are below that baseline remain 84 maertens et al 1, op.cit., 3; european commission, inception impact assessment, revision of the eu emission trading system directive 2003/87/ec concerning aviation, 2020, 3. 85 directive 2008/101/eg of 19 november 2008, abl. l 8/3 of 13 january 2009, recital 16. 86 janina scheelhaase et al, “eu ets versus corsia – a critical assessment of two approaches to limit air transport’s co2 emissions by market-based measures,” journal of air transport management 67 (2018): 60. 87 larsson et al, op.cit., 792. 88 eriksson, op.cit., 11. german environmental concerns on carbon offsetting and reduction: how it deals with european and international rules? samuel corbalán arévalo 133 unregulated as so-called "base emissions". 89 however, the environmental effectiveness of corsia depends not only on the amount of co2 to be offset, but also on the quality of the available replacement measures.90 the problem is that not enough high-quality offset certificates are available, especially if a huge sector such as aviation is suddenly added to the demand.91 in this context, it is advantageous that corsia invests in climate-friendly projects, but whether these are also investments in new climate protection projects or only in existing projects is currently not clear.92 in this respect, the icao has not been specific enough about the requirements for offset certification. 93 the biggest challenges of such an offset scheme is the ability to maintain the environmental integrity and credibility of the system. 94 therefore, any emission reduction offered through offset certificates must lead to a real verifiable and permanent co2 reduction. 95 further, a criticism of corsia is that it contains too many exemptions, for example, in the mandatory second phase around 118 out of a total of 193 icao states would be excluded from the program,96 unless these states commit themselves voluntarily. moreover, corsia does not reduce co2 emissions in absolute terms, because airlines can continue to emit harmful co2 emissions through the offsetting system. 97 for this reason, corsia in a way grants a cumulative growth in emissions and does not guarantee a significant reduction in co2 emissions. in this sense, corsia is not aligned with the paris agreement and thus will not achieve the 2 °c long-term target.98 the eu also fears that it will miss its reduction targets from the paris agreement if the eu-ets in aviation is abandoned. in contrast, the eu-ets has become one of the most important environmental policy instruments in the eu in recent years. although the eu-ets in aviation currently only covers 9% of global air traffic, it has a significant advantage from an environmental point of view as it addresses the total amount of co2 emissions emitted and has a stricter and more ambitious emissions cap.99 in summary, it can be said that corsia currently makes only a very small contribution to achieving the goals of the paris agreement, especially within the eu. it will therefore be difficult to reach the 40% target. in order to increase environmental effectiveness and to continue to comply with the 89 schneider and wissner, op.cit., 11. 90 maertens et al 1, 7. 91 maertens et al 2, 593. 92 yvonne karimi-schmidt, “klimaschutz aus völkerrechtlicher sicht unter besonderer berücksichtigung der zivilen luftfahrt,” zeitschrift fu ̈r öffentliches recht 74, no. 1 (2019): 49; maertens et al 1, op.cit., 4. 93 ibid. 94 ibid. 95 erling 1, op.cit., 8. 96 ellen schep, andre van velzen, and jasper faber, “a comparison between corsia and the eu ets for aviation,” (2016): 6. 97 larsson et al, op.cit., 789. 98 megan darby, “un aviation pact will not be aligned with paris climate goals, climate change news,” http://www.climatechangenews.com/2016/10/06/un-aviation pact-will-not-be-aligned-with-paris-climate-goals/ 99 maertens et al 1, op.cit., 10. http://www.climatechangenews.com/2016/10/06/un-aviation-%20pact-will-not-be-aligned-with-paris-climate-goals/ http://www.climatechangenews.com/2016/10/06/un-aviation-%20pact-will-not-be-aligned-with-paris-climate-goals/ udayana journal of law and culture vol. 7 no. 2, july 2023 134 paris agreement obligations, the possibilities of maintaining some elements of the eu-ets in aviation are therefore being discussed in the eu.100 2.2. implementation of corsia by the german government 2.2.1. german environmental concerns of aviation the german constitution contains a policy directive on environmental protection, determining that the state shall provide legal protection for the natural foundations of life and animals.101 germany is concerned about the impact of air pollution and carbon emissions on climate change. regarding national law, the german aviation act (luftverkehrsgesetz) encompasses issues of air pollution by aircraft. this aviation act determines that an advisory committee, established by the federal ministry for the environment, nature conservation and nuclear safety as well as the federal ministry for transport and digital infrastructure, may deliver recommendations for protection against air pollution from aircraft.102 additionally, the federal climate change act (bundesklimaschutzgesetz) was enacted to ensure the achievement of national climate targets and compliance with the european targets by considering ecological, social, and economic impacts and referring to obligations stipulated in the paris agreement under the unfccc. 103 this climate change act provides that annual reduction targets shall be arranged by stipulating annual emission budgets to achieve the national climate targets for transport sectors, including domestic civil aviation.104 2.2.2.germany between eu-ets and corsia in the context of aviation, germany, along with the eu and its other member states, have been striving to achieve an international approach to reduce the impact of co2 emissions from aviation since 1997.105 as a result, the eu has adopted some legislation to limit co2 aviation emissions in the form of the eu-ets. the eu also supports, in principle, the icao's plan to introduce a global, market-based mechanism for co2 emissions from international aviation to combat climate change.106 in this context, the eu has already made three temporary exemptions from the eu-ets in aviation to support icao's progress on corsia.107 most recently, the ets directive was revised in 2017 to extend the current geographical scope exemption until 31 december 2023.108 ultimately, the eu and germany are some of the first jurisdictions in the world to have adopted legally binding provisions for 100 ibid., 1. 101 see wolfgang babeck, “how constitutional courts navigate climate litigation,” iustitia 1, no. 4 (2023): 24 and german basic law, art. 20 (a). 102 german aviation act (luftverkehrsgesetz), section 32 (a) (1). 103 german federal climate change act (bundes-klimaschutzgesetz), section 1. 104 ibid., section 4 (1) and annex 1. 105 regulation (eu) 2017/2392 of 13 december 2017, abl. l 350/7 of 29 december 2017, recital 5. 106 decision (eu) 8758/20 corsia, 1 of 23 june 2020. 107 european commission (2019) 1644 of 06 march 2018. 108 european commission, inception impact assessment, revision of the eu emission trading system directive 2003/87/ec concerning aviation, 2020, 1. german environmental concerns on carbon offsetting and reduction: how it deals with european and international rules? samuel corbalán arévalo 135 the implementation of corsia. 109 in particular, with regulation (eu) 2017/2392, the eu has taken the first steps towards implementing the icao mechanism. however, corsia is only considered to the extent that the eu's climate targets from the paris agreement are not neglected.110 in decision (eu) 2018/2027, 111 the eu points out that there are still some differences between the ets directive and the requirements of corsia.112 in this context, the statements of the eu transport commissioners should also be considered. violetta bulc stated in september 2019 that the eu commission wants to expand the eu-ets contrary to the decisions of corsia, specifically against decision a40-19, para. 18. 113 adina valean announced in may 2020 that the eu commission will stick to the eu-ets for aviation but also wants to fulfil the obligations of corsia in order to prevent the program from failing.114 corsia will most likely not replace the eu-ets in aviation, but rather complement it in some aspects. in this context, the two previously discussed scenarios of "corsia + eu-ets national" and "corsia + eu-ets mix" come into consideration. the current and future differences between eu law and the legal framework of corsia must be considered in order to preserve the legal framework of the eu-ets.115 the eu thus makes the future of the eu-ets dependent on the success of corsia. the eu and germany have repeatedly confirmed to icao that they will intensively support icao in the implementation of corsia, 116 despite some differences between ets directive 2003/87/ec and the sarps of corsia.117 the eu's position has triggered unrest about whether corsia will be generally adopted, transcribed and fully implemented by all contracting states under these circumstances. however, the icao expects from its contracting states to transpose the sarps into their respective national laws largely unchanged. 118 states that have confirmed their participation in corsia should therefore transpose the icao guidelines into national law in a legally binding manner within the framework of the chicago agreement. the icao further argues that this process is imperative, firstly to preserve the environmental integrity of corsia and secondly to avoid market distortions.119 109 ibid., 1; european commission (2019) 1644 of 06 march 2019. 110 european commission (2020) 194 of 13 may 2020. 111 beschluss (eu) 2018/2027 of 29 november 2018, abl. l 325/25 of 20 december 2018. 112 jordan labkon and barry moss, “corsia creates compliance complexities for aviation financiers,” the air and space lawyer 32, no. 1 (2019): 4. 113 “staaten drohen mit boykott von corsia – icao-versammlung in der zwickmühle,” http://www.airliners.de/eu-boykott-un-emissionshandel-zwickmuehle/52027?utm_campaign=readmore&utm_medium=articlebox&utm_source=air 114 “europa geht auf konfrontationskurs zur icao,” http://www.airliners.de/europa-corsia-konfrontationskurs-icao/55430 115 european commission (2019) 1644 of 6 march 2019. 116 ibid., 1. 117 council decision (eu) 2018/2027 of 29 november 2018. 118 labkon and moss, op.cit., 4. 119 iata, op.cit., 7. http://www.airliners.de/eu-boykott-un-emissionshandel-zwick-muehle/52027?utm_campaign=readmore&utm_medium=articlebox&utm_source=air http://www.airliners.de/eu-boykott-un-emissionshandel-zwick-muehle/52027?utm_campaign=readmore&utm_medium=articlebox&utm_source=air http://www.air-liners.de/europa-corsia-konfrontationskurs-icao/55430 http://www.air-liners.de/europa-corsia-konfrontationskurs-icao/55430 udayana journal of law and culture vol. 7 no. 2, july 2023 136 by participating in the icao programme, germany has decided to implement the legal framework of corsia as far as possible. at this point, however, it should be emphasized that the german government, like the eu, is of the opinion that the eu-ets in aviation is compatible with corsia.120 the german government states that resolution of icao assembly no. a39-3 has no direct impact on the eu-ets in aviation, as the corsia agreement itself is not of a legally binding nature. in this context, the german government points out that the final relationship between the eu-ets in aviation and corsia has not yet been conclusively determined. the german government also expects a proposal from the eu commission this year on the corsia agreement.121 in order to implement the provisions of corsia uniformly and quickly in the national legal systems of all eu member states, a european legal act is therefore absolutely necessary. corsia can then be implemented in national legal systems. thus, the success of corsia also depends on which legally binding measures the individual contracting states of corsia outside the eu adopt. for this reason, the eu must also decide quickly whether and how it wishes to continue with the eu-ets in aviation. 3. conclusion currently, it remains unclear whether and to what extent the already existing eu-ets in aviation will continue upon commencement of corsia. the results of this final work and the current position of the eu indicate that corsia will not be implemented according to annex 16, volume iv of the chicago agreement. rather, the eu and especially germany indicate that they will retain elements of the eu-ets in aviation. based on this, two scenarios appear more likely: corsia + eu-ets national and corsia and eu-ets national, and warrant further consideration. the important question of whether and to what extent corsia will be applied within the eu remains unanswered. to date, the european commission has not submitted its report and legislative proposal, which means that future decisions by the legislature are still pending. finally, it should be noted that the development and implementation of corsia is an ongoing process that will continue into the years ahead. author’s statement of acknowledgment this article is the personal work of the author. the article’s analysis and opinion reflect the author’s ideas and shall not be associated with the affiliation where the author is studying at the faculty iii wirtschaftswissenschaften, wirtschaftsinformatik und wirtschaftsrecht, university of siegen, germany. 120 european commission, inception impact assessment, revision of the eu emission trading system directive 2003/87/ec concerning aviation, 2020, 3. 121 german bundestag, antwort der bundesregierung zur vereinbarkeit des europäischen zertifikatehandels im luftverkehr mit corsia, 2019, 2. german environmental concerns on carbon offsetting and reduction: how it deals with european and 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http://ec.europa.eu/info/law/better-regulation/have-yoursay/initiatives/12494-revision-of-the-eu-emission-trading-system-directive-con-cerning-aviationhttp://ec.europa.eu/info/law/better-regulation/have-yoursay/initiatives/12494-revision-of-the-eu-emission-trading-system-directive-con-cerning-aviationhttp://ec.europa.eu/info/law/better-regulation/have-yoursay/initiatives/12494-revision-of-the-eu-emission-trading-system-directive-con-cerning-aviationhttps://bmdv.bund.de/blaetterkatalog/catalogs/429104/pdf/complete.pdf https://bmdv.bund.de/blaetterkatalog/catalogs/429104/pdf/complete.pdf https://dserver.bundestag.de/btd/19/159/1915965.pdf https://www.ipcc.ch/site/as-%20sets/uploads/2018/05/syr_ar5_final_full_wcover.pdf https://www.ipcc.ch/site/as-%20sets/uploads/2018/05/syr_ar5_final_full_wcover.pdf https://www.ipcc.ch/site/assets/uploads/2018/02/ar4_syr_full_report.pdf https://www.ipcc.ch/site/assets/uploads/2018/02/ar4_syr_full_report.pdf udayana journal of law and culture vol. 7 no. 2, july 2023 142 international air transport association. “an airline handbook on corsia, 2019.” jensen, liselotte. “aviation's contribution to european union climate action revision of eu ets as regards aviation.” https://www.europarl.europa.eu/regdata/etudes/brie/2022/69888 2/eprs_bri(2022)698882_en.pdf kruse-andersen, peter k. “endogenizing the cap in a cap-and-trade system: assessing the agreement on eu ets phase 4, 2018.” https://dors.dk/files/media/publikationer/arbejdspapirer/2018/arbe jdspapir_2018.02.pdf nelissen, dagmar et al. “the aviation and maritime sectors and the eu emission trading system (eu ets): challenges and impacts, final study, research for tran committee, european parliament, 2021.” https://www.europarl.europa.eu/regdata/etudes/atag/2021/6908 78/ipol_ata(2021)690878_en.pdf schep, ellen, andre van velzen, and jasper faber. “a comparison between corsia and the eu ets for aviation.” https://cedelft.eu/wpcontent/uploads/sites/2/2021/04/ce_delft_7k17_finalpaper_jf.pdf schneider, lambert and nora wissner. “fit for purpose? key issues for the first review of corsia.” https://www.oeko.de/fileadmin/oekodoc/key-issues-for-first-reviewof-corsia.pdf united nations development programme. “report on corsia implications and carbon market development: assess corsia implications and carbon market development, 2022.” https://www.undp.org/sites/g/files/zskgke326/files/202302/report%20on%20corsia%20implications%20and%20carbon%20 market%20development%20%28deliverable%203.2.%29.pdf van velzen, andré. “corsia, eu ets and the eu2030 aviation emissions target, report prepared for transport and environment (t&e), report no. 18-13.” http://www.transportenvironment.org/sites/te/files/publications/20 18_09_study_cor sia_eu_ets_and_eu2030_aviation_emissions_target_final.pdf court decision european court of justice. case c-366/1 air transport association of america, american airlines, inc, continental airlines, inc, united airlines, inc v the secretary of state for energy and climate change [2011] ecr i-0000 (ataa case). https://www.europarl.europa.eu/regdata/etudes/brie/2022/698882/eprs_bri(2022)698882_en.pdf https://www.europarl.europa.eu/regdata/etudes/brie/2022/698882/eprs_bri(2022)698882_en.pdf https://dors.dk/files/media/publikationer/arbejdspapirer/2018/arbejdspapir_2018.02.pdf https://dors.dk/files/media/publikationer/arbejdspapirer/2018/arbejdspapir_2018.02.pdf https://www.europarl.europa.eu/regdata/etudes/atag/2021/690878/ipol_ata(2021)690878_en.pdf https://www.europarl.europa.eu/regdata/etudes/atag/2021/690878/ipol_ata(2021)690878_en.pdf https://cedelft.eu/wp-content/uploads/sites/2/2021/04/ce_delft_7k17_finalpaper_jf.pdf https://cedelft.eu/wp-content/uploads/sites/2/2021/04/ce_delft_7k17_finalpaper_jf.pdf https://www.oeko.de/fileadmin/oekodoc/key-issues-for-first-review-of-corsia.pdf https://www.oeko.de/fileadmin/oekodoc/key-issues-for-first-review-of-corsia.pdf https://www.undp.org/sites/g/files/zskgke326/files/2023-02/report%20on%20corsia%20implications%20and%20carbon%20market%20development%20%28deliverable%203.2.%29.pdf https://www.undp.org/sites/g/files/zskgke326/files/2023-02/report%20on%20corsia%20implications%20and%20carbon%20market%20development%20%28deliverable%203.2.%29.pdf https://www.undp.org/sites/g/files/zskgke326/files/2023-02/report%20on%20corsia%20implications%20and%20carbon%20market%20development%20%28deliverable%203.2.%29.pdf http://www.transportenvironment.org/sites/te/files/publications/2018_09_study_cor-%20sia_eu_ets_and_eu2030_aviation_emissions_target_final.pdf http://www.transportenvironment.org/sites/te/files/publications/2018_09_study_cor-%20sia_eu_ets_and_eu2030_aviation_emissions_target_final.pdf http://www.transportenvironment.org/sites/te/files/publications/2018_09_study_cor-%20sia_eu_ets_and_eu2030_aviation_emissions_target_final.pdf german environmental concerns on carbon offsetting and reduction: how it deals with european and international rules? samuel corbalán arévalo 143 website content bundesverband der deutschen industrie e.v. “stellungnahme, inception impact assessment zur initiative “revision of the eu emissions trading system directive 2003/87/ec concerning aviation.” http://bdi.eu/publikation/news/revision-euets/. darby, megan. “un aviation pact will not be aligned with paris climate goals.” http://www.climatechangenews.com/2016/10/06/unaviationpact-will-not-be-aligned-with-paris-climate-goals/ “europa geht auf konfrontationskurs zur icao.” https://www.airliners.de/europa-corsia-konfrontationskursicao/55430 german emissions trading authority. “structure of the eu ets.” https://www.dehst.de/en/european-emissionstrading/understanding-emissionstrading/structure/structure_node.html “staaten drohen mit boykott von corsia – icao-versammlung in der zwickmühle.” http://www.airliners.de/eu-boykott-unemissionshandel-zwickmuehle/52027 http://bdi.eu/publikation/news/revision-eu-%20ets/ http://www.climatechangenews.com/2016/10/06/un-aviation-%20pact-will-not-be-aligned-with-paris-climate-goals/ http://www.climatechangenews.com/2016/10/06/un-aviation-%20pact-will-not-be-aligned-with-paris-climate-goals/ https://www.airliners.de/europa-corsia-konfrontationskurs-icao/55430 https://www.airliners.de/europa-corsia-konfrontationskurs-icao/55430 https://www.dehst.de/en/european-emissions-trading/understanding-emissions-trading/structure/structure_node.html https://www.dehst.de/en/european-emissions-trading/understanding-emissions-trading/structure/structure_node.html https://www.dehst.de/en/european-emissions-trading/understanding-emissions-trading/structure/structure_node.html http://www.airliners.de/eu-boykott-un-emissionshandel-zwick-%20muehle/52027 http://www.airliners.de/eu-boykott-un-emissionshandel-zwick-%20muehle/52027 udayana journal of law and culture vol. 01 no.2, july 2017 157 the strategic role of lembaga adat negeri in the fulfilment of victims’ rights to reparation in post-conflict ambon yustina trihoni nalesti dewi* faculty of law, soegijapranata catholic university, semarang, indonesia jonathan kwik** faculty of law, soegijapranata catholic university, semarang, indonesia aholiab watloly*** department of sociology, faculty of political and social sciences, university of pattimura, maluku, indonesia 1. introduction the issue of reparations for victims of conflict in indonesia has not yet attracted significant attention on the national level. reparations are generally still viewed as privileges, instead of a legally enforceable right that victims can claim from the state. in the indonesian legal landscape, gross human rights violations committed abstract this article demonstrates the strategic position of lembaga adat negeri in the fulfilment of the long-neglected right to reparation of victims in post-conflict ambon. lembaga adat negeri was chosen as the object of analysis due to their close cultural affiliation with the ambonese society. due to the important role of lembaga adat negeri in local ambonese governance, it is argued that they can assist in absorbing local aspirations and aid the reparation process. the enactment of law no. 6 of 2014 concerning desa provides lembaga adat negeri with ever greater momentum to spearhead reconciliation based on ambonese traditional values and contribute to the peaceful transition of the divided people, in particular by way of fulfilling the right to reparation of victims. keywords: ambon, lembaga adat negeri, local wisdom, right to reparation, reconciliation. how to cite: nalesti dewi, trihoni, jonathan kwik, and aholiab watloly. 2017. “the strategic role of lembaga adat negeri in the fulfilment of victims’ rights to reparation in post-conflict ambon”. udayana journal of law and culture 1 (2): 157-180. doi:10.24843/ujlc.2017. v01.i02.p05. doi: https://doi.org/10.24843/ujlc.2017.v01.i02.p05 copyright © 2017 ujlc. all right reserved * correspondence: trihoni@unika.ac.id and trihoniharianja@yahoo.com. ** correspondence: sjhckwik@yahoo.nl. *** correspondence: aholiabwatloly@ymail.com. vol. 01, no. 2, july 2017, 157-180 158 by the state or state actors more intuitively warrant reparations when compared to violations perpetrated by fellow citizens, as for example in horizontal conflicts. it is unfortunate to say that this general position has been translated into the applicable regulations and practice, as indonesian national legislation guaranteeing the right to reparation is minimal and the knowledge of jurists on victims’ rights to reparations are lacking. this situation has irrevocably caused victims to experience difficulties in defending their rights to reparation, a problem that to this day remains relatively unsolved.1 the situation in ambon, the capital city of maluku province (the mollucas), is a telling example of legal discrimination caused by the inability of local victims to claim compensation or any form of remedy for the damage suffered during the 1999 maluku sectarian conflict. in fact, the issue of reparations to moluccan victims has, barring a few exceptions, been largely ignored. important aspects such emotional aid, reconciliation, and an effort to rekindle the segregated moluccan society have similarly received little to no attention. the limited efforts undertaken by the national government have received much criticism due to being unfocused, rife with corruption, and relatively incompatible with local needs. one reason posited for this chronic policy failure is the tendency of indonesia to utilise an overly centralised top-down approach, which ignores the already-existing societal framework available at the local level for addressing issues of recovery, reparation, and reconciliation. to fulfil this need for individual and collective reparation of ambonese victims, it is suggested in this article that the indonesian and ambonese governments need to take into consideration local wisdoms and values when considering reparative and restorative policies. as will be discussed below, local ambonese values are of significant importance for the ambonese and should play a central part in the reparation process. to address this issue, this article discusses in particular local institutions at the desa level, such as desa adat institutions (lembaga adat desa) and the crucial part they can play in fulfilling the long-ignored right of the ambonese peoples. attention is also given to the important role such agencies have fulfilled for local ambonese societies up to this point since the relatively recent promulgation of law no. 6 of 2014 on desa. this article provides a succinct contextualisation of the sectarian conflict in ambon, the many socio-political factors that functioned as its catalysts, and preliminary peace efforts made post-conflict. in addition, an overview is presented of both domestic and international legal frameworks that have been adopted to 1 supriyadi widodo eddyono & wahyudi djafar, “mendorong kebijakan pemulihan yang efektif: rekomendasi pembaruan kebijakan pemulihan bagi korban pelanggaran ham yang berat pasca-pengesahan uu no. 31/2014 tentang perlindungan saksi dan korban”, seri keadilan transisional, elsam, 1-2. the strategic role of lembaga adat negeri in the fulfilment of victims’ rights to reparation in post-conflict ambon yustina trihoni nalesti dewi, jonathan kwik, and aholiab watloly udayana journal of law and culture vol. 01 no.2, july 2017 159 address the issue of reparation, both generally and in ambon specifically. it then discusses traditional ambonese values and how they shape the ambonese mentality and social landscape since the city’s inception, and the important role they play in maintaining social cohesion in ambon. further, it discusses lembaga adat desa, specialised adat institutions which command much respect from the ambonese peoples, and the powerful potential role they can play in augmenting the national reparation effort. the article closes with a conclusion and recommendations for both local and national policy-makers. 2. result and discussion 2.1. contextualisation: the conflict in ambon ambon is the capital of the province of maluku and has long been the epicentre of culture and economy of maluku, a set of islands rich in tradition and ethnicities. despite this cultural diversity, maluku is characterized by its local philosophy of peaceful cohabitation (hidop baku bae) as a sacred concept that binds its many peoples together. throughout history, the maluku islands have primarily been known for their rich local wisdom and the dominant application of customary practices in everyday life. hidop orang basudara (living in brotherhood),2 for example, is a common customary value emphasizing the prevention of conflict and the importance of maintaining peaceful relations between the peoples of maluku. the motto hidop baku bae (living in peace) is a key aspect of hidop orang basudara which refers to a dynamic, sacral process to reconcile and reunite warring peoples or parties in conflict. hidop baku bae is a value created and maintained through continuous and consistent reinforcement by its adherents. these traditional values have, for the past centuries, been the cornerstones sustaining unity, social harmony, and solidarity between the moluccan peoples.3 the deeply ingrained importance of reconciliation and harmony had been the driving force for moluccans to actively engage as agents of peace-keeping not only within their own islands, but neighbouring regions as well. ambon, the capital city of maluku since 1576, is a port town, a centre of trade, and a city of migrants.4 ambon is a multi-ethnic town with inhabitants from varying ethnic, religious, and traditional backgrounds, and it too inherited these customary maluku values. ambonese immigrants originated from a multitude of regions, both inside and outside of indonesia, creating a pluralist ambonese society of ambon chinese, ambon portuguese, ambon arabs, ambon dutch, ambon javanese, ambon 2 aholiab watloly (i). maluku baru, bangkitnya mesin eksistensi anak negeri (yogyakarta: kanisius, 2005), 211-214. 3 aholiab watloly, ‘bacarita sejuta rasa’ in jacky manuputty, et al. (eds.), carita orang basudara (ambon: lembaga antar iman maluku, 2014), 377 – 384. 4 lisa taschler, “justice in maluku: formal and informal justice processes and their role for reconciliation in the aftermath of the 199 – 2002 conflict”, groningen, noha, 3. 160 batak, ambon bugese, ambon manadonese, and many others.5 these migrant groups subsequently established their own communities in ambon, giving rise to chinese, arabic, javanese, timor, toraja, bogor, tepa, kisar, and other districts. it is important to note that these migrant groups identified themselves not merely based on their original ethnic group, or as merely being ambonese, but both simultaneously, in a so-called cross-cutting affiliation. this brief view into the formation of the city of ambon emphasizes that ambon, since its inception, had been a pluralistic culture which had always been open and welcoming to migrant settlers.6 in 1999, however, this peace was shattered when the maluku sectarian conflict erupted. the first spark was lit by a political rivalry between ambonese gangs in jakarta, during the transition from the authoritarian regime of suharto to the current one. these tensions spread to ambon and triggered the first conflicts in january 1999. a relatively small incident between muslim and christian youths during the feast of eid in batumerah triggered a widespread and rapidly expanding the conflict.7 the nature of the ambonese society, which had been segregated based on ethnic and religious districts, fuelled the ongoing conflict. circulating rumors concerning attacks on religious sites, such as the destruction of the protestant silo church and the burning of the al-fatah mosque, turned the two major religious groups of muslims and christians against each other. the collectives started identifying themselves by using headbands – white for muslims and red for christians – and grouped together to attack, kill, and exterminate members of the opposing faction. christians criticized the indonesian military personnel stationed in ambon for taking no action to stop the conflict. instead of preventing further conflict, indonesian national army (tni) units from outside of ambon and maluku were deemed to discriminate in favour of the muslim forces and were accused of joining the muslims in slaughtering christians.8 eventually, ideas of an ethnic and religious genocide of moluccan christians surfaced and circulated via printed and electronic media.9 at first glance, the conflict in ambon can be viewed as a purely religious one – that of muslims against christians. a holistic view of the situation, however, suggests that historic, cultural and political factors also played a decisive role in sparking and propagating the conflict. this can be noted from the propaganda spread by the christian communities during the conflict. ‘indigenous’ moluccan christians, which 5 the term ‘ambonese’ refers to a cosmology of self through which ambon becomes an intrinsic part of the ‘inhabitants’ collective self-image, beliefs, and ideals. as such, the term ‘ambonese’ can be interpreted as a sociological description of a collective group of peoples inhabiting a common territory which they had built up together. 6 aholiab watloly, “gambaran umum kota ambon”, manuscript presented to the desain ruang publik berbasis kearifan lokal kota ambon fgd, ambon, october 2016, 2-4. 7 c.j. böhm, “brief chronicle of the unrest in maluku,” crisis centre diocese of amboina 2006, unpublished, 11. 8 ibid., 11-12. 9 tamrin amal tomagola, cornelis lay, lies marantika, ricky palijama & yusup madubun in eddy o.s. hiarij (ed.), format ulang birokrasi kota ambon (makasar: ininnawa, 2008), 17. the strategic role of lembaga adat negeri in the fulfilment of victims’ rights to reparation in post-conflict ambon yustina trihoni nalesti dewi, jonathan kwik, and aholiab watloly udayana journal of law and culture vol. 01 no.2, july 2017 161 had traditionally been the majority population in maluku and were common holders of important administrative and bureaucratic positions in central, south, and southeast maluku, felt threatened by the gradual demographic shift brought upon by the influx of muslims post-1965. many of these new inhabitants were javanese muslim political prisoners accused by suharto’s new order of collaborating with the communist party (pki), who eventually chose to remain in ambon after their release. muslims also arrived by virtue of the new order’s transmigration policy, in particular from the muslim-dominant buton, bugis and makassar regions of indonesia, in addition to migrants who moved to ambon out of their own initiative.10 initially, the ‘indigenous christian ambonese’ welcomed the muslim migrants with open arms, as the newcomers only took part in low-wage manual labour.11 eventually, however, the muslim immigrants became more educated and started to occupy important government and bureaucratic positions.12 the immigrants’ success in economy and commerce became further threats to the ‘indigenous christian ambonese’ who were content with the status quo.13 ambonese christians felt further threatened by the creeping islamisation of national indonesian politics, going so far as to suggest that indonesia might transition into an islamic or sharia state.14 the increasing influx of immigrants also eroded the hidop orang basudara value traditional ambonese were so attached to. this demographic shift caused a curious change in allegiances: whereas originally, ambonese muslims felt more aligned to their ethnically similar ambonese christian peers, the arrival of outside muslims induced the ambonese muslims to support the immigrants instead, in opposition to the ambonese christians. in effect, the ethnic bonds in ambon had been replaced by religious ones. the christians, who felt betrayed and deserted by their ambonese muslim brethren, found themselves without support in face of the growing threat posed by the ambonese muslims and immigrants.15 from the muslim side, propaganda was fuelled mainly by reference to the social and political marginalisation they suffered for centuries since the dutch colonial rule. the muslims perceived that during the colonial era, the ambonese christians had always received powerful political and educational opportunities from the dutch colonial rulers. ambonese christians were also given special treatment by the colonizers, who regarded them as ‘upper-class citizens’, as part of the dutch devide 10 böhm, op.cit., 12. 11 ibid., 12 ibid., 13 ibid., 14 ibid., 15 ibid., 162 et impera policy.16 suspicion was also directed at the christians for not supporting the indonesian unitary republic (nkri). the muslims were convinced that during the war of independence in 1945-1949, many christians had supported the royal dutch indies army (knil).17 in fact, until this day, many ambonese muslims hold the belief that ambonese christians are part of the moluccan separatist movement rms (republik maluku selatan). this unfounded perception ignores the fact that ibrahim ohorella, muslim raja of tulehu, had hosted numerous rms meetings, directed his subjects to attend an rms proclamation of independence in ambon, and stockpiled sago rations for the rms armed forces before tulehu was occupied by the tni.18 one can interpret the muslim sentiment, fuelled by social envy in the past, as a false assumption that opposing ambonese christians is a form of solidarity to all muslims in indonesia. as such, indigenous ambonese muslims in north ambon easily chose for the above-mentioned ‘religious alliance’ over the ethnic one.19 studies suggest that the conflict and violence occurring in maluku was not self-contained. the humanitarian tragedies in maluku were systematically incited and propagated by the agendas of military and political leaders in jakarta, who wished to protect their political and economic interests.20 the intensity of the conflict was maintained by repatriating a number of ambonese gangs who had resided in jakarta for an extended time, and whose gang rivalry and mentality continued to infect the local ambonese peoples.21 the conflict further escalated with the sending of laskar jihad members from java to maluku.22 due to the introduction of these foreign elements into maluku, the conflict continued to persist and escalate over a lengthy period of time. from january 1999 to october 2002, an approximated 15.000 individuals were reported dead and 8.000 injured, and 187 schools, 103 public offices, 39 medical facilities, 13 hospitals, 23.600 houses, and 144 churches and mosques reported destroyed or burned. the harrowing situation displaced 425.679 people, 80.686 of which were forced to leave their native districts.23 refugees were forced to seek shelter in schools and religious sites. during this time, ambon segregated even further, with civilians grouping together almost exclusively by religion, creating an increasingly deeper rift in normal societal life. civilians became accustomed to a life where markets, schools, hospitals, 16 tamrin amal tomagola, op.cit., 27. 17 böhm, op.cit. 18 richard chauvel (dissertation) in george j. aditjondro, “orang-orang jakarta di balik tragedi maluku,” http://www.michr.net/orang-orang-jakarta-di-balik-tragedi-maluku.html. 19 böhm, op. cit., 12-13. 20 chauvel, op.cit. 21 ibid. 22 ibid. laskar jihad literally translates to ‘warriors of jihad’, and is an islamist and anti-christian militia movement whose primary goal is the implementation of sharia law in indonesia. 23 anonymous, “refugees of maluku and north maluku and their problems,” background paper for lobbying material, session of un commission for human rights at the agenda of internally dispacled people in the region of maluku and north maluku, april 2003, unpublished, 1. the strategic role of lembaga adat negeri in the fulfilment of victims’ rights to reparation in post-conflict ambon yustina trihoni nalesti dewi, jonathan kwik, and aholiab watloly udayana journal of law and culture vol. 01 no.2, july 2017 163 offices, commerce, routes of transport, and entire populations were segregated by the firm line of muslim versus christian. a notable recorded exception is the military camp halong, which featured a mix of muslims and christians among its 9.000 inhabitants. it is in halong in particular where it was found that refugees, in contrast to other regions at the time, co-existed peacefully and even built a bond of mutual cooperation and assistance with each other.24 many efforts to resolve the conflict and provide humanitarian aid had been attempted by the central government, regional government, and religious leaders. international organisations focussed primarily on humanitarian support; unfortunately, operations were not coordinated with the local government, leading to the inefficient distribution of aid. refugee policies were criticized for alleged discrimination and being a façade for hidden agendas. both religious communities believed that the central government and international organisations, such as un agencies and ngos, were partial. these accusations eventually led to the burning of the united nations project coordination office on 25 april 2004, which supposedly was being used by ‘scheming western states’ to support separatist movements and as an asylum for traitors and enemies.25 during this time, the central indonesian government was undergoing a transition from a centralised to a decentralised system on a national scale. as the transition of power from jakarta to regional governments was incomplete at the time, jakarta was still regarded as the prime initiative holder for the resolution of the moluccan conflict. this limited the local bureaucracy’s power to take an active role in the moluccan reconciliation process. the peace efforts which led to the first malino declaration in poso, sulawesi, on december 2001, and the second malino declaration in maluku on february 2002, were the first structural attempts by authorities to end the conflict. although indisputably the starting point of the broader long-term reconciliation process,26 the absence of any local participation during the preparation and signing of these two peace agreements inevitably led to the drafters being unable to properly take into account local needs and wants. instead, they only focussed on the structural causes of the conflict.27 the declarations merely touched upon material reparations, reconstructions, and emergency aid for refugees. at that time, the peace process was progressing slowly and cautiously. the indonesian word damai (peace) was considered a taboo word, and those who used 24 böhm, op. cit., 13. 25 tamrin amal tomagola, op. cit., 17. 26 cate buchanan (ed.), “pengelolaan konflik di indonesia – sebuah analisis konflik di maluku, papua dan poso, lembaga ilmu pengetahuan indonesia,” current asia and the centre for humanitarian dialogue, geneva 2011, 11. 27 ibid. 164 the term were instantly labelled as enemies and traitors by their communities.28 amidst such difficulties, seeds of reconciliation could be nevertheless found sprouting throughout the region. for example, the tim 20 (team of twenty), a small group consisting of ten muslims and ten christians in the village of wayame, made diligent efforts to retain peace between muslim and christian communities based on the traditional hidop baku bae mantra, and underlined that the conflict was not one of religion against religion. they verified the truth of all possible provocative messages or information, and established local rules forbidding civilians from taking part in confrontations, abusing religious symbols, consuming alcohol, or spreading hateful comments about any religion. the tim 20 also established a market that accessible to both muslims and christians. this harmonious effort by both religions safeguarded the village’s economy during the conflict erupting around wayame. later, the hidop baku bae peace movement succeeded in reuniting many warring parties around a common identity as mutual victims of conflict first and foremost.29 from this small movement, large-scale reconciliation efforts surfaced throughout ambon, based on initiatives by scholars, ngo activists, journalists, local leaders, and religious figureheads. it is interesting to note that, unlike the indonesian word damai, moluccans were accepting and welcoming of the phrase hidop baku bae as a motto for peace, even though the two terms carry virtually identical meanings.30 the maluku media centre (mmc), which accepted both muslim and christian journalists, trained journalists to spread ideas of pluralism and to avoid publishing any provocative messages. equally crucial were the efforts made by ambonese women, whose accomplishments were one of the most important steps taken during the peace process. female ambonese refugees, mutually concerned for the well-being and future of their children, the scarcity of food, education, health services and other basic needs, and the distribution of emergency aid to refugees, hosted crossborder meetings involving both muslims and christians. these meetings served as a medium for reconciliation between muslim and christian families and as a starting point for discussions between the religious groups. this interaction also enabled the ambonese women to be better informed and subsequently prevent provocative actions from either side by acting as diplomats and messengers for both groups.31 the conflict in maluku not only caused the widespread loss of lives and property, but also impacted long-term societal health. the moluccan economy and commerce stagnated, leading to a large decrease in welfare and increases in unemployment. education was dramatically impacted by the conflict: the displacement of many 28 ibid., 23. 29 buchanan, op.cit., 13. 30 aholiab watloly et al (ii)., perdamaian berbasis adat orang basudara (yogyakarta: kanisius 2016), 39. 31 ibid., 23. the strategic role of lembaga adat negeri in the fulfilment of victims’ rights to reparation in post-conflict ambon yustina trihoni nalesti dewi, jonathan kwik, and aholiab watloly udayana journal of law and culture vol. 01 no.2, july 2017 165 teachers and lecturers along with their respective students and the systematic burning of schools threatened the well-being of moluccan generations to come. other societal harms incurred include the shutdown of all public and administrative services, including healthcare and the supply of medicine to maluku.32 2.2. reparations in ambon: the current international and domestic legal framework although some efforts had been made, during and shortly after the conflict, to provide compensation for losses and to support orphans whose parents were killed during the conflict, a comprehensive compensation scheme aimed specifically at survivors and victims or their families has yet to be established in maluku. current efforts can be said to be grossly insufficient compared to contemporary international standards concerning the rights of post-conflict victims to an effective remedy. the duty of each state to provide effective remedies to victims, including reparation, is a norm firmly established through international human rights instruments and was underlined on 16 december 2005 by the un general assembly through resolution 60/147, wherein it “honour[s] the victims’ right to benefit from remedies” and “keeps faith with the plight of victims, survivors and future human generations”.33 remedies in international law are comprised of the right to know,34 the right to justice,35 and the right to reparation, the last of which are subdivided into restitution, compensation, rehabilitation, and satisfaction and guarantees of non-recurrence.36 international norms also prescribe that such procedures must be effective and available to all victims seeking a remedy.37 as explored briefly above, remedies in ambon, unfortunately, remain inadequate, at the expense of all victimised peoples still awaiting an effective redress. international developments on rights to reparations are sometimes cited as being inadequate in certain aspects, in particular from a practical point of view. state responsibility for violations occurring in times of conflict is more often ignored, in favour of a focus on gross human rights violations. this is unfortunate, as this lack of attention can have negative influences on victims’ capacity to recover after a conflict. reparations are an integral part of transitional justice, noting in particular that justice cannot be attained without providing justice to victims, as well. examples 32 kpp ham, laporan komisi penyelidik pelanggaran hak asasi manusia dan mediasi di maluku (2000) http://www.oocities.org/toelehoe/komnasham290305.htm. 33 see general assembly of the united nations (unga) res a/res/60/147 (16 december 2005), annex, § 3(d) and preamble para. 11. 34 see e.g. diane orentlicher, updated set of principles for the protection and promotion of human rights through action to combat impunity (8 february 2005) e/cn.4/2005/102/add.1, principle 2. 35 see e.g. ibid., principles 1 and 19. 36 unga res 60/147, op. cit., annex, § 18. 37 ibid., §§ 2(c) and 12. 166 from state practice show that implementation of these norms is challenging. in indonesia, follow-ups to recommendations from the truth commission are often ignored and do not satisfy victims. in sierra leone and guatemala, compensation is given only to ex-guerrilla fighters, not victims of the conflict. at the international level, international criminal tribunal for the former yugoslavia (icty) and international criminal tribunal for rwanda (ictr) procedures acknowledge the right of victims to restitution, but only with respect to victims of property damage, and not to victims of genocide and torture. simultaneously and paradoxically, these international tribunals continued to emphasise their high standards of protection for the rights of the accused. it is difficult to say that justice has been served when the human rights of the perpetrators are upheld, but not those of the victims.38 indonesian reparation beneficiaries are limited to victims of gross human rights violations, and even then, accesses to these remedies are often difficult or unattainable in practice. current national norms on reparations provide a single form of reparation for victims: compensation from convicted perpetrators as part of a criminal procedure.39 the lack of political willingness from the state for reparations is compounded by the absence of a clear and coherent framework that is consistent with international standards. the issue is exacerbated further by the requirement that cases containing elements of human rights violations are referred to special human rights courts (pengadilan ham), which do not function effectively, as was the case with respect to the court-ordered reparations during the tanjung priok cases. here, the court found the defendants guilty and ordered them to pay 1.15 billion rupiah (approximately $110,000) to family members of 13 victims.40 however, when the conviction was overturned on appeal in 2005, the supreme court rejected the prosecutor’s appeal against this decision, stating that the massacre did not constitute a human rights violation, therefore the court order for reparations was cancelled.41 the indonesian body for the protection of witnesses and victims (lembaga perlindungan saksi dan korban or lpsk) has also received critique for its inefficiencies, caused by an overreliance on procedures and formalities. in addition, the lpsk is burdened with limited funding. one method that has recently been applied to overcome these shortcomings is by shifting the focus of reparations from a centralized 38 johanna herman, “the right to reparation in international law for victims of armed conflict” (book review) nordic journal of human rights 33, no. 2 (2015): 190-191. 39 supriyadi widodo eddyono & zainal abidin, memastikan pemenuhan hak atas reparasi korban pelanggaran ham yang berat (jakarta: institute for criminal justice reform, 2016), 13-16. 40 putusan no. 01/pid. ham/ad hoc/2003/pn.jkt.pst atas nama sutrisno mascung, dkk, 20 agustus 2004, 143-145, 148. 41 ictj, ikohi & kkpk, “indonesia’s obligations to provide reparations for victims of gross human rights violations,” (december 2011) policy briefing, https://www.ictj.org/sites/default/files/ictjindonesia-reparations-policy-briefing-2011-english.pdf. the strategic role of lembaga adat negeri in the fulfilment of victims’ rights to reparation in post-conflict ambon yustina trihoni nalesti dewi, jonathan kwik, and aholiab watloly udayana journal of law and culture vol. 01 no.2, july 2017 167 framework to a decentralized one; in other words, by relying increasingly on initiatives from local governments and agencies. this shift is often celebrated, as local bodies are generally more knowledgeable about the specific needs of local groups, in particular, their culture and problems, due to their closer proximity to the people. an example of such local initiative is that of the palu local government in central sulawesi for victims of human rights violations made in 1965, during and after the alleged communist coup: this initiative, formalized through decree no. 25 of 2003 of the mayor of palu, provided a mandate for the government of palu to gather and verify data on gross human rights violations occurring in palu during the period of 19651966, which approximately involved 768 victims. almost all of these victims were found to be from a relatively lower economic class, which meant that this local initiative and the subsequent reparations programmes were of great benefit to them. amongst others, victims received financial support, health insurance, and education scholarships as part of the programme. the restoration of the dignity, honour and reputation also provided opportunities for victims to start their lives a new, free of any discrimination and stigmatisation.42 moving on from palu as an inspiration and an example that local initiatives have clear and tangible merit infulfilling victims’ rights to reparation, we turn to ambon. similarly, ambon will benefit from the decentralization of policies to local governments and authorities. this concept is theoretically supported in law, as the national law on desa (undang-undang desa) acknowledges the capacity and right of desa to play an active role in the resolution of conflict, although no specific provisions are given as to how the desa can apply this mandate. nevertheless, governmental institutions of these desa can be further encouraged to allocate more attention and funding to the issue of reparations for victims of conflicts, as the issue of conflicts and reconciliation are important elements in current day ambonese societies; in fact, one might say it is one of the points of priority in the ambonese agenda. the fulfilment of the right to reparations is an integral part of successful reconciliation efforts, including in ambon. in 2003, a large reconstruction initiative for maluku and north maluku was launched through presidential decree no. 6 of 2003 involving an approximate budget of 1 trillion rupiahs. unfortunately, this effort focused solely on physical reconstruction of buildings and infrastructure, and did not touch upon individual or collective reparations of victims.43 the programme was also criticized for its lack of effectiveness, due to unclear accountability regimes and the lack of transparency 42 prima gumilang, “kisah wali kota pelaku tragedi 1965 minta maaf ke korban” cnn indonesia (30 juni 2016) http://www.cnnindonesia.com/nasional/20160630112959-20-142052/kisah-wali-kotapelaku-tragedi-1965-minta-maaf-ke-korban. 43 current asia & the centre for humanitarian dialogue, june 2011, “pengelolaan konflik di indonesia – sebuah analisis konflik di maluku, papua dan poso, lembaga ilmu pengetahuan indonesia,” https://www.hdcentre.org/wp-content/uploads/2016/07/64bahasaindonesiaversion-june-2011.pdf, 26 – 29. 168 in budgeting, which was, in turn, speculated to have encouraged corruption.44 the handling of ambonese refugees was also criticized for not being based on actual empiric data or reliable information. since 1999, the maluku government employed a working group aimed specifically at refugees, in coordination with the indonesian national board for disaster management and refugees (bakornas pbp). however, only 10.000 of approximately 64.000 affected households received aid from this board, due to lack of data and corruption.45 the approach taken with respect to refugees was almost strictly aimed at rebuilding and physical reconstruction, while equally important–or some might say even more crucial – aspects such as the rebuilding of trust between local inhabitants were given minimal attention.46 as a result, many displaced persons and families were hesitant to return to their homes due to traumas, painful memories associated with their old homes, and the fear that new conflicts or even open hostilities might arise. conversely, some families voiced their eagerness to return home, only to be rejected by the (new) local inhabitants. issues also arose with regards to verification of claims from people who wished to ‘return’ to ambon, ostensibly because they were displaced by the conflict. it was difficult to distinguish those who genuinely had been victims of the conflict from those who only pretended to be, in order to receive land and monetary aid from the state. these issues illustrate a clear and pressing need for accurate and reliable data, ideally collected not from a centralized agency but from the local communities or villages, locally termed desa. thus, we believe that local institutions at the desa level can play a strategic role in the fulfilment of the victims’ rights to reparation, and that this role should be expanded upon and supported. this can be done through inter alia the lembaga adat desa. the lembaga adat desa is a local body established as a companion to the local government and plays a role in applying adat laws and aiding the government in developing and sustaining local customs.47 the recent adoption of a law codifying the legal basis and competences of the lembaga adat desa (law no. 6 of 2014 on desa) provides these institutions with an official legal mandate to take up the task of coordinating reparation efforts. the law can be interpreted as the central government’s recognition of and support to the importance of local values. in this new law, local customs are given great emphasis and are viewed as crucial input factors for future rebuilding plans.48 this is a logical step to take, considering above 44 ibid., 273. 45 ibid. 46 jon goss, “understanding the maluku wars: overview of sources of communal conflict and prospects for peace,” cakalele 11, no. 7(2000): 7. 47 law no. 6 of 2014 on desa, article 95. 48 ibid., 273. the strategic role of lembaga adat negeri in the fulfilment of victims’ rights to reparation in post-conflict ambon yustina trihoni nalesti dewi, jonathan kwik, and aholiab watloly udayana journal of law and culture vol. 01 no.2, july 2017 169 all that the peoples of ambon will be the primary executors and beneficiaries of such policies. in the context of customary law, the lembaga adat desa can maintain its intended function as a guardian and overseer of adat law in ambon, whilst in the context of reparative measures, the lembaga adat desa can take up a coordinating role to ensure that reparative policies align with the needs, wants and values of local ambonese peoples, in particular, those of the victims to whom the reparations are addressed. 2.3. local wisdom as a basis for reparations programmes and policies societal and legal life in maluku is still heavily influenced by local customary law, which more commonly known in legal anthropology using its native term adat. traditionally, moluccan society is divided into smaller autonomous entities (negeri adat) based on adat law, each governed by their respective leaders (raja or king). this led some to describe maluku as a ‘land of kings’ (negeri raja-raja).49 important to note here is the plural use of ‘kings’, emphasising that maluku is comprised of many coexisting negeri (‘states’). each negeri is characterised by its respective claim to authority according to adat law, it’s own history, customary norms, tradition, and territory.50 simultaneously, however, they are bound together by common beliefs and mutual respect through the traditional philosophies of pela and gandong.51 this social framework had been the basis for the moluccans to embrace their commonalities through a shared identity as orang basudara (brothers and sisters).52 this identity is often cited as the most important component to understanding the maluku peoples existence and traditions.53 the philosophy of orang basudara is not based on a foundation of an ‘i-and-you’ mentality (aku dan engkau), but rather one of ‘i-and-me’ (aku dan diriku), which results in a collective way of thinking, ingenuity, and common sense (akal budi kolektif ).54 the close bonds formed by pela and gandong compels the maluku peoples to live in a social structure of mutual respect and love, akin to that between brothers and sisters, which is often referred to as bae-bae orang basudara (peaceful coexistence and mutual love and empathy).55 katong samua orang basudara (we are all brothers and sisters) is a key phrase and a direct product of the hidop orang basudara (living in brotherhood) mentality. 49 watloly in jacky manuputty, et al. (eds.),loc.cit. 50 ibid. 51 pela (best translated to familial bonds) are deeply ingrained relations of mutual goodwill and friendship with common history and a tradition of peaceful coexistence as its foundation, leading to a commitment to live together in harmony, governed by agreements and declarations made binding by adat law. gandong are ties and relations built from a genealogy continuously passed from one generation to the next, governed by adat law. 52 karel albert ralahalu. berlayar dalam ombak, berkarya bagi negeri: pemikiran anak negeri untuk maluku (ambon: ralahalu institut, 2011), 246-247, 261, 263. 53 watloly in jacky manuputty, et al. (eds.), op. cit., 366-368. 54 aholiab watloly, “gambaran umum kota ambon”, op.cit.,7. 55 ibid. 170 in past times, this phrase, alongside many others, contained a sacred and traditional weight. currently, there are attempts to once again invoke the mentality to heal the shattered and divided maluku. in the absence of this hidop orang basudara mentality. in past times, this phrase, alongside many others, contained a sacred and traditional weight. currently, there are attempts to once again invoke the mentality to heal the shattered and divided maluku. in the absence of this hidop orang basudara mentality or ‘cosmology’ and the derivative katong samua orang basudara, it has been shown that the maluku society is unable to maintain its pluralist and accommodating nature.56 no incident in maluku’s history establishes this better than the sectarian conflict. the mantra katong samua orang basudara allowed the culturally diverse maluku peoples to establish a strong common identity or belief that was the foundation for their collective building and development of the greater moluccan society. katong samua orang basudara gave all groups a sense of belonging, empathy, and social involvement: that in life, the most important thing for one (beta) is to look after the well-being of another (ale). this core morality of ale rasa-beta rasa (what you feel, i feel) contains both subjective (mental or emotional) and objective (physical, through deeds) elements.57 it becomes an essential part of the moluccan mindset, attained and developed since birth through both education and social interactions.it has the capacity to grow and develop into a common mentality or morality, and lead to shared experiences through deeds and interactions which strengthen the bonds between the peoples.58 the mental element of ale rasa-beta rasa in the hidop orang basudara mentality embeds itself in the moluccan peoples’ lives through moral values such as truth, honesty, justice, goodwill, and social cohesion.59 such common values are enriched further by each individual’s own senses of morality, care, and love. these mental components are expressed and given form in everyday life, through interactions and good deeds towards fellow moluccans. although some differences may be found between each individual, based on their own adat traditions and personal values, the hidop orang basudara values held by all moluccans function as a commonality ensuring mutual respect and care.60 the objective element of ale rasa-beta rasa, on the other hand, has been recorded through social and empirical studies in maluku. expressions and interactions 56 soumokil tontji. reintegrasi sosial pasca konflik di maluku (universitas kristen satya wacana, 2011). 57 ibid. 58 watloly (ii), op. cit., 83-85. 59 ibid., 366-368. 60 ibid. the strategic role of lembaga adat negeri in the fulfilment of victims’ rights to reparation in post-conflict ambon yustina trihoni nalesti dewi, jonathan kwik, and aholiab watloly udayana journal of law and culture vol. 01 no.2, july 2017 171 using the mantras hidop baku bae and hidop orang basudara throughout maluku’s history continually mark the invocation of these local values, and prove that they are imbedded firmly in the social mindsets of the moluccan people. it has been cited that hidop orang basudara provides moluccans with a love for wisdom, a love for knowledge, and a love for peace. it has become a way of life and a ‘primordial sentiment’ that has become identical to the moluccan tradition as a whole.61 as a consequence, members of moluccan society who fail to grasp this local wisdom lose their connection with the moluccan traditions and social framework, and it has been said that they, in turn, are less capable of adapting and embracing the general trend towards modernisation and globalisation. the loss of this local wisdom and philosophy reduces their opportunity to produce local-grown ideas and innovations. more importantly, the loss of these traditional values negatively impacts these individuals’ character building and societal welfare in a changing world, in indonesia in general and maluku in particular. the value of hidop orang basudara for local harmony and peace, as well as societal health, in maluku is guarded and maintained by each individual negeri in ambon. each negeri propagates their own traditional values from one generation to the next in a hereditary fashion, making everyone a so-called anak adat (child of adat). these shifting generations are coordinated and preserved by adat assemblies referred to as soa. although each soa is characterised by the particular adat traditions of their respective negeri, they have always remained open and welcoming towards migrants from other negeri or even from other islands.62 the new comers, who arrive, settle, and integrate into new negeri are locally coined orang dagang (people of the trade).63 as a form of good will towards these orang dagang, migrant settlers are provided formal recognition and a status according to local adat law and their own soa and adat frame works, to accommodate their different background.64 pela and gandong and the philosophy of hidop orang basudara and its derivatives – hidop baku bae and katong samua orang basudara – has been entrenched firmly in the hearts and minds of the moluccan peoples, into a social harmony, and has become a driving force for culturally diverse peoples to embrace peace and meaningful cooperation.65 it has functioned this way for centuries, and there is little doubt that it can once again become the driving force for the reunification of a now divided ambon.66 61 ibid. 62 ibid. 63 ibid. 64 ibid. 65 ibid., 3-6, 107-112; watloly (i), op. cit., 4. 66 diah kusumaningrum, “interdependence versus truth and justice: lessons from reconciliation processes in maluku” (2016) vol.20/no.1 jurnal ilmu sosial dan ilmu politik 34, at 39. 172 2.4. potential of lembaga adat desa in the fulfilment of the right to reparation as alluded to above, ambonese refer to desa adat – communities with distinct legal and social identities, each with its unique adat law norms – as negeri.67 indonesian provisions on negeri provide that each negeri can establish specialised institutions called lembaga adat negeri (local variants of lembaga adat desa), which function under the local government and are responsible for all social and legal functions related to adat law in the relevant negeri.68 these lembaga adat negeri become the primary outlet for adat communities to develop and enforce their local adat laws. through lembaga adat negeri, adat law norms are implemented and legal traditions, such as pela, gandong, badati, masohi, and maano, are nurtured. the influence of lembaga adat negeri is felt most significantly with respect to situations of conflict resolution, infringements of adat law, and adat litigations. despite the fact that prevailing adat law does not affirm lembaga adat negeri as autonomous institutions so much as a normative expression of social values, one tends to observe a high degree of obedience to judgments, decisions, and sanctions imposed through adat law. compared to judicial rulings offered by state institutions (i.e., through the framework of national indonesian law), dispositions based on adat law are more readily respected and accepted as binding by the local population.69 in light of the importance of lembaga adat negeri for the local populace, there is clear untapped potential for the lembaga adat negeri to play a role in facilitating claims from victims of conflict to receive reparations, both on an individual basis and through collective claims. collective reparation can be achieved by the lembaga adat negeri due to its authoritative position as the primary forum for adat law claims and discussions, and its position as a social mediator and arbitrator. given that the lembaga adat negeri are closely related to local traditions and values, any potential these lembaga adat negeri may hold in resolving the issue of reparation must be supported and reinforced by the principles of hidop orang basudara. the value of choosing this local philosophy as a starting point must not be underestimated: as explained above, hidop orang basudara is a common norm that has bound the many peoples of maluku together in friendship and harmony in the past. this starting point, which is by nature communal or collective, does not mean that individual needs and claims will not be entertained; rather, it is merely a stepping-stone to a truly holistic fulfilment of the right to reparation, including 67 negeri is defined in regional regulation no. 8 of 2017 of the city of ambon as units of society with clear territorial borders, governed by adat law, which are granted autonomy to govern their own peoples subject to overriding norms of indonesian national law; see article 1(12). in 2016, twenty-five negeri were recorded in ambon, divided over five districts: latuhalat, seilale, nusaniwe, amahusu, soya, batumera, hative kecil galala, laha, tawiri, hative besar, rumatiga, poka, hunut durian patah, passo, halong, naku, kilang, ema, hukurila, hatalai, rutong, and laehari. 68 regional regulation no. 8 of 2017 of the city of ambon, article 79. 69 timo kaartinen, “perceptions of justice in the making: rescaling of customary law in post suharto maluku, indonesia,” the asia pacific journal of anthropology 15, no. 4 (2014): 334. the strategic role of lembaga adat negeri in the fulfilment of victims’ rights to reparation in post-conflict ambon yustina trihoni nalesti dewi, jonathan kwik, and aholiab watloly udayana journal of law and culture vol. 01 no.2, july 2017 173 individual rights. collective reparation contributes positively to reconciling conflict-torn communities by establishing a sense of mutual forgiveness and brotherhood within the population.70 the newly adopted law no. 6 of 2014 on desa can be a tool to restore the confidence of the people of maluku in reconciliation efforts. this law was subsequently implemented in ambon through regional regulation no. 8 of 2017 of the city of ambon. this regukation provides a powerful legal basis for the negeri in ambon which were expected to become more actively involved in restoration efforts. in this regard, lembaga adat negeri functions as a complementary body to the negeri government by aiding local authorities in empowering, developing, and propagating adat law, and by formally recognising the important role adat law and traditions play for the local communities of each negeri.71 with regards to the specific situation in ambon, each negeri in ambon has its own governmental framework, with specific positions and bodies.72 a negeri is governed by the raja, saniri rajapati, saniri negeri and saniri besar.73 this traditional structure of governance has existed in ambon for centuries. however, as a result of the political shift brought upon by suharto’s new order regime, in particular through law no. 5 of 1979 on desa governments (pemerintahan desa), the role of the lembaga adat negeri was drastically reduced. the imposed uniformity in the local governance framework weakened the lembaga adat negeri significantly, rendering it no longer capable of effectively performing as a forum of communication between the local communities and as a forum for the settlement of disputes and societal problemsolving. the following are examples of the deteriorating effects of the law on lembaga adat negeri. traditionally, formal proceedings of dispute resolution, reconciliation, and mediation were conducted before the saniri rajapati.74 issues could involve, for example, land and family conflicts. the saniri rajapati functioned as forums to 70 taschler, op. cit., iii. 71 law no. 6 of 2004 on desa, article 95. 72 regional regulation no. 3 of 2004 of the city of ambon. 73 the soa is an assembly attended by several matarumah (organisations of people with a common genealogical background), based on common territorial and genealogical roots. soa parenta are matarumah which, according to local adat law, are assigned the leading and coordinating role for discussions and meetings between local mata rumah. in addition to negeri, important terms with regard to ambonese adat law are kampong and petuanan. petuanan refers to the land or territory which is recognised as belonging to a specific negeri, while kampong refers to the society and peoples who inhabit a given petuanan. the saniri besar is an open assembly attended by all members of the saniri negeri and all adult members of the saniri rajapati (the executive governmental branch), for the purpose of public announcements and reports concerning policies taken by the negeri government. these policies can encompass public works, administrative issues, and public services. 74 ronald alfredo, “lembaga adat “saniri” sebagai forum komunikasi dalam penyelesaian masalah publik di ambon,” jurnal komunikasi kareba 1, no. 3 (2011): 335. 174 discuss, debate, and map issues brought before them, and subsequently issued decisions based on these considerations. these decisions were executed by the raja, the head of the negeri, who contributed to local dispute resolution in accordance with prevailing laws and customs. these executing decisions from raja were traditionally obeyed and perceived as binding by local societies.75 as such, ambonese society had a functioning and authoritative means to resolve any social and legal issues through its own adat institutions. the law of 1979 stripped away these competencies and instead imposed forums based on national law for local communities to utilise, which did not resonate as deeply as the firmly entrenched adat law-based ones. in addition, the more coercive nature of litigation through national courts, in sharp contrast with adat law litigations which emphasised harmony and reconciliation, played a role in deteriorating traditional ambonese values. saniri negeri is legislative bodies consisting of soa representatives, heads of adat law, elders, representatives of the labour force, kewang, and other parties which assist the negeri government in drafting and adopting laws for the negeri. previously, it assisted raja in performing their duties and filled a supervisory role, and was responsible for protecting local customs and adat law.76 the law of 1979 removed its function from the public sphere and instead replaced it with a so-called village council (lembaga musyawarah desa). the law of 1979 was very restrictive on local governance and provided little flexibility to deviate from the governmental structure it proscribed. this strict uniformity weakened or even nullified many pre-established frameworks and local expressions of democratic participation. this law remained in force for 34 years and effectively killed the diversity of many adat communities in indonesia, and made adat law-based governance impossible to sustain. although an alternative council was established later through national law to replace the adat law institutions, it failed to achieve de facto legitimacy in the perspective of the local citizens, many of whom rejected the council due to their membership not being comprised of soa representatives.77 efforts to revitalise the traditional adat framework gained renewed momentum with the enactment of law no. 32 of 2004, which officially recognised the legal standing of the adat society.this once again opened an opportunity for lembaga adat negeri to retake its original place as a forum for local dispute resolution. in 2005, the province of maluku followed up on this initiative by adopting regional regulation no. 14 of 2005 on the reestablishment of negeri as an adat-law governed societal entity under the province of maluku. currently, the legal existence of the desa adat has been further reinforced by the aforementioned national law no. 6 of 2014 on desa. this law, in stark contrast to the law of 1979, instead emphasises that each desa has historic and traditional rights that may be referred to when 75 ibid. 76 ibid. 77 ibid. the strategic role of lembaga adat negeri in the fulfilment of victims’ rights to reparation in post-conflict ambon yustina trihoni nalesti dewi, jonathan kwik, and aholiab watloly udayana journal of law and culture vol. 01 no.2, july 2017 175 organising its governance. it emphasises the importance of protecting and incentivising desaentities to create local communities which can democratically develop and expand. this law therefore provides valuable legal legitimacy that can be embraced to restore and revitalize the many lembaga adat negeri and their crucial societal role in dispute settlement and reconciliation. in association with religious leaders and peace workers, lembaga adat negeri can take varied approaches to support reconciliation activities, e.g. by using religious and adat values, norms, ideas, discourses, and texts. they can employ traditional and religious concepts of apology and forgiveness as a focal resource for the reconciliation process. in light of the virtues of mercy and compassion, and the successful past practices of religious figures and leaders who committed to peace and humanity in indonesia,78 this approach may provide a valuable outlet to local reconciliation. throughout the twenty-five negeri in ambon, the many lembaga adat negeri should once again take up their strategic position in ambonese society, a position they have held since long before the conflict, and will continue to hold even in the current post-conflict era. the saniri, with its newly gained recognition and role in negeri governance, should continue to fulfil its reconciliatory role and contribute to the reparations of victims in ambon. with adat law as its foundation, the saniri is one of the cornerstones of ambonese society which binds and holds its constituents together due to its close ties with the fundamental values of the ambonese peoples, and thus presides in a prime position to receive and process the many aspirations in ambon that have thus far been neglected. saniri are comprised of local and adat figures who command respect and authority from the local peoples, and as such both enjoy the support and trust of locals, and possess sufficient capacity to enforce their decisions.79 as in previous times, saniri can use this authority to resolve interpersonal claims and conflicts within their respective negeri though interpersonal mediation or by providing a forum for reconciliation between groups or collectives, as well as aid in social (re)integration and the peaceful transition from a post-conflict society. lembaga adat negeri must continually be encouraged to take part actively in contributing towards ambonese society, in the hopes of rebuilding and re-enforcing the important hidop orang basudara values which have eroded over the years. in the end, it is hoped that their active involvement can provide a meaningful and functional input towards the fledgling reconstruction and reconciliation effort. currently, bodies such as the badan pelestarian nilai budaya (body for the development of customary values) and the lembaga kebudayaan daerah maluku (institute for moluccan local culture) are continuously involved in efforts to consolidate lembaga adat 78 sumanto al qurtuby, “peacebuilding in indonesia: christian–muslim alliances in ambon island,” islam and christian–muslim relations 24, no. 3 (2013): 349. 79 ibid. 176 negeri with the local societies. the regional government of the province of maluku is also actively facilitating the activities of the lembaga latupatti, which is attempting to unify the raja of the many negeri to ensure a joint effort in promoting peace processes, based on hidop baku bae and hidop orang basudara. 3. conclusion integrating the hidop orang basudara mentality into post-conflict reconciliation programmes in maluku is an attractive way of approaching the issue of reparations in ambon. hidop orang basudara, with its emphasis on peace-building, unity, and a communal identity, is the ideal remediy to re-unify and mend the damaged ambonese society, which currently experiences segregation, mistrust, and division. reparations based on hidop orang basudara, based on the common notion that katong samua orang basudara (we are all brothers and sisters) can become a unifying ideology between the peoples of the many moluccan negeri, and specifically those of the city of ambon. the importance of peace in the hidop orang basudara ‘cosmology’ can play a significant role and provide significant contributions to re-establish the harmonious coexistence of the ambonese peoples, and in particular those of victims, by providing a safe haven where they can rebuild their lives. each person raised in a moluccan negeri is likely to innately retain the aspirations and core values of hidop orang basudara, which makes this approach tenable and possibly more effective and relatable than the top-down efforts which have been attempted thus far. reparation and reconciliation efforts with friendship and mutual respect as its core underlining values, as suggested in this article, must be spearheaded by each individual negeri. this is so taking into account the proximity of each negeri to its subjects and the unique values and wisdoms each negeri can inject into their specific reparation policies, further increasing compatibility with local traditions and aspirations. it is recommended that the local government of ambon and the regional authority of the province of maluku continues their efforts to encourage reconciliation between the communities and groups in ambon. reconciliation and reintegration are important and effective methods to mend the damage done by the moluccan conflict. reconciliation, with its foundational premise of bridging the gap between the victims and perpetrators, promoting dialogue between these parties, and re-establishing peace and cooperation, is already in conformity with many hidop orang basudara values and will only be strengthened by the additional focus on ambonese traditional wisdoms. reconciliation traditionally also aims to change perceptions and stigmas carried by specific social groups, which once again is in linewith katong samua orang basudara. the strategic role of lembaga adat negeri in the fulfilment of victims’ rights to reparation in post-conflict ambon yustina trihoni nalesti dewi, jonathan kwik, and aholiab watloly udayana journal of law and culture vol. 01 no.2, july 2017 177 local leaders, authorities, and important adat figures in ambonese society who wish to engage in rebuilding the fractured ties between the ambonese peoples are recommended to retain their integrity, honesty, and goodwill at all times. it is also essential that such figures fulfil the necessary qualifications to lead reconciliation efforts, in terms of knowledge on adat law, experience, charisma, authority, and knowledge on the history of the ambonese people, both before and after the conflict. in particular, objectivity and impartiality are crucial for the successful rebuilding of peaceful co-existence and reconciliation in ambon. the adoption of the law of 2014 is a manifestation of the state’s recognition for the many different peoples in indonesia, each with their own customary law and societal structures. this important milestone should not be wasted by the peoples of maluku in their quest to reignite the previously-oppressed local governmental structures and dispute settlement mechanisms. the establishment and involvement of the lembaga adat negeri, in particular, should be further incentivised to aid general reparatory efforts, in particular with respect to remedies for victims. lembaga adat negeri is in a prime position to utilise their unique role within society to improve victims’ rights to reparation. due to their proximity to the people, lembaga adat negeri can most effectively determine the proper form of reparation for each victim or group of victims, as well as the best way to provide satisfaction. reparations underlined by pela and gandong remain the dominant models in adat-based reparations programmes in the many ambonese negeri. despite the conflict that has ravaged the peoples of maluku in the past, the ties that bind the people of ambon still exist to this day and are still tangible in everyday life in ambon. now, it is time to reignite these feelings of solidarity and respect to reunify a divided people. it is our conviction that, when spearheaded by lembaga adat negeri, pela and gandong and the common identity of the ambonese people as anak negeri (children of the negeri) will be able to overcome the prejudice and hatred and de-escalate any potential conflict which may occur. 178 bibliography book eddyono. supriyadi widodo & zainal abidin.memastikan pemenuhan hak atas reparasi korban pelanggaran ham yang berat. jakarta: institute for criminal justice reform. 2016. hiarij, eddy o.s. (ed.). format ulang birokrasi kota ambon. makasar: ininnawa. 2008. manuputty, jacky. et al. (eds.). carita orang basudara. ambon: lembaga antar iman maluku. 2014. ralahalu, karel albert. berlayar dalam ombak, berkarya bagi negeri: pemikiran anak negeri untuk maluku. ambon: ralahalu institut, 2012. watloly, aholiab. maluku baru, bangkitnya mesin eksistensi anak negeri. yogyakarta: kanisius. 2005. watloly, aholiab et al. perdamaian berbasis adat orang basudara. yogyakarta: kanisius. 2016. journal al qurtuby, sumanto. “peacebuilding in indonesia: christian–muslim alliances in ambon island.” islam and christian–muslim relations 24, no. 3 (2013): 349-367. https:// doi.org/10.1080/09596410.2013.785091 alfredo, ronald. “lembaga adat “saniri” sebagai forum komunikasi dalam penyelesaian masalah publik di ambon.” kareba: jurnal ilmu komunikasi 1, no. 3 (2011): 335-347. goss, jon. “understanding the maluku wars: overview of sources of communal conflict and prospects for peace.” cakalele 11, no. 7 (2000);7-39. herman, johanna. “the right to reparation in international law for victims of armed conflict.” (book review) nordic journal of human rights 33, no. 2 (2015): 190-192. https://doi.org/10.1080/18918131.2015.1036512 kaartinen, timo. “perceptions of justice in the making: rescaling of customary law in post-suharto maluku, indonesia.” the asia pacific journal of anthropology 15, no. 4 (2014): 319-338. https://doi.org/10.1080/14442213.2014.927521 the strategic role of lembaga adat negeri in the fulfilment of victims’ rights to reparation in post-conflict ambon yustina trihoni nalesti dewi, jonathan kwik, and aholiab watloly udayana journal of law and culture vol. 01 no.2, july 2017 179 kusumaningrum, diah. “interdependence versus truth and justice: lessons from reconciliation processes in maluku.” jsp (jurnal ilmu sosial dan ilmu politik) 20, no. 1 (2016): 34-49. https://doi.org/10.22146/jsp.17998 legal document decree no. 25 of 2003 of the mayor of palu kpp ham. laporan komisi penyelidik pelanggaran hak asasi manusia dan mediasi di maluku (2000) http://www.oocities.org/toelehoe/komnasham290305.htm law no. 5 of 1979 on desa governments (pemerintahan desa). law no. 6 of 2014 on desa (state gazette of the republic of indonesia 2014 no. 7, state gazette supplement no. 5495.) orentlicher, diane, updated set of principles for the protection and promotion of human rights through action to combat impunity (8 february 2005) e/ cn.4/2005/102/add.1. regional regulation no. 18 of 2008 of the city of ambon on guidelines for negeri governments. regional regulation no. 3 of 2008 of the city of ambon on negeri. regional regulation no. 8 of 2017 of the city of ambon on negeri. general assembly of the united nations resolution a/res/60/147 (16 december 2005). other document böhm, c.j. “brief chronicle of the unrest in maluku.” crisis centre diocese of amboina 2006. unpublished. buchanan, cate (ed.). “pengelolaan konflik di indonesia – sebuah analisis konflik di maluku, papua dan poso, lembaga ilmu pengetahuan indonesia.” current asia and the centre for humanitarian dialogue, geneva 2011. current asia & the centre for humanitarian dialogue. june 2011. “pengelolaan konflik di indonesia – sebuah analisis konflik di maluku, papua dan poso, lembaga ilmu pengetahuan indonesia.” (june 2011) https://www.hdcentre.org/ wp-content/uploads/2016/07/64bahasaindonesiaversion-june-2011.pdf. 180 eddyono, supriyadi widodo & wahyudi djafar. “mendorong kebijakan pemulihan yang efektif: rekomendasi pembaruan kebijakan pemulihan bagi korban pelanggaran ham yang berat pasca-pengesahan uu no. 31/2014 tentang perlindungan saksi dan korban.” seri keadilan transisional. elsam. ictj, ikohi & kkpk. december 2011. “indonesia’s obligations to provide reparations for victims of gross human rights violations.” policy briefing. https://www. ictj.org/sites/default/files/ictj-indonesia-reparations-policy-briefing-2011english.pdf. “refugees of maluku and north maluku and their problems.” background paper for lobbying material, session of un commission for human rights at the agenda of internally displaced people in the region of maluku and north maluku. april 2003. unpublished. soumokil, tontji. “reintegrasi sosial pasca konflik maluku.” dissertation, salatiga, indonesia: fakultas ilmu sosial dan komunikasi, universitas kristen satya wacana, 2011. taschler, lisa. “justice in maluku: formal and informal justice processes and their role for reconciliation in the aftermath of the 199 – 2002 conflict.” groningen. noha. watloly, aholiab. october 2016. “gambaran umum kota ambon.” manuscript presented to the desain ruang publik berbasis kearifan lokal kota ambon fgd. ambon. case law putusan no. 01/pid. ham/ad hoc/2003/pn.jkt.pst atas nama sutrisno mascung, dkk, 20 agustus 2004. website content/internet aditjondro, george j. “orang-orang jakarta di balik tragedi maluku.” http://www. michr.net/orang-orang-jakarta-di-balik-tragedi-maluku.html gumilang, prima. “kisah wali kota pelaku tragedi 1965 minta maaf ke korban.” http://www.cnnindonesia.com/nasional/20160630112959-20-142052/kisah-wali-kota-pelaku-tragedi-1965-minta-maaf-ke-korban the strategic role of lembaga adat negeri in the fulfilment of victims’ rights to reparation in post-conflict ambon yustina trihoni nalesti dewi, jonathan kwik, and aholiab watloly udayana journal of law and culture vol. 02 no.1, january 2018 97 does customary law discriminate balinese women’s inheritance rights? hanna christine ndun* faculty of law udayana university sarah suttor** charles darwin university school of law i gusti agung ayu dike widhiyaastuti*** faculty of law udayana university abstract there is a stereotype with regard to the rights of the balinese women on inheriting under the balinese traditional customary law. it is generally assumed that the law discriminates balinese women as well as against the human rights principle of equality. this article analyzes the contemporary problems of such issue and would demonstrate the actual principles, rules and practices, including the essential concept of the rights under the balinese traditional customary law of inheritance. this issue has been explored under a normative legal approach where the resources are primarily taken from the relevant national legal instruments and court decisions, instead of textbooks and journals. an interview has also been commenced for clarifying some aspects of the issue. this article concludes that there has been a generally misleading on viewing the balinese customary law as discriminating women on an inheritance issue, as in fact, the law also provides rules for supporting women’s rights for inheriting. the law in a certain way has properly preserved the right of women for inheriting in which women under the law have also enjoyed rights for inheriting, especially the daughter and widow. in contrast, the balinese men that are generally perceived as the ultimate gender enjoying privileges rights to inherit, in the practice of inheritance in the traditional community are also subject to some discrimination. the law has provided a set of rule of inheritance both for men and women where they are subject to certain equal rule and condition. the law also clarifies that both genders are enjoying equal rights on inheritance in a certain portion and situation binding under the principle of balancing between rights and obligation for each side. keywords: inheritance rights, women rights, balinese women, customary law` . how to cite (chicago-16th): christine ndun, hanna. “does customary law discriminate balinese women’s inheritance rights?” udayana journal of law and culture 2, no. 1 (2018): 97-114. https://doi. org/10.24843/ujlc.2017.v02.i01.p05.. doi: https://doi.org/10.24843/ujlc.2018.v02.i01.p05 vol. 02, no. 1, january 2018, 97-114 1 * email: hcndun@gmail.com ** email: sls_suttor@hotmail.com *** email/corresponding author: ayu_dike@unud.ac.id and dikewidhiyaastuti@gmail.com 98 1. introduction 1.1. background as bali province is an integral part of the republic of indonesia, foreigners may assume that any private issue simply falls under the indonesian private law which strongly influenced by western values, especially dutch. this assumption is misleading. despite many efforts have been done by the government of the republic of indonesia for unifying and harmonizing the indonesian private law, some matters are still left to customary law or known as adat law. such law refers to a law that is created by, accepted by, and implemented by the traditional community within their territory and among their community member. the 1945 constitution of the republic of indonesia and some other acts1 have fully recognized the existence of this customary law. hence, the law plays a significant role in governing the communities. there are some nearly 1.500 traditional communities around bali with their autonomous community system.2 the constitution awards them certain constitutional rights including rights to own territory, autonomous governmental system, people, and legal system. they are deserved to appoint their leader and management system, create their own law, to perform and enforce it within their territory. one issue that reflects the power of the balinese customary law is the matter of inheritance. for centuries, only men are preserved right for inheriting due to the patriarchal system. therefore, in a very surface of analysis, it easily concludes that only men are deserved for inheriting and women are obviously discriminated from the rights of the beneficiary. the enlightenment of human rights, as well as the teaching of gender and feminism, have instantly opened some balinese mind and make them questioning on the strict understanding of granting only men to inherit. it has driven some social and cultural debates that turned people into a dynamic situation. it is worth to acknowledge that academician, majelis desa pakraman (customary village assembly in bali)3 and also court play a significant role in shifting these progressive concerns. they have made an effort to enlighten and providing a greater understanding with regard to the effect of customary inheritance law in the balinese traditional communities. 1 act of the republic indonesia no. 5 year 1960 concerning basic regulation on agraria, art.5 and act of the republic of indonesia no. 39 year 1999 concerning human rights, art.6. 2 “tahun 2017 majelis utama desa pakraman bali kukuhkan 5 dp baru, salah satunya di tabanan,” december 8, 2017, https://www.beritabali.com/read/2017/12/08/201712080017/tahun-2017-majelisutama-desa-pakraman-bali-kukuhkan-5-dp-baru-salah-satunya-di-tabanan.html 3 majelis desa pakraman is an assembly that coordinates the customary villages in bali. it has hierarchy structure as follows: the top position is called as majelis utama desa pakraman that chairing at provincial level; the middle level at regency/municipality is called as majelis madya desa pakraman; the lower level is what so-called as majelis alit desa pakraman that coordinates customary villages in the territory of district /sub-regency. see further explanation in section 2.5. does customary law discriminate balinese women’s inheritance rights? hanna christine ndun, sarah suttor, and i gusti agung ayu dike widhiyaastuti udayana journal of law and culture vol. 02 no.1, january 2018 99 1.2. method and structure this article analyses the women inheritance rights in the balinese traditional community. in general, it tries to explain the women inheritance rights in balinese customary law and its impact. this writing is specifically aimed at gaining and exploring the issue of the balinese women discrimination to inherit under the balinese customary law. it is also expected to bring an impact to the community perception with regard to rights of the balinese women for inheriting including redefining its concept. 1.3. methodology and the structure of article the writing has been based on a normative legal method and primarily based on a library research. norms on inheritance are taken from relevant national legal instruments besides from selected decisions awarded by court. it is also supported by resources that provided in textbooks and journals as well as social sciences literature. clarification to sources and resources are obtained from interview to relevant experts. the structure of this article covers the following elements: section 2.1 presents a literature review to see the number of people who put attention on inheritance law in indonesia. next, section 2.2 provides an analysis on legal pluralism in inheritance laws of indonesia which aimed at introducing the inheritance law of indonesia. subsequently, the role of the indonesian supreme court on the development of the indonesian customary law with regard to the issue will be discussed in section 2.3. section 2.4 will describe the inheritance rights in balinese traditional community while section 2.5 will analyze the system of the balinese customary law of inheritance and its impact on the rights of the balinese women to inherit. the last part of this writing is the conclusion as provided in section 3. 2. result and analysis 2.1. literature review the issue of limited rights of women to inherit is not limited only to the balinese women, but also some others on this planet.4 such limitation attracts a lot of attention of the academician for finding factors causing the problem existed. yeni salma barlinti wrote an article compares three systems of inheritance law, analyzes the issue of personality principle and assesses the way courts implement the system in the legal 4 see for example the situation of women in india in prerna s. ramteke, “knitting the future story of indian women: preventing violence, fostering development, and accelerating empowerment”, udayana journal of law and culture 1, no.2 (2017):113. see also the obstacles for women in rwanda to inherit their parents’ lands in aparna polavarapu, “procuring meaningful land rights for the women of rwanda”, yale human rights and development journal 14, no.1 (2014):108-110. 100 proceedings.5 the research reveals that the employing of the three systems of inheritance law in indonesia (adat, islam, and western) are remain existed as quite many inheritance disputes are submitted before the courts.6 dyatmikawati published an academic paper that analyses the development of customary law in bali with regards to the women rights to inherit particularly in the context of constitutional guarantees that indonesian citizen is equally treated before the law and community.7 her juridical research assesses that balinese women positioned by both indonesian national law and balinese customary law especially for the issue of the right to inherit their parent’s property.8 helen creese wrote an article that reveals how balinese law codes has considered and governed the rights to property and inheritance of the female both within marriage and following divorce or death.9 meanwhile, ni ketut sri rasmini describes that the kinship systems in indigenous people in bali are patrilineal and there is three kind of inheritance systems such as individual, collective and mayorat.10 another writer, i nengah ardika identifies three approaches that may be used to analyze the issue of granting rights of inheriting of the balinese women.11 under the first approach, the philosophical approach, such granting of rights reflects a substantive justice,12 while under the second approach, the legal approach, it implies a concern on gender equality.13 lastly, the sociology approach views that the granting of inheritance rights for the balinese women is in line with the times as the current civilization widely recognized the equality between men and women.14 a dutch scholar ingrid westendorp assesses how balinese women are discriminated against their rights in the matters of inheritance based on religious and traditional laws.15 despite the hindu holy book manawa dharmasastra underlines the 5 yeni salma barlinti, “inheritance legal system in indonesia: a legal justice for people”, indonesia law review 1, no.1 (2013): 23, http://dx.doi.org/10.15742/ilrev.v3n1.28 6 ibid, 39-40. 7 putu dyatmikawati, “inheritance rights of women based on customary law in bali”, international journal of business, economics and law 11, no. 4 (2016): 13. 8 ibid. 9 helen creese, “the legal status of widows and divorcees (janda) in colonial bali”, indonesia and the malay world 44, no. 128 (2016), https://doi.org/10.1080/13639811.2015.1100862 10 ni ketut sri ratmini, “hak warisan dan hubungannya dengan daha tua menurut hukum adat bali, udayana master law of journal 4, no. 2 (2015), https://doi.org/10.24843/jmhu.2015.v04. i02.p19 11 i nengah ardika,”pemberian hak waris bagi anak perempuan di bali dalam perspektif keadilan”, jurnal magister hukum udayana 5, no. 4 (2016) : 639 – 649, https://doi.org/10.24843/jmhu.2016. v05.i04.p01 12 ibid, 643-644, 647. 13 ibid, 639, 647. 14 ibid, 643645, 647. 15 ingrid westendorp, “personal status law and women’s right to equality in law and in practice: the case of land rights of balinese hindu women”, journal of human rights practice 7, no.3 (2015): 433, https://doi.org/10.1093/jhuman/huv013 does customary law discriminate balinese women’s inheritance rights? hanna christine ndun, sarah suttor, and i gusti agung ayu dike widhiyaastuti udayana journal of law and culture vol. 02 no.1, january 2018 101 equality rights of male and female persons to inherit, they are supposed to play different roles in society and therefore are entitled to different privileges commensurate with these roles.16 she then argues that the customary rules applied for the aspects of family, marriage, and inheritance are not based on equality, but equity, entails with a situation that a person will have rights and duties that befit his or her gender and status in society.17 edo hendrako explained that under the balinese customary law of inheritance, the rights of inheriting may be distributed not just after the testator die, but also when the testator still alive.18 he also describes that the patrilineal kin system positioned man higher rather than women. it leads to veiled gender discrimination in balinese customary law.19 in his view, the phenomenon makes man usually positioned women in the second line and receive less attention. in some areas in bali, parents intentionally did not give a proper education to their daughters because they thought their daughters will not give them anything in return and later on they will move to their husband family.20 under the result of research carried out by ni luh gede isa praresti dangin, koesno adi, and iwan permadi, the inheritance rights closely related to the responsibility of taking care of the parent. after married the daughter generally leaves her family and starts a new life in the husband family. under the kinship systems the responsibility to accompany the parents, and to some extent, substitute parent customary obligations will be carried out by their son. this is the reason why inheritance rights are given to the son, not to the daughter. it can be acknowledged that social reality shows that daughters inherited from her parents in terms of a gift of marriage that is called “jiwa dana”, “tetatadan”, or “bebaktan”. the parents can even conduct a ceremony to change the status of “daughters” to become “sons” in what is called “sentana rajeg”, so that the daughter becomes the rightful heir to the inheritance of her parents.21 a research in the field of hinduism carried out by ni kadek setyawati discovers that in the period before 1900 the bali-hindu society has applied the absolute purusa system which that determines men as heirs for their parents’ inheritance. by 1900 onward, some jurisprudences and decisions adopted by customary village assembly reflect gender equality that enables women to inherit in the balinese family. this research also found that the strong patrilineal culture prevailing in indigenous 16 ibid, 433-434. 17 ibid, 434. 18 edo hendrako,“hak waris anak perempuan terhadap harta peninggalan (studi kasus putusan ma ri no. 4766/pdt/1998)”, lex privatum 3, no. 1 (2015): 84. 19 ibid, 86. 20 ibid. 21 see further in ni luh gede isa praresti dangin , koesno adi, iwan permadi, “kedudukan hak mewaris wanita hindu dalam sistem hukum adat waris di bali”, jurnal hukum, magister ilmu hukum dan kenotariatan universitas brawijaya (2015). 102 balinese society has made the position of women not fully acknowledged, even in the case of female decision making in the family they are not taken into account. arguing that responsibilities of bali-hindu women in a family, marriage and society are not much different to the responsibilities of men, consideration to give women an opportunity to have equal legal status with men, especially in the issue of inheritance under the customary law of bali, need to be reasonably taken into account.22 2.2. legal pluralism and inheritance law in indonesia inheritance issue is always interesting to be discussed as many of problems often arise from it. inheritance may cause friction or even dispute among family members as they receive properties from descendant either by will or the state law of intestate succession. the issues closely related to the right to inherit, properly when the properties transferred from the died person to the heirs. there are several inheritance laws existed in indonesia such as the indonesian private law, the customary law, and the religion law. the indonesian civil code is a codification on the private law which has been adopted from dutch law legal system during the colonialism era and remain valid in the recent day. there is no doubt that indonesian laws of inheritance strongly bound by the old school of the western legal thinking. the second is the inheritance law based on the indonesia traditional customary law which is created, accepted and applied by and within indonesia traditional communities. the third law is the religion laws which are sourced in the holy book of each religion. there are arround six religions existed in indonesia namely islam, christian (protestant), roman catholic, hindu, buddha, and confucianism. such religion laws applied to their fellows. for instance, islamic inheritance law mostly applies to moslem people while christians and buddhist mostly rely on indonesian private laws. the implementation of indonesian private laws in the inheritance cases do not as much as the implementation of the inheritance of customary laws and the religious laws. customary inheritance laws are generally applied in the genealogical and territorial tribes such as bali, sasak, batak and other customary communities in indonesia. this law of inheritance is part of the customary law, that is a set of rules contains the living values, appreciated, upheld and implemented by the traditional community.23 due to imam sudiyat, customary inheritance law contains rules and policy which are related to the forwarding/passing and switching/shifting the material and nonmaterial property from generation to generation.24 meanwhile, in ter haar comprehension, customary inheritance law is the rule of law covers the way of 22 ni kadek setyawati, “kedudukan perempuan hindu menurut hukum waris adat bali dalam perspektif kesetaraan gender”, jurnal penelitian agama hindu 1, no. 2 (2017): 618. 23 i gede a.b. wiranata, hukum adat indonesia perkembangannya dari masa ke masa, (bandung: pt. citra aditya bakti, 2005), 21. 24 ibid, 256. does customary law discriminate balinese women’s inheritance rights? hanna christine ndun, sarah suttor, and i gusti agung ayu dike widhiyaastuti udayana journal of law and culture vol. 02 no.1, january 2018 103 forwarding and switching the tangible and intangible property from the predecessor to the succeeding generation.25 the main principle of inheritance is kinship principles which influence the laws. referring to soerjono soekanto, customary inheritance law in indonesia is influenced by the kinship principle. it could be the pure patriarchal principle, alternated with the patriarchal principle, matriarchal or bilateral even it is difficult to say where is exactly it applied in indonesia community, and also work the double unilateral principle.26 he perceives that this kinship principle usually influences the inheritor’s determination or which portion of the property shall be inherited, the material or immaterial. the religion law, such as moslem, is mostly embraced by the indonesian. the main resource of inheritance law in moslem religion is the holy book of quran which is called fiqh or the moslem inheritance law. it aims to avoid controversy with regard to inheritance property which left by the ancestor and avoid one heir feels more rightful than the others. then, the distribution of the inherited property more just among the heritance and less conflict may be created. in accordance to such aimed, moslem obey a doctrine of inheritance provided by the quran shown in quran letter an-nisaa section 11 to 12 and letter an-nisaa section 176.27 the hindu law in indonesia does not stand alone and governs the hindu people straightly. it is absorbed into the indonesian customary laws, in particular in the practice of hindu society in bali where hindu law embraced by adat law. hence, there is a legal pluralism in the indonesian inheritance laws as reflected in various kinds of inheritance law such as the indonesian private law, the traditional customary law and the religious law. one of the interesting matters to explore is the customary inheritance laws. there are some problems existed in the traditional community related to the heirs, heir’s obligations, and the property. the problem mostly complicated under the nature of the customary inheritance laws such as strict and perhaps harmful against the heirs, particularly women. 2.3. the role of the indonesian supreme court elfrida gultom discovered that some decisions awarded by the indonesian courts in the case of inheritance reflected that position of men and women tends to become just and equal as mostly shown in the parental system. some courts positioned women as equal as men, sometimes treated as a neutral party in conformity with the values of modernization leads to heterogeneity and equality as well as in the sense of 25 ibid. 26 soerjono soekanto, hukum adat indonesia, (jakarta: pt. rajagrafindo persada, 2011), 259-260. 27 see “hukum waris islam dan pembagiannya,”https://dalamislam.com/hukum-islam/hukumwaris-islam 104 inheritance law which brings a great impact to the practice of inheriting in the batak, karo and bali traditional community.28 some indonesia supreme court decisions awarded an equal position, treatment, and opportunities for women to inherit especially to children and widow inherit rights. in the ruling of supreme court decision number 179/sip/1961, dated 23 october 1961, it says: “….based on humanity and common justice, also the equality rights between men and women, in some decision made, supreme court takes an attitude and assume as the living laws in indonesia, that daughters and sons of the dying person equally have the rights as an heir to inheritance property in the sense that both sons and daughters have the same portion. ….under such vision, in karo land, daughter also become a descendant which have a inherit rights to her parent’s inheritance property.” in that karo land case, supreme court rules that daughter shall be given inheritance rights, as well as man, although the distribution may not similar to the man. a judgment awarded by indonesia supreme court in 1968 strengthened its previous decision in 1961. in the supreme court decision no. 100k/sip/1967 dated 14 june 1968, the court stated that “….regards to community development at this time which is toward to equation and equality between men and women, and the widow as a descendant act constitute jurisprudence by the supreme court…”. this decision in lines with the principle of binding power of the supreme court jurisprudence, which particularly binding upon the disputing parties and not to the other. this decision entails that indonesia woman who is bound by their customary law can propose their position as a descendant and obtain inheritance rights. it has been for two decades the supreme court has played a role in the development of indonesian customary law in particular with regard to the development of rights of woman in the balinese traditional community to inherit from their parents. in the supreme court decision number. 4766/pdt/1998, dated 11 june 1999, the court has decided that the balinese daughters may also be a descendant and hold inheritance rights to inherit the property of their father. the court has started aware to the position of the woman within the life of the traditional community which shall be improved in a proper way. so, they may own rights for inheriting including in the patriarchal system where women mostly ignored by the system. under its decision, the court has started granting rights for inheriting to the women even though they live within a society which prevail patriarchal system. the women shall be positioned as equal as men do in the case of inheriting. they should be given an opportunities to inherit from their family as the facts that the hindu’ law does not put or treat women in discrimination, but equal due to their natural rights and obligation even though they are totally different by gender, position and function in 28 elfrida r gultom, “development of women position in the patrilineal inheritance of indonesian society,” jurnal dinamika hukum 17, no. 2 (2017): 194-202, http://dx.doi.org/10.20884/1.jdh.2017.17.2.886 does customary law discriminate balinese women’s inheritance rights? hanna christine ndun, sarah suttor, and i gusti agung ayu dike widhiyaastuti udayana journal of law and culture vol. 02 no.1, january 2018 105 the life of the society. in addition, the development of human rights has also strongly supported the idea of equal rights between man and women in the sense of rights for inheriting. in ny. jance faransina mooy-ndun v.junus ndoy et.al case, indonesian supreme court in 2012 brought up the idea of human rights in supporting their decision. the court has cited article 17 of the act number 39 of 1999 concerning human rights and the 1961 jurisprudence showing that women’s inheritance is equated to men.29 the consideration of the decision also mentioned that customary law has no longer consistent with the progressive development of law recently. the customary law does not recognize women’s rights equivalent to the position of men, can no longer be maintained.30 2.4. inheritance rights in balinese customary law balinese customary law is a part of the traditional or indigenous law which is existed in the balinese traditional community. balinese customary laws absorb some contents of the hindu law such as manawa dharma sastra and catur agama (the four basic rules) into its rules based on this facts, the balinese customary law is classified as a unique law as it merges hindu laws into its content. it has a consequence upon its function or binding power such as it only prevail to the balinese people who are hindu. there are some three million people living in bali are hindu and the rest are consist of non-hindu like moslem, buddhism, and christian. they all live within the traditonal community as community guests (krama tamu) and are generally not bound by the balinese customary law. balinese customary law regulates the relationship amongst human being, between human and environment, and between human and the gods within the community. such regulations are provided in the law, called awig-awig, which maintain order within the community and preserve safety and security for the social life of the community. each traditional community has their own adat law and strongly influenced by their particular condition, space (desa) time (kala) and situation (patra). however, there are a kind of common elements contained in the law, it is the concepts of habitual elements called catur dresta or the four basic elements of law consist of the old tradition (pura dresta), religion rules (sastra dresta), general public rules and opinion (loka dresta), and local public opinion (desa dresta). it makes the village rules (awig-awig) become flexible, dynamic and responsive to the world development. almost none of the balinese people behave contrary against the law, they commonly accept and obey the law with full respect and obedience. 29 decision, indonesian supreme court, no. 1048 k/pdt/2012, 26 september 2012, 26-27, https:// putusan.mahkamahagung.go.id/putusan/downloadpdf/38ce125c6a11b95444de7a70b8e73fae/pdf 30 ibid, 27. 106 balinese inheritance law is based on hindu and the balinese kinship system. so, it is a kind of mix between religion and the people tradition. balinese kinship system followed the patriarchal system which is a lineage of men. in the patriarchal system, men own full rights for inheriting the property of the father in accordance with the vertical line (line up and down) and a horizontal line or the sideline. as an example, supposedly a balinese man, name wayan, a sole son of his father, pan wareg,31 and he has some sisters. in this illustration, wayan will own the full rights to inherit his father’s property. supposedly pan dadung, the brother of pan wareg, has no son or daughter, then wayan will take a position as the pan dadung heir and he will certainly inherit the pan dadung’s property. so in the patriarchal system, there is no chance for women, such daughter or sisters, niece and widow to own rights for inheriting. under the balinese inheritance law, there are four elements of inheriting play an important role, such as:32 1. the ancestor, the one who has the rights to inheritance property (powers); 2. the inheritance (warisan); 3. the descendant (waris); and 4. the heirs (ahli waris). these four elements contain a different concept of inheritance and have caused the customary inheritance law differ to the indonesian private laws, as the law only measuring some elements of inheriting such as ancestor, inheritance, and the heirs. the indonesian law has no conceptions of descendant prevailed in the balinese customary law. inheritance (waris) means the descendant which arises to the next generations of the ancestor (pewaris), it could be the ancestor’s children, both men and women, and also the ancestor’s grandchild, either men or women. the descendant does not only own the inheritance rights as an heir (ahli waris), but inheritance rights by the law or by the will. in the patriarchal system, a son who is adopted by ancestor also has a rights to inherit similar to the biological son of the heir. balinese inheritance law shows that the law has influenced much by the patriarchal principle causing some conditions applied to both biological son and adopted son, such as: 1. they do not perform a nyeburin marriage (a man who shifting his status from men to women and starts the new obligation as in the wife house) 31 pan is an abbreviation bapan, means the father of [name of the son). in this illustration, wareg is the given name. 32 interview with i wayan windia, at bali santhi secretariat, denpasar, 4 december 2015. does customary law discriminate balinese women’s inheritance rights? hanna christine ndun, sarah suttor, and i gusti agung ayu dike widhiyaastuti udayana journal of law and culture vol. 02 no.1, january 2018 107 2. already run and bear their dharmaning (the concept of obligation in hindu) as a child. if they disobey those conditions, they will not be regarded as a descendant and have no rights at all, similar to the balinese women have. in balinese inheritance laws, women, such as daughter and widow, commonly have no rights to be an heir and inherit an inheritance property. they have a particular right to the property as long as they do not release their rights. there are rules for balinese women provided by the law who will lose their particular right to inherit the property, such as:33 a. for daughters: 1. she is married and moved to husband family; 2. she has not recognized anymore as a child by her parents. b. for widows: 1. she is betraying (bergendak); 2. she is married again with another person. the most important thing in inheritance under the customary law, especially in balinese traditional community law, is the descendant of the family. there is a peculiar concept of a descendant in balinese thinking based on the hindu conceptions of a descendant. it is regulated in manawa dharma sastra section ix:106 which stipulated that the descendant as they were birth, they shall be released from the debts and sins to the ancestor (died parents, grandfather) and for that reason, men deserve to get the inheritance rights. based on the conceptions, the inheritance right in balinese inheritance laws belongs to the men, not the women. due to the balinese inheritance laws, married women do not have any rights to the family inheritance, the different condition will apply to the unmarried woman. she will retain full rights to inherit. however, if the woman takes a role as a man and bring a man to her lineage as a woman (sentana rajeg), this means she will fulfil the man obligations and in this instance, a woman assumes full inheritance rights. this kind of marriage is called “nyeburin”. this research discovers that the balinese inheritance laws recognize both genders have an equal opportunity to own rights to inherit. so, the balinese inheritance law actually does not discriminate woman as the law has measured them in a certain way due to their rights and obligation in their origin family. 33 soerjono soekanto, op.cit, 264. 108 besides the rights to inherit, balinese customary inheritance law also imposes an obligation to the men, in line with their position as an heir, to preserve and maintain the inheritance property. this obligation, in fact, is a hard obligation. in the balinese inheritance laws, inheritance property comprising:34 1. the inheritance itself, such as: a. undivided inheritance means the inheritance property which has magical and religious values such as hindu family temple (merajan, sanggah), worship tools (siwa karana), family’s iconic and magical weapons (keris), etc; b. divided inheritance such as rice field, farmland, land, and etc. 2. the congenital property, that is a property belongs to the bride or the grooms which are brought to marriage such as known as jiwa dana, tatadan and akskaya; 3. marriage property, that is a property which has been obtained during the times of marriages (guna kaya); and 4. the community rights such as worship in territory-based community temples (kahyangan tiga), the use of customary cemetery, and performing hindu ceremonies such as pitra yadnya, a ceremony performed for purifying the soul of the passed away family members, which mostly big and absorbing a huge amount of money. for some situation, the inheritance property is also included all kind of debts which is left by the ancestor. the heir is under obligation to settle the ancestor debts. it describes by the law that under the balinese inheritance laws, the inheritance property shall cover the tangible and intangible property. one of the harder things under the balinese inheritance laws is that the intangible property, especially the community rights and undivided property, is much more related to norms applied to the community. therefore, the balinese inheritance law does not solely a material property but also an immaterial property which corresponds to the three concept of responsibility includes responsibility to gods expressed under the concept of parahyangan, responsibility to the community expressed in the concept of pawongan, and responsibility to the territory or environment of the community expressed in the concept of palemahan. these three concepts also become a part of the obligation to fulfill by those who awarded the rights to inherit. the above structure and elements of the balinese customary law on inheritance show that the concept of inheritance under the law very much relies on the basic concept of inclusive justice where justice is measured under the balance between rights and obligation of a particular subject of law. instead of enjoyment of rights, 34 ibid, 227-278. does customary law discriminate balinese women’s inheritance rights? hanna christine ndun, sarah suttor, and i gusti agung ayu dike widhiyaastuti udayana journal of law and culture vol. 02 no.1, january 2018 109 the man who inherits is also bear a certain obligation to be performed as the balance of the rights they got. however, there is a certain note under the balinese customary law that woman as the family member is certainly measured under the balinese inheritance law. the law has set up a package of the requirement for those who deserved to inherit. any women who follow such requirements would be guaranteed by the law that they will hold their rights and those who fail to fulfill the requirements will lose their right to inherit. 2.5. the impact of the balinese inheritance law on the inheritance rights of women in the patriarchal systems, the right to inherit belongs to men as the rightful descendant of his father. the patriarchal system prevented women to own rights on inheriting. the balinese customary laws prevail in similar rules of inheritance. it embraces the patriarchal principals in its kinship systems. under the balinese customary laws, women seem to have no rights to be descendant of his father. a foreigner may assume that the balinese inheritance law discriminates against women, both daughters and widows. interestingly, an expert in balinese customary law, i wayan windia, has a non-mainstream view by arguing that the balinese inheritance law does not only discriminate women, but also the men.35 he said women who become a widow and back to their home as a daughter when she got divorced or suffered a dead divorced will enjoy a right to inherit the property of her origin family. this is one of the benefits for the women under the balinese inheritance law. although they have no rights to inherit as what balinese men have, they actually own another kind of rights differ to the balinese men.36 if they are married in a normal marriage, balinese men never lose their inheritance rights and they are under obligation to take all obligations which left behind the ancestors which are not limited to the tangible property, but also the intangible property including debts. in another case, when a balinese man become a widower in case of sentana rajeg (nyeburin marriage), he totally loses his inheritance right in his original house/family and has no inheritance rights in the women house/family.37 i wayan windia also revealed that there is a fallacious thought that balinese women are fully discriminated from their inheritance rights as vice versa, they are also protected by the balinese inheritance law itself. there is indeed a true impact of balinese inheritance rights to the balinese women, but the philosophy behind the rules seems improperly delivered by the previous generations.38 the progressive development of the balinese traditional community law, following the establishment of the bali customary village assembly (majelis desa pakraman) 35 interview with i wayan windia, op.cit. 36 ibid. 37 ibid. 38 ibid. 110 and the issuance their decision, the decision of the village assembly number 01/ kep/psm-3/mdp bali/x/2010, dated 15 october 2010 which determines the balinese woman shall receive a half of the man (purusa) inheritance rights after diminished 1/3 for inheritance and conservation interest.39 a condition of religion status is applied as a balinese woman has no rights to inherit in case she converted to another religion. if her parents sincere, stay open mind and give a jiwa dana or voluntary provision. the customary village assembly is an institution established under the provincial regulation of bali number 3 of 2001 concerning desa pakraman. unfortunately, this decision has less socialized to the customary community. the customary community seems not so aware of it, which means the balinese customary law especially inheritance law still sets to the patriarchal system and gives limited rights to the balinese women to inherit. i komang kawi arta, under his discovery, found that most bendesa adat, the chiefs of the customary community in the bali aga, the old village of customary community in buleleng regency, do not accept yet the decision of that customary village assembly caused by the customary community still maintain dresta (custom rules) in a strict way and because awigawig (traditional rules) and also their indigenous habits about the inheritance rights only belong to man in bali aga customary community; the decision has also not been realized or implemented because of the cristallized paternalistic culture. some adagium such as “gugon tuwon” and “anak mule keto dini”, means that all things have been continuously believed and practiced as a tradition way in bali aga village of buleleng regency. in addition,40 such decision has no implication to the legal standing of women in the bali aga village because of none of those women claiming or complaining on their inheritance rights in their own family. there is sought of a breakthrough in the marriage concept introduced by i wayan windia called pade gelahang where the wind of change are flowing out to a couple that has no son as the descendant they will secure their property through the marriage system. in this systems, both brides will have the same rights in inheritance laws and will take responsibilities in both families as a descendant. both families may jointly conclude an agreement to determine, for example, one of their children will only take one obligation in the future, which can be in his/her mother home or father home.41 3. conclusion and recommendation 3.1. conclusion it can be drawn up that rules of indonesian private laws are different from the rules of customary laws and religious laws. these three laws have their own characteristic on 39 see putu dhyatmikawati, op.cit, 16. 40 i komang kawi arta, ketut sudiatmaka, ratna artha windari, realisasi keputusan pesamuhan agung iii mudp bali terhadap pewarisan anak perempuan bali aga di kabupaten buleleng, e-journal komunitas yustitia universitas pendidikan ganesha jurusan ilmu hukum 1, no. 1 (2018). 41 interview with i wayan windia, op. cit. does customary law discriminate balinese women’s inheritance rights? hanna christine ndun, sarah suttor, and i gusti agung ayu dike widhiyaastuti udayana journal of law and culture vol. 02 no.1, january 2018 governing inheritance rights. in balinese customary inheritance law, some concepts are very distinctive. vice versa, balinese women rights to inherit has properly protected under the balinese customary law as shown in the concept of luxury exclusive rights belong to balinese women which provides advantages to women (daughter and widow) to inherit. in contrary, men may absolutely lose their rights of inheritance in some conditions such as do a nyeburin marriage and if the men become a widower of nyeburin marriage. men, in this case, do not have such rights as the women do. based on construction, balinese customary law protects properly both man and women rights’ to inherit, in the same way, they are also subjected to discrimination on a certain occasion. such structure makes clear that both genders have their own means of enjoying inheritance rights that applied in different situations. 3.2. recommendation in order to strive the progress, local government should take a position to disseminate the decision by customary village assembly that clarifies the 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ayu dike widhiyaastuti udayana journal of law and culture vol. 02 no.1, january 2018 gultom, elfrida r. “development of women position in the patrilineal inheritance of indonesian society.” jurnal dinamika hukum 17, no. 2 (2017): 195-202, http:// dx.doi.org/10.20884/1.jdh.2017.17.2.886 hendrako, edo. “hak waris anak perempuan terhadap harta peninggalan (studi kasus putusan ma ri no. 4766/pdt/1998).” lex privatum 3, no. 1 (2015): 84-98. polavarapu, aparna. “procuring meaningful land rights for the women of rwanda.” yale human rights and development journal 14, no.1 (2014):105-154. ramteke, prerna s., “knitting the future story of indian women: preventing violence, fostering development, and accelerating empowerment”, udayana journal of law and culture 1, no.2 (2017): 98-120. doi:10.24843/ujlc.2017.v01.i02.p02. ratmini, ni ketut sri. “hak warisan dan hubungannya dengan daha tua menurut hukum adat bali.” jurnal magister hukum udayana 4, no. 2 (2015): 391 – 406. https://doi.org/10.24843/jmhu.2015.v04.i02.p19 setyawati, ni kadek. “kedudukan perempuan hindu menurut hukum waris adat bali dalam perspektif kesetaraan gender.”, jurnal penelitian agama hindu 1, no. 2 (2017): 618-625. westendorp, ingrid. “personal status law and women’s right to equality in law and in practice: the case of land rights of balinese hindu women.” journal of human rights practice 7, no.3 (2015): 430-450. https://doi.org/10.1093/jhuman/huv013 legal documents the 1945 constitution of the republic of indonesia indonesian civil code act of the republic indonesia no. 5 year 1960 concerning basic regulations on agraria act of the republic indonesia no. 1 year 1971 concerning marriage act of the republic of indonesia no. 39 year 1999 concerning human rights provincial regulation of bali no. 3 year 2001 concerning desa pakraman 113 case law decision, indonesian supreme court, no.179k/sip/1961, dated 23 october 1961. decision, indonesian supreme court, no. 100k/sip/1967 dated14 june 1968. decision, indonesian supreme court, no. 4766/pdt/1998 dated 16 november 1999. decision, indonesian supreme court, no. 1048 k/pdt/2012, dated 26 september 2012. website content “hukum waris islam dan pembagiannya,” august 3, 2016, https://dalamislam. com/hukum-islam/hukum-waris-islam “tahun 2017 majelis utama desa pakraman bali kukuhkan 5 dp baru, salah satunya di tabanan,” december 8, 2017, https://www.beritabali.com/ read/2017/12/08/201712080017/tahun-2017-majelis-utama-desa-pakramanbali-kukuhkan-5-dp-baru-salah-satunya-di-tabanan.html interview i wayan windia, interview by authors. bali santhi secretariat, denpasar, december 4, 2015 114 does customary law discriminate balinese women’s inheritance rights? hanna christine ndun, sarah suttor, and i gusti agung ayu dike widhiyaastuti udayana journal of law and culture vol. 02 no.1, january 2018 73 human rights and the environmental protection: the naïveté in environmental culture made adhitya anggriawan wisadha* centre for international law and human rights and richardson institute lancaster university, united kingdom grita anindarini widyaningsih** university of aberdeen, united kingdom 1. introduction “a weakened sense of the reality of our embeddedness in nature is seen in the cultural phenomenon of ecological denial which refuses to admit the reality and seriousness of the ecological crisis.”1 * email/corresponding author: m.anggriawan@lancaster.ac.uk ** email: g.widyaningsih.17@aberdeen.ac.uk 1 val plumwood. environmental culture: the ecological crisis of reason, 1st ed. (new york: routledge, 2002), 97. abstract there are growing trends in the human rights to substantially extend the values to protect the environment or moreover to welcome the ideas of the rights to environment, not to mention the rights of environment. the purpose is to inclusively embrace the environmental problems wherein the humanity challenges posited on, but this agenda may leave a room of doubt how far the human rights body can address the environmental destruction as it needs the interplay of culture and environmental ethics to promoting such concepts. therefore, this paper aims to identify the justification of how human rights in the environmental protection in the contemporary discourse are bringing to light, as many current cases attempt to linkage the environmental approach to the human rights instrument, such as the rights to life, healthy environment, and intergenerational equity. to analyse further, the theoretical framework in this paper will be explicated by environmental culture paradigm which illustrates the egalitarian concept between human and environment to elicit the clear thoughts of how human rights is naïve to protect the environment. this article will firstly depict the human rights and the environmental protection discourse and then, explore the naïveté narratives of environmental culture about the ecological crisis roots that are fundamentally anthropogenic, as to reflect the ground realities how this nexus will play out. finally, this paper found the moral justification per se relies on the effort of elaborating the human prudence in their relationship with nature, albeit bringing the naïveté. keywords: environmental culture, environmental protection, human rights, naïveté. how to cite (chicago-16th): anggriawan wisadha, made adhitya, and grita anindarini widyaningsih. “human rights and the environmental protection: the naïveté in environmental culture.” udayana journal of law and culture 2, no. 1 (2018): 73-96. https://doi.org/10.24843/ ujlc.2018.v02.i01.p04. doi: https://doi.org/10.24843/ujlc.2018.v02.i01.p04 vol. 02, no. 1, january 2018, 73-96 74 it is an exhaustive contention that every social problem will necessarily ensue human rights claims2 included the environmental problem that is inherently related to human livelihood. this insemination of human rights claims on environmental discourse arguably departs from stockholm in 1972, united nations (un) conference on the human environment which stated that every people have fundamental rights to freedom, equality, and adequate conditions in their environment who entitled them such life dignity and prosperity.3 this critically express the roles of human rights to protect human livelihood which later strengthened by the principle 3 of rio declaration on environment and development wherein concerned on sustainable meaning that the interdependence between human needs and environment entwined, “the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations”4 however, it can be seen perspicuously that these instruments rather put forward anthropogenic approach than the ecological-centric5 or in the nexus of the two crucial points, as this supported literally by principle 1 of rio declaration justified that human being is the salient points of such concern. however, the clear effort to identify the relationship between the human rights and the environment progressively appropriated by the united nations human rights council.6 which later on, the independent working group led by the special rapporteur john knox, to deeply observe the human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment.7 according to the report of the independent group, there is the environmental obligation arising from substantive human rights, such as the rights to a healthy environment as the prerequisite to the full enjoyment of human rights itself.8 this rapid development is understandable due to the upsurge human rights cases that pertain to the environmental problems in global context, such as from the largescale pollution ehp v. canada in 1945 to 1952,9 individual case of öneryildizv. turkey in european court of human rights about the exposure of dangerous industrial activities,10 maya indigenous community of the toledo district v. belize (2004) in 2 asbjørn eide and jan helgesen, the future of human rights protection in a changing world: fifty years of the four freedoms address, (oslo: norwegian university press, 1991), 196. 3 united nations, report of the united nations conference on the human environment, a/ conf.48/14/rev.1, available from www.un-documents.net/aconf48-14r1.pdf, principle 1. 4 declaration on sustainable and environment, rio de janeiro 3-14 june 1992, report of the united nations conference on environment and development, a/conf.151/26, vol.1, principle 3. 5 paolo galizzi, “from stockholm to new york, via rio and johannesburg: has the environment lost its way on the global agenda”, fordham int’l l.j. 29, no. 5 (2005): 956. 6 united nations human rights council (unhrc) res. 16/11, ‘human rights and the environment’. 24 mar. 2011. 7 unhrc res. 19/12. ‘human rights and the environment’. 20 mar. 2012. 8 united nations independent expert on human rights and the environment with the office of the high commissioner for human rights 21-22 june 2013. 9 ehp v canada (communication no. 67/1980) (1982) 3 3. 10 öneryıldız v turkey, app no 48939/99, echr 2004-xii, (2005). human rights and the environmental protection: the naïvete in environmental culture made adhitya anggriawan wisadha and grita anindarini widyaningsih udayana journal of law and culture vol. 02 no.1, january 2018 75 inter-american court of human rights (iachr) case about the communal property and land,11 or more recently, the philippines commission on human rights sent an amicus curiae brief to the domestic court of philippines to requesting for investigation major carbon polluters companies for their human rights violation regarding human-induced climate change.12 these cases arguably involved the states as well as the private companies to be held accountable for any cause of the environmental damage. why this becomes a crucial topic? as alan boyle argued that the human rights bodies may lift up ‘the standard of environmental quality based on the states obligation to take measures to control the pollution affecting health and life.13 this discourse is increasingly discussed in general human rights law. therefore, the idea of ‘greening’ mainstream human rights urgently demanded as environmental rights caseload in human rights courts recently multiplied.14 however, what is lack of this mainstream idea is the integrity of human ‘natural’ rights discourse itself in the context of environmental culture,15 as steven j. hood argued that promoting the human rights may be successful if applying the ‘conscious cultural learning’16 so that we shall thus find the moral justification of how human rights in the environmental claims in the contemporary discourse are bringing to light. meaning that it withdraws from a rationale inquiry about the environmental rights and the rights to environment, what are the rights actually for? to answer this, the narrative can be surreptitious to boiling down to the mere human entitlements instead of unfolding the human self-enclosure as part of ecological beings to preserve the intrinsic environmental values.17 this article, therefore, attempts to view a major complication of human rights in environmental protection ideas while human is ‘hero, villain, and victim’18 in the same time of environmental problems. also, the consequences of mainstreaming the environment protection into the existing corpus of human rights law can be futile, if this embodiment is not rarefying its justification first then postulate the legal architecture. not to mention the hardship it may suffer when examining the paradigm 11 maya indigenous community of the toledo district v. belize, case 12.053, report no. 40/04, inter-am. c.h.r., oea/ser.l/v/ii.122 doc. 5 rev. 1 at 727 (2004). 12 james e. hansen, ‘amicus curiae brief petition requesting for investigation of the responsibility of the carbon majors for human rights violations or threats of violations resulting from the impacts of climate change, commissioners, commission on human rights of the philippines’ published on 16th december 2016, https://business-humanrights.org/sites/default/files/documents/2017.08.28_jim.hansen.amicus_comm_human%20rights_0.pdf accessed on 12 february 2018. 13 alan boyle, ‘human rights and the environment: where next?’ the european journal of international law 23, no.3 (2012): 613. 14 ibid, 614. 15 thomas heyd, encountering nature towards environmental culture (hamphsire: ashgate, 2007), 11. 16 linda s. bell, andrew j. nathan, and ilan peleg, negotiating culture and human rights (new york: columbia university press, 2001), 4. 17 val pulmwood, op.cit, 98. 18 anthony synnott, re-thinking men: heroes, villains, and victims, (new york: routledge, 2009), 14, 99. 76 shift from the nature of rights (nature as property or common concern) into the rights of nature (the environment has their right to exist).19 therefore, to address this construction, this paper concluded that human rights conception per se is plain naïve in protecting environment based on this following series of explanation. 2. result and discussion 2.1. human rights and environmental protection historically, french revolution engendered the déclaration des droits de l’homme et du citoyen (1789) which could be said as the first authentic prescription of human rights context nowadays, in article ii said as the purpose of any political alliance is to conserve the nature and rights of man.20 this principle impelled a strong sense of individualism, the rights of man per se referred to own liberty, property, security, and resistance to oppression.21 however, this is repudiated by naturalism approach that described man has no right to such property had been fathomed by henry d thoreau who depicted human relationship with natural life illustration that: “…by avarice and selfishness, and a groveling habit, from which none of us is free, of regarding the soil as property, or the means of acquiring property chiefly, the landscape is deformed, husbandry is degraded with us, and the farmer leads the meanest of lives. he knows nature but as a robber.”22 he wanted to live deliberately in the woods and conveyed that the natural environment has its rights and human just acted to possess. of course, the idea of capitalism turned things around, neither did the notion of universal human rights. moreover, in universal declaration of human rights (udhr) by united nations which brings out the message of universalism, no single words are declaring the environmental rights (with affirmation) and environmental protection as regard which man can put in jeopardy on contrast.23 this could be understood historically that udhr was created under the desperation of world war ii cruelty and nazi upon the racial atrocities24 as to why elicited such common understanding that human per se should be therefore protected, respected, and fulfilled.25 19 susana borràs, “new transitions from human rights to the environment to the rights of nature” transnational environmental law 5.1 (2016):113–143. 20 dale van kley, the french idea of freedom, the old regime and the declaration of rights of 1789, (california: stanford university press, 1994), 1. 21 ibid. 22 henry david thoreau, walden or life in the woods, ed. robert f. sayre, (usa: library of america, 1985), 124. 23 see un general assembly, universal declaration of human rights, paris, 1948, http://www. un.org/en/universal-declaration-human-rights/. 24 john p. humphrey, ‘memoirs of john p. humphrey: the first director of the united nations divi¬sion of human rights,’ human rights quarterly 5, no.4 (1983): 387–439. 25 jay drydyk, ‘responsible pluralism, capabilities, and human rights’ in diane elson, sakiko fukuda-parr, and polly vizard, human rights and the capabilities approach: an interdisciplinary dialogue (new york: routledge, 2012): 43. human rights and the environmental protection: the naïvete in environmental culture made adhitya anggriawan wisadha and grita anindarini widyaningsih udayana journal of law and culture vol. 02 no.1, january 2018 77 later on, r. r churchill tried to identify the existing of environmental rights which thus presumed as lex lata in some of major environmental rights embodiment began in the international covenant on civil and political rights (iccpr/1966) and the european convention on human rights (1950) that actually the environmental rights derived merely from rights to life, property, land, etc.26 in line with that, according to the united nations on environmental programme, there are three primary legal dimensions of the relationship between human rights and environmental protection, they are: first, the environment as a precondition of full enjoyment of human rights, this further implies to states obligation to ensure the environmental protection in favour of fulfilling human rights.27 second, environmental protection as procedural rights which endorse the value of information access, participation, access to justice in favour of environmental matters and decision-making.28 third, the rights to environment as a human rights in it self29 which paid due scholarly attention to the ethical and legal debates. at the point of departure, this concept could thus provide a bigger picture how the human rights efforts to engage in broader narratives in environmental protection both international and domestic law. accordingly, the first study to scrutiny the relation between environmental degradation and human rights derived from the final report which was presented by fatma zohra ksentini in 1994 that later offered the landmark of interconnectedness in between.30 to date, the new resolution adopted by the human rights council on 24 march 2017 concerning human rights and the environment, the progress is more of encouragement to states for taking human rights obligations and commitments into account in their efforts to protect the environment.31 according to report of the joint ohchr-unep meeting of experts on human rights and the environment dating back in 2002, the meeting agenda was careful to touch upon the complexities of how human rights law does not protect the environment explicitly or left the question whether the right to the environment is a substantive right. one of the thought-provoking statement made by clapham and dinah shelton was the normative fact of the different approach in between; human rights is much of taking a remedial approach while the environ26 alan boyle and michael anderson (eds.), human rights approaches to environmental protection, (oxford: clarendon press, 1996), 90. 27 high commissioner for human rights and united nations on environmental programme, “human rights and the environment, rio+20: joint report ohchr and unep” published on 19th june 2012, http://srenvironment.org/wp-content/uploads/2013/05/jointreportohchranduneponhumanrightsandtheenvironment.pdf accessed on 10 january 2018. 28 alan boyle, op.cit., 621. 29 dinah l. shelton, human rights and the environment: substantive rights (2011) in malgosia fitzmaurice, david m. ong and panos merkouris, (eds), research handbook on international environmental law (gwu: legal studies research paper, 2011), 2013-33. 30 unhrc annual report res. 19/34. ‘analytical study on the relationship between human rights and the environment’. 16 dec. 2011. 31 unhrc res. 34/20. “human rights and the environment”. 24 mar. 2017. 78 mental protection emphasised the preventive and precautionary approach.32 this question seeks apparently a normative framework resolution but less considering the cultural discourses and discrepancy that it may encompass. indeed, it is something new but will later impact in society through relativism and in doing so, is a paramount endeavour. some prominent examples in this interdisciplinary legal-culture context are in the ecuador constitution that has put environmental protection as a substantive right and such as in the article 24 african charter on human and people’s rights declared that “all people shall have the right to a satisfactory environment favourable to their development.”33 therefore, this paper acknowledges that it is more important to know how human rights are defined within the environmental culture because this could be the significant reason to rejoinder the rudimentary human rights practice in challenging many environmental-related problems in the future (correcting of what is going wrong to our relationship with nature)34 as this may correlate to the question that reasoning about nature is too abstract for practical environmental policy-makers. in respect of examining the pivotal role of human rights in environmental protection, it is better to conceptually analyse it “in order for humans to respect the autonomy of nature itself, they must first understand the role of human culture in the shaping of the natural world”35 (or environmental culture). 2.2. why environmental culture? in examining the justification of human rights to protect the environment, we shall best come into the explanation from ground realities because the bottom-up approach is one of the alternative ways to capture the moral justifications of human rights present in practice, trying to explain its point from its legal practice.36 the concern is clear, that is to clarify the justifications of human rights in protecting the environment which is much needed in the first place37 to fulfil the pitfall of ecological crisis as same as what exactly the human ‘environmental’ rights are justifying, for examples in the human rights law or human rights as moral rights giving the pro tanto justification for forceful intervention.38 hence, this paper put weigh in what account of the legal practice which engenders the human rights justification in the ecological crisis. thus, the framework 32 report of the joint ohchr-unep meeting of experts on human rights and the environment (14-15 january 2002). 33 african (banjul) charter on human and peoples’ rights adopted 27 june 1981, oau doc. cab/ leg/67/3 rev. 5, 21 i.l.m. 58 (1982), entered into force 21 october 1986). 34 val pulmwood, op.cit., 9. 35 thomas heyd, op.cit., 12. 36 samantha besson, justification, in daniel moeckli, sangeeta shah, and sandesh sivakumaran (eds), international human rights law (oxford: oxford university press, 2014), 29. 37 ibid, 23. 38 john tasioulas, “are human rights essentially triggers for intervention?” philosophical compass 4, (2009), 940. human rights and the environmental protection: the naïvete in environmental culture made adhitya anggriawan wisadha and grita anindarini widyaningsih udayana journal of law and culture vol. 02 no.1, january 2018 79 of this writing is falling under the environmental culture as it clearly portrayed the ecological humanities more profoundly, that “resituate the human within the environment, and to resituate non-humans within cultural and ethical domains.”39 we shall thus know the primary aim of the new development human rights instrument linking to the environmental matters, including the environmental rights and the emergence of the rights of environment discourse, is to simply protect the environment and broaden the scope of rights protection.40 val pulmwood began questioning the rationalisation towards the hyperseparation of human identity from nature41, conceptually we have separated ourselves from the natural environment. this can be seen through an earlier stage of international human rights law established that puts human dignity and equality as main focus42 while human is deemed as inseparable units with the natural environment. this paper argues that the human denial of natural rights in the first place, made the rationalism generating, for instance ‘wealth’ as part of capitalist patriarchy derailed the concept of social justice and equality43 that brutally blindfolded the humanity which is deemed to be a cultural phenomenon, as pulmwood deeply surmised. the environmental culture in this context is in conquering the nature-culture binary in which bring forward “the positions human outside of nature and thus implicitly posits that human hold the powerful to control their destiny within the natural world which is devoid of meaning, values, and the ethics.”44 in environmental culture, we could understand this problem through gary snyder statement, “the world of culture and nature, which is actual, … is almost a shadow world now, and the insubstantial world of political jurisdictions and rarefied economies is what passes for reality.”45 as culture represents a prototype of human existence; the absence of a cultural association makes it arduous to create common identities and establish social values.46 while the complexity of environmental crisis nowadays simply reinvigorates the 39 deborah bird rose, thom van dooren, matthew chrulew, stuart cooke, matthew kearnes and emily o’gorman, “thinking through the environment, unsettling the humanities” environmental humanities (2012): 1-5. 40 john g. merrills, environmental rights in daniel bodansky, jutta brunnee, and ellen hey, international environmental law (oxford: oxford university press, 2007), 667. 41 val pulmwood, op.cit, 8. 42 united nations general assembly resolution 217 a, ‘preamble of universal declaration of human rights’ 10 december 1948. 43 maria mies and vandana shiva, ecofeminism (london: zed books, 2014),4. 44 deborah bird rose, et al, op.cit, 3. 45 patrick d. murphy, literature, nature, and other: ecofeminist critiques (new york: state university of new york press, 1995), 147. 46 javaid rehman, “international human rights law: a practical approach” (england: pearson education limited, 2003), 123. 80 ancient thoughts of ‘ecological values’ existences to human lives, and by contrast, the idea of phenomenal world has formulated the materialism to define what things are consisting of matter (real object), it seems that human sense-perceptions (experience) which lange restated, “… is conditioned by an intellectual organisation which compels us to feel as we do feel, to think as we do think, while to another organisation the very same objects may appear quite different, and the thing in itself cannot be pictured by any finite being.”47 this will enable us to overt the cognizance of the naïvenarratives as follows. 2.3. the naïveté narratives 2.3.1. naïveté let us begin to understand what brings out the naïveté to clarify this supposition; the words ‘naïveté’ has both philosophical and cultural meaning. as what val pulmwood rather like to use “environmental culture” because culture showed the way to concentrate on “…how deep, wide, and multi-levelled the cultural challenge must be to the systems that relate to us both materially and in terms of attitude and ideology to the ecologically world we all-too-unwittingly inhabit.”48 words naïveté’ also has a dualistic understanding as what human/nature binary has blindfolded the law positivism. first, illustrated in voltaire novel candide, oul’optimisme, which portrayed the naïveté’ through the human social condition that also coloured by religious blasphemy, satirical politic upheaval, and hostilities.49 also, this novel gave rise to the optimism philosophical thinking that is similarly of no wisdom and being irrespective of sufficient knowledge which is put as follows:”it is demonstrable that things cannot be otherwise than as they are; for as all things have been created for some end, they must necessarily be created for the best end. observe, for instance; the nose is formed for spectacles. therefore, we wear spectacles.”50 this lines of ‘nose are formed for spectacles’ thereby gaining a naïveté predicate. while nose is created not merely for glasses; more in-depth reason may lie upon other else. indeed, it is the rejection of epistemological objectivism to why such nose should be created in a way it is. human rights as discursive instrument showed the similarity when become reconciled to the practice in circumstances under the environmental culture. human rights have evidently succeeded, looked at its origin and long history, against human subjection and subordination that conceived moral 47 frederick albert lange, “the history of materialism and criticism of its present importance”, 1st german edition, (london: lund humphries, 1865), 158. 48 val pulmwood, op.cit., 4. 49 ian davidson, voltaire in exile, (new york: grove press, 2005), 53. 50 hugo grotius, the classic of international law, vol. ii, ed. james brown scott, (oxford: clarendon press, 1925), 814. human rights and the environmental protection: the naïvete in environmental culture made adhitya anggriawan wisadha and grita anindarini widyaningsih udayana journal of law and culture vol. 02 no.1, january 2018 81 dimensions. however, human rights were not created to see the human as part of whole nature51, it was seen unwittingly otherwise.52 arguably, this is the first mistake to view the needs for rights as only expressing the human preferences or interests53 in that time of needs. naïveté’ could also express the sacred phrase of ‘ecological denial’, people shrug off the responsibility of knowing the truth especially in an environmental crisis that caused by human activities.54 in naïveté realism, this may point out that consciousness is experienced without reflective attitude, just dull acceptance.55 having inspired by the human rights in ‘righting’ the environment, it seems the ideas should echo like this, as quoted in robin attfield “do trees have rights? only what is valuable in its own right has rights…”56 the current argument would be cynically thought that rights have no singularities of moral reasoning and it, therefore, does appear dissonant to delineate trees as a matter of justice.57 put simply, the use of word naïve is a symbol of capturing the pragmatism rejection in favour of moral idealism that human rights protection achieved in respect of environmental protection. 2.3.2. do human rights ignore the intrinsic environmental values? there are two main assumptions established to answer the question, first, human rights in protecting environment is self-evident to meet the needs of humankind it self, even in the domains of the environmental rights which will entangle in accordingly, second, the realisation of environmental protection in human rights bodies frugally vindicated a naïveté scenario in contemporary discourse. this paper viewed that human rights per se are justified by the human prudence58 which approached and strengthened by john rawls, pretty akin to fairness, that is people need to secure their minimum standard of life as “each person claim primary goods as a matter of human right.”59 primary goods could be everything, included, 51 as eleanor roosevelt, the first chair of human rights commission congratulated the universal declaration of human rights, the idea of environmental protection was missed. this was not because she forgot the environment, it is because the human rights instrument drafted before the dawn of modern environmental movement. john knox in his keynote speech at 2014 unitar-yale conference. 52 val pulmwood, the feminism and the mastery of nature (london: routledge, 1993), 172. 53 john g. merrills, op.cit, 665. 54 david w. orr and david ehrenfeld, “none so blind: the problem of ecological denial,” conservation biology 9, no. 5 (1995): 985-987. 55 kenneth t. gallagher, the philosophy of knowledge (california: fordham university press, 1962), 57. 56 john o’neil, r. kerry turner, and ian j. bateman, environmental ethics and philosophy, (northampton: edward elgar publishing, 2002), 345. 57 ibid, 346. 58 james w. nickel, making sense of human rights: philosophical reflections on the universal declaration of human rights (london: university of california press, 1987), 85. 59 briand orend, human rights: concept and context (canada: broadview press, 1971). 82 rights to the health environment. because there is no ‘rights reasoning’ narrative in environmental protection values, so it has not been possible to claim environmental issues without involving human rights in it. but in practice, the attempt to righting environment is eye-opening, away before the discursive point of human rights and environmental protection begin, the case of sierra club’s legal battle to stop the development plan by walt disney enterprises, inc., in the mineral king valley of the sierra nevadas, could be initial precedent of rights reasoning joined the table of debates. it was christopher d. stone who used such case to illustrate the theory of natural objects, in themselves, should have rights before the law. though the case ultimately lost, the supreme court of united states found an intriguing approach to the question: should trees have rights?60 in environmental culture, this may unravel the crisis of reason regarding the ecological crisis that we are currently facing for keeps. to give rise the alternatives that human rights broaden up its function, must now accentuate the environmental rights regime to riposte such environmental issues. in fact, the human rights consequently put the environment as an instrument.61 furthermore, diez et al., stated that “in measuring values to inform policy decisions, we have no direct way of assessing intrinsic value but have to rely on observations of human behaviour”.62 we could only see the environment values depend on the human activities, this is naïve, on the other hand, it writes off other ecological beings and integral roles. historically, the rejection of basic ideas of natural rights (which we assumed the use of environmental rights are still referred to the basic naturalism) are championed by jeremy bentham, put simply that “natural rights is simple nonsense: natural and imprescriptible rights, rhetorical non-sense, non-sense upon stilts.”63 maurice cranton, later refuted this stance, which said natural rights can be understood as universal moral rights, befall from the human rights claim naturally proposes.64 these debates are posited on actual depth understanding of human existence and others existential beings. david e. cooper used the prometheans of marx and nietzche ideas to identify the human world, are not always analogous, but in the context of human world which based the ideas that “there is no discernable reality independent of human beings” and marx wrote “nature…. taken… in its separation from man is nothing for 60 christopher d. stone, ‘should tree have standing-toward legal rights for natural objects’, s. cal. l. rev 45 (1972):450. 61 thomas dietz, amy fitzgerald, and rachael shwom, ‘environmental values’ annual review environmental resources 30 (2005): 335-372. 62 ibid, 341. 63 jeremy bentham, anarchical fallacies; being an examination of the declaration of rights issued during the french revolution, republished in the works of jeremy bentham, vol. ii, ed. j. bowring (edinburgh: william tait, 1843), 501. 64 maurice cranston, op.cit., 16. human rights and the environmental protection: the naïvete in environmental culture made adhitya anggriawan wisadha and grita anindarini widyaningsih udayana journal of law and culture vol. 02 no.1, january 2018 83 man”,65 they showing agreement. apparently, marx tenably conjectured the universality or properties are ‘anthropocentric’. comparably, concept of man and nature in asian philosophy are completely opposed the anthropocentric approaches, most of the literature put human in the central point of universe (part of environment), graham parkes (1989) summed up; as hereby stated in lao-tzu 25, “man models himself on earth, earth on heaven, heaven on the way, and the way on what is naturally so.” there is the self-identification of being ‘man’ to how nature moves. human beings are encouraged to be like water, thawing ice, uncarved wood, a valley, grass, and trees.66 this, for rationalist, will be repudiated as backwardness and non-sense. but nietzsche ever suggested to invert “imaginatively” the human position now and went back to the primitive society to treasure the human relations to nature back then.67 another great basic asian philosophy can be found in mahavakya vedic in chandogya upanisad 6.8.7 that delineated the conversation between uddalaka and his son shvetaketu about the self and other existence by comparing environment elements such as trees, water, etc.68 one can be cited, “even though we cannot see it, the self is within all things, and there is nothing that doesn’t come from him. “this invisible and subtle essence is the spirit of the whole universe. that is a reality. that is the truth. and you, shvetaketu, you – are that!”69 this depicted the essentialism as the fundamental basis for seeing the light of ‘self in things’, which has no definitive distinction. like wise, in the confucius values that approached more contextually human in social structure and ecological context, based on j. baird callicott who summarised that confucius placed upon “a social model of human individuality which is an analogue of ecology’s model of species adapting to niches in the economy of nature and thus acquiring their specific characteristics”.70 in the latter, this unbolted the discourse between human and the nature that keep evolving in each relativism and shaping its foundation of argument. 2.3.3. legal construction to make clear, dinah shelton fittingly deciphered the human rights, environmental rights, and the right to environment which displaying three main proposals: 65 david e. cooper, the measure of things: humanism, humility, and mystery, 1st edition, (united states: oxford university press, 2002), 79. 66 j. baird callicott and roger t. ames, nature in asian traditions of thought, (albany: state university of new york press, 1989), 82. 67 david e. cooper,op.cit. 68 edwin raphael, the pathway of non-duality, advaitavada: an approach to some key-points of gaudapada’s asparśavāda and śamkara’s advaita vedanta by means of a series of questions answered by an asparśin, (india: philosophy series. motilal banarsidass, 1992), 30. 69 ibid. 70 j. baird callicott, “conceptual resources for environmental ethics in asian traditions of thought: a propaedeutic source: philosophy east and west”, environmental ethics 37, no. 2 (1987): 115-130. 84 first, environmental problems may be combatted through the assertion of existing human rights, such as the rights to life, personal security, health, and food. in this regard, a safe and healthy environment may be viewed either as a pre-condition to the exercise of existing rights or as inextricably intertwined with the enjoyment of these rights. a second, intermediate position proposes a set of “environmental rights” (rights of the environment as well as rights to the environment) based upon existing rights to information about and involvement in the political decision-making process. third and most ambitiously, a specific “right to environment” could be formulated and added to the current catalogue of human rights.71 given that environmental agenda could not be fully accommodated in human rights instrument without deconstructing the concept of human rights and misshape such instrument,72 but one of the alternatives is to use the justification to play out in between the interplay human rights in the environmental values system, this regurgitation will inform us the needed course of action,73 such as applied in policy making and environmental security. environmental culture best reflects on how an anthropocentric logic structured the human self-enclosure that turns to be known as ‘rationality’ and this rationality has imprisoned multi-aspect of culture.74 as an example, the rights to a healthy environment as derived from the principle 1 rio declaration which stands as soft law, the current international law instrument is vague at such whether the environmental policy will protect the environment or peoples’ rights thereto.75 for examples, the financial development may require deforestation or industrial manufacturing development will inevitably dispose of the pollution, in a certain degree, this may affect the people. but as the protection of ecosystem per se lacks a human value or protection of people, then a rights-based approach to the protection of the environment would become problematic, unless, non-human values were inserted too in the system.76 as early mentioned, this paper argued what fundamental basis in this idea of a rights-based approach to the environment, is relied upon the prudential reasons which validate the prospect of people’s good life, especially in their human ecosystem. however, for that matter, as examples in article 2 (1) of the international convention on economic, social, and cultural rights (icescr/1966) foregrounded 71 dinah shelton, “human rights, environmental rights, and the right to environment”, stanford journal of international environmental law 28 (1991): 105. 72 ibid, 138. 73 donald k. anton, dinah l. shelton, environmental protection and human rights (new york: cambridge university press, 2011), 119. 74 patsy hallen, “environmental culture: the ecological crisis of reason” (rev), ethics and the environment 7, no. 2 (2002): 182. 75 ilias bantekas and lutz oette, international human rights law and practice, 2nd edition, (united kingdom: cambridge university press, 2016): 592. 76 c. redgwell, “life, universe, and everything: a critique of anthropocentric rights”, in a. boyle and m. anderson (eds.). op.cit., 71. human rights and the environmental protection: the naïvete in environmental culture made adhitya anggriawan wisadha and grita anindarini widyaningsih udayana journal of law and culture vol. 02 no.1, january 2018 85 the state obligation to realise economic social culture rights by making the maximum utilisation of their available resources. the maximum utilisation of a state’s resources may provoke few critical purviews; this right partakes utilised-based ethics, which allows deliberately to the state to explore what they have or what it is defined as ‘available resources’. the main problem begins in multifaceted aspect on social, economy, and cultural conjectures to what measurement is to address this phrase specifically.77 this is a second-rights generation that seemingly illustrates the contradictive thoughts in human rights that disregarded environmental protection and valued the natural object as an instrument in the first place. from the case above, we conclude as the barbara rose johnston stated: “the abuse of human ‘environmental’ rights obviously occur within a cultural, as well as political, economic and biophysical context. human environmental rights violations often occur as a result of efforts to gain control of land, labour, and resources of politically land/or geographically peripheral peoples. the cultural context involves a process of social construction, where marginal peoples are seen to be biologically, culturally, and socially inferior, justifying state domination.”78 furthermore, applying existing human rights to environmental protection further can gape at some cases submitted to the court.in the industrial emissions and health behaviour of poor living people in the polluted area, beatriz mendoza v. the world, an individual led a class action filed a lawsuit against the government as well as 44 industrial polluters, which allegedly violated her constitutional right to a healthy environment. in 2006, the supreme court of argentina commanded the authorities and the industry to fulfil the strict procedural remedies in the matanza riachuelo river polluted areas.79 another case studies pertaining the rights to healthy environment from the forest dwellers, the minors oposa v.secretary of the dept of environmental and natural resources concerning the intergenerational environmental equity / rights in philippines’ deforestation of tropical forests that claimed “16 million hectares of rainforest twenty-five years prior to the suit, only 1.2 million had remained intact”80 the notable principle that is recognised here regarding ‘the interdependence and indivisibility of rights’ per se that the court approached in the civil and political rights since ‘these basic rights need not even be written in the constitution for they are assumed to exist from the inception of humankind.’ this aimed to protect the unborn or future generations amidst the forested-groups.81 in the judgment of marangopoulos lignite v. greece, showed that greece was proven to 77 ilias bantekas and lutz oette, op.cit, 408. 78 barbara rose johnston, “human rights and the environment”, human ecology 23, no 2, (1995): 115. 79 beatrice mendoza et al. v. state of argentina et al. case concerning damages resulting from environmental pollution of matanza/riachuelo river, m. 1569. xl. 80 ilias bantekas and lutz oette, op.cit., 596. 81 ibid. 86 conduct non-compliance with the right to health under article 11 of the european social charter regarding the air pollution in the area that has been found causal relations to many respiratory diseases. in which, the severe pollution found in the eordea valley in western macedonia – kozani and florina prefectures, and the megalopolis area in the peloponnese – arkadia prefecture, affected local people.82 apparently, the definition of the environment through human rights that adopted in the international nor regional agreement is not fully-fledged. the definitive term of an environment is just merely concerned about human supporting units. the logical construction a priori that is touched off, as though, if the environment was destroyed and no human has found to be a victim, this need not be a claim.83 the international environmental laws hould be very critical to improve the environmental protection but on the other side, it lacks of stringent application compared to the human rights treaty bodies and its implicated compliances both in international and national.84 therefore, the international law has to suffer the dilemma of notions of rights to healthy and ecologically sound environment85, let alone the self-standing approach in this rights bodies protection itself. the two international covenants referred to the right to a healthy environment in the context of the right to life. iccpr, for instance, requires environment improvement for supporting the individual development or as fortified in icescr to measure the standard of health.86 later, the human rights committee emphasised the rights to life could precede the rights to healthy environment as such, where the protection of person life means that states should be obliged to take all possible measures to alleviate the infant mortality and otherwise to increase the life expectancy.”87 as we could see, the legal construction remain impractical, not to mention the paradigm shift of identifying the rights of nature. however, a review of a self-standing approach fell under national law instead, as undertaken in the ecuador constitution, “wheeler c. director de la procuraduria general del estado de loja, decided by a provincial court in ecuador, was the first case in history to vindicate the constitutional rights of ‘pachamama’ – often translated as ‘mother nature’” as follows:88 82 marangopoulos foundation for human rights (mfhr) v. greece, 26th april 2005, collective complaint no. 30/2005, case document 1. 83 sumudu atapattu, “the right to a healthy life or the right to die polluted? the emergence of a human right to a healthy environment under international law”, tulane environmental law journal 16, (2002): 65-126. 84 laura horn, “the implications of the concept of common concern of a human kind on a human right to a healthy environment”, mqjicel 1 (2004): 252. 85 rebecca bratspies, “do we need a human right to a healthy environment?”, santa clara journal of international law 13, no.1 (2015): 31-69. 86 see international covenant on civil and political rights, art. 6 and international covenant on economic, social and cultural rights, art. 12. 87 un office of the high commissioner for human rights, general comment no. 6, ‘the right to life (article 6)’, 16th session, 30 apr.1982, para. 5 88 erin daly, “the ecuadorian exemplar: the first ever vindications of constitutional rights of nature” review of european community and international environmental law 21, no 1 (2012): 63. human rights and the environmental protection: the naïvete in environmental culture made adhitya anggriawan wisadha and grita anindarini widyaningsih udayana journal of law and culture vol. 02 no.1, january 2018 87 art.10 rights entitlement persons and people have the fundamental rights guaranteed in this constitution and in the international human rights instruments.nature is subject to those rights given by this constitution and law.89 art.71 nature or pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. every person, people, community or nationality, will be able to demand the recognitions of rights for nature before the public organisms. the application and interpretation of these rights will follow the related principles established in the constitution. the state will motivate natural and juridical persons as well as collectives to protect nature; it will promote respect towards all the elements that form an ecosystem.90 this constitutional law even steps further for treating environmental as not only having the instrumental role but as constitutional and law subject, arguably this purified the intrinsic environmental values out of human-centeredness, rights recognised substantively and self-standing. as prescribed in article 12 of the south african constitution as well which stated that “everyone has the right (a) to an environment that is not harmful to their health or well-being, and (b) to have the environment protected…”91 the indigenous people and other cultural communities have seriously played a significant political role in the country like bolivia, for examples, they instituted law of mother earth in 2010 were mainly rooted from their indigenous philosophies called sumak kawsay that emphasised the concept of harmony and nature as the central creation.92 but could it be said as constitutional pragmatism? or simply naïveté? lalander has further introduced the contextualization. in the stark contrast, in the international legal construction, invoke the environment has the substantive rights will surely meet a convoluted plot in the extraterritorial application, for examples. however, treating environment as conceived in procedural rights dimension, can be more applicable. as practiced in the 1998 aarhus convention, this convention may serve the environmental protection matters as supported in a way of the access of justice, information, and public participation, for example in the case lopez ostra v spain (1994) which denoted the “severe environmental pollution may affect individuals’ well-being”93 and therefore this convention may 89 political-economic ii rights charter 1 entitlement, application, and interpretation principles of the fundamental rights, constitution of the republic of ecuador national assembly legislative and oversight committee published in the official register 20 october 2008. 90 tittle ii rights chapter 7th rights of nature, constitution of the republic of ecuador. 91 the south african constitution, art.12. 92 rickard lalander, “rights of nature and the indigenous peoples in bolivia and ecuador: a straitjacket for progressive development politics?” iberoamerican journal of development studies 3, no. 2 (2014): 154. 93 lopez ostra v. spain, 20 ehrr (1994) 277. 88 enforce the existing human rights law to the impose the environmental protection obligation on states.94 in addition, this approach is currently the most possible in protecting the environment by the human rights instrument. as a result, in the case a quo, the european court of human rights afforded the remedy for an environmental cause of action.95 then, what is wrong with our human rights incorporating into the environmental matters? it is safe to say, currently naïve but it is not ‘wrong’ by radical means or even some said this is flawed.96 actually, human rights are substantially based on rationalisation of human disembeddedness of his nature at the time that was born. firstly, human rights have logical structure of centrism, the model of anthropocentrism as prior depicted. in this particular view point also showed that rationality pitfall that falls short the ‘human rights’ to embrace the intrinsic environmental values. human rights is an impure form of separation to its environment, this is merely creating, as val pulmwood always called, ‘human-self enclosure’. as we are seeing nowadays, the dominant paradigm remains strong in which sadly, it is entrenched within this age of ecological crisis where the biosphere has no powerful standing themselves in human supremacy, given that they have all irreplaceability, non-exchangeability, and limits.97 secondly, due to the doctrine conundrum of legal expansion in this concept, say, to generate the new catalogue of the environmental rights and rights to environment that appreciates the intrinsic environmental values is difficult or only officially understood is not enough, if the legal architecture remains unchanged. we can only refer it to numerous international human rights law which implicitly allows expanding such rights to be recognised even it is still under robust anthropocentric approach. for that matter, the ‘expansive’ right to environment is deemed to be a way of amplifying the environmental protection.98 such as the rights to a healthy environment, now has shown a rapid pace of adoption in 177 of the world’s 193 un member nations as of 2012, “most countries recognise this right through their constitution, environmental legislation, court decisions, or ratification of an international agreement.”99 according to the common objectives of human rights and environmental law, dinah shelton argued, the conflict of human and environment do not present in 94 alan boyle, op.cit, 622. 95 luis e. rodriguez-rivera, “is the human right to environment recognised under international law? it depends on the source” colorado journal of international environmental law and policy 12 no. 1, (2001): 7. 96 luis e. rodriguez-rivera, op.cit, 4. 97 val pulmwood, op.cit, 120. 98 john h. knox, “climate change and human rights law”, va. j. int’l law 50, no.1 (2009): 163 . 99 david r. boyd, “the constitutional right to a healthy environment” (2013) law now in relating law to life in canada, [online] available at http://www.lawnow.org/right-to-healthy-environment/ accessed on 25 december 2017. human rights and the environmental protection: the naïvete in environmental culture made adhitya anggriawan wisadha and grita anindarini widyaningsih udayana journal of law and culture vol. 02 no.1, january 2018 89 such way (this paper examined in environmental culture), that is impossible to clearly separate the interest of humankind from environmental protection.100 shelton added that to secure the intrinsic values of the biosphere is to understand that human is not viewed apart from or above the natural universe, but displaying an interdependency.101 this position closed to the objective of “human emancipation and fulfilment in an ecologically sustainable society.”102 we also joined shelton’s argument, but this paper also further criticised, if this idea currently only brings forward naïveté, still lack of respect of environmental ethics and legal instrument, this can amount to legal pitfalls. 3. conclusion there is some conclusion we could present from this paper, as follows; first, we have to admit the significant complication of human rights and environmental protection in environmental culture lies in two reasoning, the prudential justification in this human right per se and the reliance of adequate legal umbrella. in the prudential rationale, human ‘environmental’ rights could only set apart the intrinsic environmental values, this will undeniably affect the foundation of policy making for further and the ecological denial of human embeddedness in nature only perpetuate the environmental crisis, neither do the environmental law nor human rights law may redress the ongoing problem. unfortunately, the realisation of the hierarchical anthropocentricity that undermining the essence of nature is essentially deep-rooted in society, this imparts our current environmental culture. in the other hand, the current legal architecture to satisfy the emergence of environmental rights/rights to environment could limitedly be applied pro tem. nonetheless, the rights to healthy environment establishment need to be appreciated; many cases now take a lot of pluck to win the remedies and responsible measures to save the human ecosystem. as viewed in the case law, the practice is justifiable as a self-standing or corollary to other rights bodies.103 however, there are many legal could should raise in further contexts of environmental rights/rights to environment, such as is moral or legal rights?; who bears the rights, it either individual or groups?; who bears the corresponding obligation to protect the environment?; or in the environmental ethics domain, “how are our obligations and responsibilities toward the natural world to be weighed against human values and interests?”104 100 dinah shelton, op.cit., 109. 101 alexander kiss and dinah shelton, international law (ardsley, new york: transnational publishers, 1991), 11. 102 r. eckersley, “anthropocentric/ecocentric cleavage” in julie newman and paul robbins (ed), green ethics and philosophy: an a-to-z guide (usa: sage, 2011), 106. 103 ilias bantekas and lutz oette, op.cit, 595. 104 paul w. taylor, respect for nature: a theory of environmental ethics (new jersey: princeton university press, 2011), 10. 90 second, in identifying the rights-based approach in environmental protection, we reaffirmed the human-centredness in environmental culture, and we share the explanation about how the cases jurisprudence clearly put the human in culture determinacy at stake. indeed, the goal of this agenda is not the imposition of the eco-centric view, but thoroughgoing discourse, we, therefore, see the global change in a way we conceive of environmental protection, as “it is important to protect nature, but not under the blanket of protecting the human interest.”105 in the latter, what is left is human-centred culture. the hegemonic above radical exclusion of human from other sentient beings or insentient is obvious. the naïveté narratives here then construed a composition of explaining legal construction in environmental culture context which bridged by basic justification, human prudence. however, because the human rights in efforts to protect environment is still newborn (though officially understood) but still lacks of adequate theory support nor legitimation in the global plane, this is thus arguably naïve, especially tackling the current challenge in worst-off position, environmental destruction/ ecological limits by human and by the self-nature system. in other words, the environmental culture ‘crisis of reason’ remains perpetual through inadvertence of asserting this new rights regime. however, the rights expansionism, expanding future 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recognised seasonal employer policy and the contractual rights of indonesian workers lukas banu * master of law, faculty of law udayana university matthew gardiner** charles darwin university school of law 1. introduction 1.1. background there is a profound issue on acts of violence, including human rights, in various countries that put workers, including indonesian workers, in a position of the victim which has caused the government of indonesia to pay serious attention to the issues and subsequently assess the indonesian policy on migrant workers. in 2012 the abstract the recognised seasonal employer (rse) scheme has attracted overseas workers to work in the horticulture and viticulture industries in new zealand. they come from various countries all over the world, to stay and work in new zealand. this article would explore some legal issues arise from new zealand’s rse policy in particular relation with the indonesian migrant workers who seek a job in new zealand. it would also analyze the rights and obligations of the workers as stipulated in the employment contract concluded by the indonesian workers and the new zealand companies under the rse scheme. the normative legal writing combines the research on relevant public and private legal instruments and comparatively examines both national law and regulations of indonesia and new zealand in order to afford a balanced insight of the law of both countries. this study found that on one hand, new zealand laws have already covered all aspects of workers and determined new zealand’s government obligation to oversee the employment agreements, while on the other hand, indonesian law and regulation do not cover explicitly the issue of protection of indonesian workers who work in new zealand under the rse scheme. this article offers constructive recommendations addressed to any relevant stakeholders in order to improve the legal nature, institutional role and procedure for supporting new zealand’s rse policy and in the same time the better protection to the indonesian migrant workers. keywords: recognized seasonal employer, policy, new zealand, indonesian migrant workers, employment contract. how to cite (chicago-16th): banu, lukas, and matthew gardiner. “the new zealand’s recognised seasonal employer policy and the contractual rights of indonesian workers.” udayana journal of law and culture 2, no. 1 (2018): 28-51. https://doi.org/10.24843/ujlc.2018.v02. i01.p02. doi: https://doi.org/10.24843/ujlc.2018.v02.i01.p02 vol. 02, no. 1, january 2018, 28-51 1 * corresponding author: luc_chry@yahoo.com ** email: mjgardiner@me.com udayana journal of law and culture vol. 02 no.1, january 2018 29 government of indonesia has decided a shock decision, to ban the placement of workers to foreign countries, such as middle eastern countries, including saudi arabia, which has no government to government (g to g) memorandum of understanding (mou) with indonesia or have no specific laws for protecting foreign migrant workers in their country.1 this policy has been instituted due to the number of foreign legal problems arising from bad relations between workers and employers that have emerged due to bad treatment, such as low salary, low standard of facilities, and no health insurance, into a more serious breaches of law, such as extreme working hours, punishments, and mental or physical violence. instead of that dark picture of the life of migrant workers in certain parts of the world, new zealand has the opposite situation. indonesian migrant workers have enjoyed excellent treatment within the country, such as good salary, well above standard facilities, housing and transportation, break time within working hours, well above standard cafés for enjoying their break times, holiday or perhaps leave, health insurance, and well above standard legal basis for the relationship between workers and employers which are all very well organized. this situation turns into good news for indonesian workers and has caused new zealand to become one of the top choices for finding a job. the good social atmosphere of the country has also encouraged indonesian migrant worker to visit and stay in the country. on another hand, indonesian workers have a high reputation in new zealand; they are commonly recognized as high profile workers, with good behaviour, competent, committed, and consistent in their performance of their duties which has led the business entities in new zealand to take into account the position of the indonesian workers.2 unfortunately, the problem arising out of the process of transferring of the workers, including those faced by the workers, has not been revealed by the indonesian workers who are looking for a job in the country. most workers are non-school graduates and have no ability to communicate in english. they mostly come from the lowest socio-economic group of people which see an opportunity for having a job as a golden opportunity. they are recruited and transferred to the country by labour brokers. some of whom are dishonest in regards to the actual challenges faced by the indonesian workers in the country. so, they deciding in the dark and accept the situation as it stands.3 1 luqman hakim and anwar fitrianto, “political economy of sending domestic workers abroad: case study of indonesian migrant workers”, mediterranean journal of social sciences 6, no. 4 (2015) ): 321. https://doi.org/10.5901/mjss.2015.v6n4p316 2 kementerian luar negeri indonesia. “selandia baru sambut baik 115 tenaga kerja indonesia”. https://www.kemlu.go.id/id/berita/siaran-pers/pages/selandia-baru-sambut-baik-115-tenaga-kerjaindonesia.aspx 3 see arbi sumandoyo, “berharap jadi tki di new zealand, aryanto tertipu rp 20 juta”, merdeka. com, september 18, 2012; detik news,”wni diimbau waspadai penipuan tawaran kerja di selandia baru”, january 27, 2010. 30 new zealand is a country located in the southwestern pacific ocean and part of the british commonwealth. the sustained economic growth of the country has produced a greater demand for workers, particularly temporary foreign migrant workers, due to the limitation population of the country and lower wage expectation. new zealand is a country with a high-reputation for its distinct quality horticultural products and for sustaining its position economically they need support from other countries by means of providing temporary migrant workers.4 the government of new zealand has covered these needs under the rse scheme. the scheme has enabled the temporary entry of overseas workers, which mostly from the south pacific countries, to enter into and to work in new zealand. it is worthwhile to reveal that many indonesian citizens have also worked in new zealand companies, although the rse policy does not fully conform with the indonesian law and regulations, particularly of those which cover the issue of protection over the indonesian workers. this may also lead a question on an appropriate legal protection for indonesian workers which is supposed to be conducted in the beginning and within the set up processes of the contract and then continue throughout its implementation. this article will assess some of the legal issues arising from the new zealand rse policy, issues which may strongly affect the continued use of indonesian workers. it particularly is concerned with the rights and obligations of the parties to the employment contract concluded by the indonesian workers and new zealand company drawn up under the rse scheme. this article will also offer constructive recommendations addressed to any relevant stakeholders in order to improve the legal nature, institutional role, and the procedure of the development of employment contract, particularly those of which related to the placement of the indonesian workers, under the new zealand’s rse policy. 1.2. method and structure this article has been developed under the policy-oriented approach, an approach requires a mixed formulation of method between normative and fact-based approach.5 the normative approach has been employed for searching and analyzing any legal instrument related to the employment contract, includes private documents, a model of employment agreement,6 international and regional legal instruments in order to 4 the three major categories of fruit are apples, grapes and kiwi fruit. the horticultural industry requires a large number of workers so that they are able to balance the high volume of seasonal work. the new zealand government has been attempting to address this shortfall in employment by developing a guest worker program which allows companies to address the fluctuating labour market. jhingan ml, ekonomi pembangunan dan perencanaan, (jakarta: raja grafindo persada, 2008), 412. 5 ida bagus wyasa putra, “teori hukum dengan orientasi kebijakan (policy-oriented theory of law)”, (denpasar: udayana university press, 2016), 118. 6 private agreements employment agreement, contract between dms progrowers ltd and employee, commencement date 26 march 2017, expiry date 1 october 2017. the new zealand’s recognised seasonal employer policy and the contractual rights of indonesian workers lukas banu and matthew gardiner udayana journal of law and culture vol. 02 no.1, january 2018 31 obtain the framework of protection of the rights of the migrant worker, and domestic law and regulation of indonesia and new zealand for gaining a balanced legal insights of the both countries.7 the fact-based approach has been conducted for extracting the normative message of the context, including the proper protection of workers, which necessary for supporting the improvement of the state legal policy and the private legal instrument. under the approach, the message of the context is the compulsory material required for the input of law and policy improvement process. this article is an advanced version of a jointly academic research conducted in bali (indonesia) and new zealand in december 2015 which was commenced under the institutional research scheme of udayana university. the research that has been held in bali has covered most steps of the normative research including outlining process, exploring and analyzing the research materials, and also a small portion of the facts-based research, the interviews with the indonesian government, agent and workers. the research that has been commenced in new zealand was the contextual research which includes a visit to the company where the indonesian migrant workers are working in the packhouse and in the orchard and visit to places where they are living. interviews have also been done with the workers, the company’s human resources, all levels of management, and the foundation facilitating the transferring of the worker from their origin country to the country destination. despite the concern of the first author regarding the issues since 2007, some updated information has obtained by the author through direct observation and interview to dms pro-growers management in new zealand, 26th to 28th of may 2017. this article has been organized under the following structure: (1) the introduction, consist of background and method; (2) result and analyses; and (3) conclusion and recommendation. the first section introduces the reason for the research and the method, including materials supporting the analyses. the second section performs some aspects of legal analysis, covers: the protection of migrant workers and their contractual obligations under the global concern as enshrined in some international and regional legal instruments; the analysis of the recognised seasonal employer policy of new zealand; analysis of the results of comparative works regarding the legality of rse’s employment contract under indonesian and new zealand laws, including a specific lesson learned from the practice of new zealand’s company, namely dms-pro growers, that recruits indonesian workers under the framework of rse, including a legal analysis on the employment contract between the indonesian 7 for example, authors take note on publication made by devi melisa damiri and mohammad benny alexandri who carry out a comparative study concerning the level of non-standard employment relationships (initial workerscontract employees and outsourcing) in nigeria and indonesia found that there is not so much differences between the two countries. the study reveals that nigerian labor laws differ between standard and non-standard workers in terms of rights and opportunities. this study reccommends that there is a need for concrete action on how government policies and regulations can work with companies that employ non-standard working relationships to protect workers and create more and better jobs. see devi melisa damiri and mohammad benny alexandri, “industrial relations: comparative non-standard employment relationship in nigeria and indonesia”, jurnal adbispreneur 2, no. 1 (2017): 79-90. https:// doi.org/10.24198/adbispreneur.v2i1.12881. workers and the company; and the analysis over the issues of documentation process, as well as the oversight mechanism and cooperation with the agents involved in the transfer of the worker. in the last section, the article summarizes the results of the legal analysis comprising all aspect of the analyses and offers some policy and technical recommendations. 2. result and analysis 2.1. global concern on the protection of migrant workers and their contractual obligations there are many international instruments that emphasize the needs of protecting of the lives and the livelihood of workers who work outside their home countries. the general guidelines on this particular concern have been drawn up under the rio declaration on environment and development which pay attention to the efforts of poverty eradication by means of improving peoples’ standards of living and strengthening the rights of workers’ participation in the shaping and implementation of the environmental and development strategies.8 some international labour organizations (ilo) conventions have also addressed the issue in a certain way. the first example is ilo convention no.143 which has set an obligation to the state parties to take measures with regard to migrant workers in order to improve their awareness in regards to their rights and obligations and to provide equal treatment to ensure that the general and particular working conditions required by the convention are properly fulfilled.9 secondly, the ilo convention no.97 has covered an issue of the employment contract. this convention requires the parties to the convention which have an oversight mechanism of agreement or contract, have the obligation to undertake delivering a copy of the contract to the migrant worker before the time of their departure or at the reception centre in the arrival area of the immigration counters and also ordered that such employment agreement shall include provisions indicating the work conditions and remuneration.10 in addition, this convention also underlines the need for clarity of the means of enforcement of the contractual obligations of the employers.11 the international convention on the protection of the rights of all migrant workers and members of their families (icmw) is one of the treaties that is strongly coloured by human rights legal concepts and comprehensively regulates the basic protection of the rights of migrant workers and their families. this convention 8 rio declaration on environment and development, principle 29. 9 see convention no.143 concerning migrations in abusive conditions and the promotion of equality of opportunity and treatment of migrant workers, art. 12 (c) and (g). 10 see convention no.97 concerning migration for employment, annex i recruitment, placing and conditions of labour of migrants for employment recruited otherwise than under government-sponsored arrangements for group transfer, art. 5 . 11 ibid., art.7. the new zealand’s recognised seasonal employer policy and the contractual rights of indonesian workers lukas banu and matthew gardiner 32 udayana journal of law and culture vol. 02 no.1, january 2018 33 is applicable to all components of the activities including preparation, departure, transit, the entire period of stay and remunerated activity in the receiving state (the state of employment), and the returning process to the state of origin.12 icmw recognizes some rights of migrant workers related to an employment contract, including the right of the workers to address claims against any violation of any terms of the contract of work to the competent authorities in the state of employment.13 in this convention it is also clearly stated that a contract cannot be used as a means to derogate any internationally recognized rights of the migrant workers14 and it also prohibits any imprisonment and any kind of sanctions that may potentially produce an impact to the working permit and residential status to be imposed on migrant workers or their family members for any allegation of the failure to fulfil an obligation that has arisen from the employment contract.15 as indonesia is the member state of the association of southeast asian nations (asean), it seems necessary to observe any legal obligation under the asean law which might prevail to indonesia. in fact, indonesia, the philippines, and vietnam have been grouped into the middle to low-income countries within asean community which category was made under the consideration of those countries receive skilled workers from outside of the region and are the major countries of origin of the migrant workers who leave their country and go abroad seeking jobs.16 asean17 is aimed at, among other things, facilitating movement of business persons, professionals, talent and labour.18 asean has created a human rights declaration that stipulates the rights of migrant workers as an inalienable, integral and indivisible part of human rights and fundamental freedoms.19 asean also adopted a specific declaration which requires the sending states to enhance measures related to the promotion and protection of the rights of the migrant workers and to set up policies and procedures for facilitating their recruitment.20 this declaration, with regard to the employment agreement, has also held asean countries to establish and promote legal practices to regulate recruitment of migrant workers and adopt 12 international convention on the protection of the rights of all migrant workers and members of their families, art. 1 (2). 13 ibid, art. 54 (2). see also the same beared by project-tied worker in article 61 (2). 14 ibid, art. 25 and 82. 15 ibid, art. 20. 16 sophie nonnenmacher, “free movement within the asean”, in migration, free movement and regional integration, ed. sonja nita, antoine pécoud, philippe de lombaerde, kate neyts and joshua gartland (paris: unesco – unu-cris, 2017), 349. 17 ibid, art. 1 (5). 18 asean human rights declaration, para 4. 19 international convention on the protection of the rights of all migrant workers and members of their families, art. 1 (2). 20 see asean declaration on the protection and promotion of the rights of migrant workers, para 11 and 13. 34 particular mechanisms for eliminating recruitment malpractices through legal and valid contracts.21 2.2. new zealand’s policy on recognised seasonal employer the rse scheme is a policy launched in april 2007,22 which enables the temporary entry of overseas workers for employment into new zealand’s horticulture and viticulture industries. it was formulated for responding to the high demands of seasonal workers of new zealand’s companies focused their business on the farming and horticultural industry. the idea was developed from the apple production practices around hasting in the eastern region of the north island. later, the kiwi fruit industry adopted such scheme to address its labour shortage in the seasonal production period. the scheme is designed to address the domestic new zealand concern of labour market shortages and, at the same time, to give an opportunity to foreign countries to take opportunity form the country’s economic development. rse is expected to overcome the lack of labour in new zealand, as well as assist south pacific countries to alleviate poverty in their home state.23 the new zealand government has used the rse scheme to address labour market shortfalls and deliver aid to the communities in the pacific islands such as fiji, vanuatu, tonga and samoa. the new zealand government expected that under the program, the citizens of the said countries may indirectly earning benefit from the program, their standards of living might quickly be improved, as they are relatively close geographically to new zealand. it has been proven by some countries, that the program has very much supported their social progress. they are the beneficiaries of this policy to develop social standards of living. tuvalu, for example, has been facilitated by new zealand’s department of labour to take advantage from the seasonal employment opportunities in the horticulture and viticulture industries.24 for vanuatu, rse is a valuable sector of trade in services in the sense that the scheme has provided an opportunity to the low-skilled workers to get a job in a formal paid employment in new zealand.25 the scheme of rse has subsequently expanded by including other countries, such as indonesia. the recruitment of indonesian workers under this scheme was 21 ibid, para 14. 22 ema hao’uli, “triple wins or trojan horse? examining the recognised seasonal employer scheme under a twail lens”, new zealand yearbook of international law 11 (2013): 187. 23 department of labour of new zealand “final evaluation report of the recognised seasonal employer policies (2007 – 2009)”, new zealand, 2010: 5. 24 charlotte bedford, richard bedford, elsie ho, “engaging with new zealand’s recognized seasonal employer work policy: the case of tuvalu”asian and pacific migration journal 19, no.3, (2010); 423. 25 ronald ravinesh kumar, 2012, “migration and development: the development impacts of short-term labour migration of ni-vanuatu workers to new zealand”, thesis, masters of arts in development studies, school of government, development and international affairs faculty of business & economics laucala campus the university of the south pacific: 108. the new zealand’s recognised seasonal employer policy and the contractual rights of indonesian workers lukas banu and matthew gardiner udayana journal of law and culture vol. 02 no.1, january 2018 35 based largely on the prior connections of some employers.26 technically, employers in the said industries may apply for rse status to supplement their labour supply with migrant workers.27 an agreement to recruit (atr) is required before making a job offer to overseas workers. the atr can only be approved by the government when the rse status, inter alia, meets the condition for prohibiting the services of a contractor who does not meet the statutory obligations with regard to employment, health and safety and tax laws, or who uses illegal labour in fulfilling their need for workers.28 2.3. the legality of the rse’s employment contract under indonesian and new zealand laws 2.3.1. general principles of employment contract despite the existence of public laws and international arrangements that govern labour migration, many legal relations between migrant workers, recruitment agencies, employers, and insurers are also regulated by private contract.29 as with other international contracts, where one of the parties is a company subject to the laws of its home country, the rules in the contract shall fully comply the country’s laws and regulations. under indonesian law, there are four requirements for the validity of agreements as stipulated in article 1320 of the indonesian civil code:30 1. there must be consent of the individuals who are bound thereby; 2. there must be capacity to conclude an agreement; 3. there must be a specific subject; and 4. there must be an admissible cause. the rules of contracts are stipulated in the indonesian civil code,31 which becomes the basis of the principle of freedom of contract. wicaksono discusses the scope of the principle of freedom of contract to include:32 26 john gibson and david mckenzie, “development through seasonal worker programs: the case of new zealand’s rse program”, policy research working paper 6762, the world bank development research group finance and private sector development team, january 2014:11. 27 ema hao’uli, op.cit, 184. 28 l.a winters, “new zealand’s recognised seasonal employer scheme: an object lesson in policy making – but for whom?” (toronto, geneva and brighton: ileap, cuts international geneva and caris 2016), 10. 29 bassina farbenblum “governance of migrant worker recruitment: a rights-based framework for countries of origin”, asian journal of international law 7, no.1 (2017): 165, https://doi.org/10.1017/ s2044251316000011 30 indonesian civil code, english translation, https://www.tribunais.tl/files/codigo_civil_indonesio_(ingles).pdf 31 ibid, art.1338 (1). 32 frans satriyo wicaksono,panduan lengkap membuat surat-surat kontrak, (jakarta: visi media, 2008), 3. 36 a. the freedom to make or not to make an agreement; b. the freedom to choose with whom an agreement will be drawn up; c. the freedom to determine the content of the agreement; d. the freedom to determine the object of the agreement; e. the freedom to determine the form of the agreement; and f. the freedom to accept or deviate from provisions of the legislation which is optional. meanwhile, the development process of contract law in indonesia shall at least be performed in three steps, they are offer and acceptance, confirmation with the will, and the contract implementation.33 ideally, a contract shall be formulated and drafted under involvement of both parties so their expectations could be firmly covered in the contract. the involvement of the parties shall cause in a consequence either the workers will sign the agreement or not. indonesian workers are presumed have no opportunity to accommodate their interests and to decide whether they shall sign or shall not sign the agreement and shall take or shall not take the opportunity for working in new zealand in the shake of their personal economic needs. the workers are presumed would still expect an opportunity to put forward their considerations in the contract. in new zealand, the principles of the employment contract are provided in employment relations act no. 24 (2000).34 the commision of law of new zealand outlines the basic principles that make the contract binding under the new zealand law, in which the parties to the contract shall establish the following elements: 35 1. both parties intend to establish a legal relation when they enter into a contract; 2. one of the parties deliver an offer; 3. the other party accept the offer; 4. each promise contained in the agreement is made under a valuable consideration; and 5. all terms of the agreement must be clear and certain. the contract shall contain the rights and obligations of parties and the consequences if one of the parties does not perform as agreed under the contract. 33 i ketut artadi and i dewa nyoman, rai asmara putra, implementasi ketentuan-ketentuan hukum perjanjian ke dalam perancangan kontrak, (denpasar: udayana university press, 2010),77. 34 new zealand, employment relations act no. 24 (2000), part 6, section 65. 35 those elements are pharaphrased by authors. see, commision of law of new zealand, “electronic commerce part one: a guide for the legal and business community”, report no. 50, wellington, october 1998, para 50. http://www.lawcom.govt.nz/sites/default/files/projectavailableformats/nzlc%20r50_0.pdf the new zealand’s recognised seasonal employer policy and the contractual rights of indonesian workers lukas banu and matthew gardiner udayana journal of law and culture vol. 02 no.1, january 2018 37 2.3.2. public laws of indonesia and new zealand the indonesian constitution guarantees that every citizen of the republic of indonesia shall have rights to work and to earn a human livelihood.36 under such human rights framework, the constitution also recognizes that every person shall have rights to work and receive a fair and proper remuneration and employment treatment37 and shall also be free to choose job or jobs.38 in fact, there are no particular indonesian legal frameworks or regulations that specifically and explicitly cover the issues of rse. some of them may be interpreted as providing a legal basis for the conclusion of rse employment contract between an indonesian migrant worker and the new zealand’s company, but it was not in an explicit formulation. hence, it has produced a question on the legal certainty of the guarantee provided by the constitution. the indonesian act no. 39 of 2004 concerning the placement and protection of indonesian overseas workers has covered the issue of the employment contract. the act defines the contract as a written agreement between indonesian migrant workers and a (foreign) employer that shall contain the terms of employment, rights and obligations of each party.39 this law determines the right of indonesian migrant workers to get the original version of the employment agreement where they are one of the parties of the agreement40 and also obliges them to obey and performs jobs in conformity with the agreement.41 it also stipulates a general protection clause that recognizes the rights of indonesian migrant worker candidates to be protected in accordance with indonesian law in pre-placement, during the placement period, and after placement.42 regarding the issue of the employment contract, this act determines that the working relationship between employer and indonesian migrant worker as an employee takes place after the employment agreement has agreed upon and signed by the parties. the act also requires the presence of officials of the responsible government agency before the workers leaving his/her own country to the country destination. this employment contract shall be prepared by private indonesian employment placement company (perusahaan pengerah tenaga kerja indonesia swasta, hereinafter, pptkis)43 and shall at least included:44 36 the 1945 constitution of the republic of indonesia, art. 27 (2). 37 ibid, art.28d (2). 38 ibid, art.28e (1). 39 indonesia act no. 39 year 2004 concerning the placement and protection of overseas indonesian workers, art. 1 (10). 40 ibid, art. 8 (i). 41 ibid, art. 9 (b). 42 ibid, art. 55 (1), (2), and (3). 43 ibid, art. 55 (4). 44 ibid, art. 55 (5). 38 a. name and address of the employer; b. name and address of indonesian migrant workers; c. the position and type of work of indonesian migrant workers; d. rights and obligations of the parties; e. conditions and terms of employment covering wages and wages work; f. payments, both leave and rest periods, facilities and social security; and g. extension period of work. the act does not mention the way the assistance of the governmental agency shall be provided and what are the benefits of their presence, for visiting or providing certain functions for the worker and for ascertaining the fulfilment of requirements determined by the act. the indonesian government has issued an implementing regulation for administering the performance of the rules under the act that is regulation of the indonesian minister of manpower and transmigration no. per.19/men/v/2006 concerning the implementation of placement and protection indonesian overseas worker which determines that the pptkis is under obligation to ensure that the candidate of the indonesian migrant workers shall participate in a final briefing before departure which is organized by the indonesian national agency for the placement and protection of migrant workers (badan nasional penempatan dan perlindungan tenaga kerja indonesia, hereinafter, bnp2tki).45 the briefing will introduce the existing public laws in the receiving countries such as the relevant law of immigration, employment, criminal provisions, employment contract, and some additional general knowledge.46 regarding employment contract, the prospective migrant workers will get a briefing on the following issues: a. the rights and obligations of both indonesian migrant workers and their employers; b. wages, working time, rest/leave, insurance; c. type of work; d. the term of the employment agreement and procedure extension of employment agreement; and e. means of problem-solving or dispute settlement. in addition, this briefing will also tell them to understand the customs and culture, the dangers of narcotics and hiv/aids, possible job risks in the placement 45 regulation of the indonesian minister of manpower and transmigration no: per.19 / men / v / 2006 concerning implementation of placement and protection of indonesian overseas worker, art.19 and 20 (1). 46 ibid, art. 23 (1) (a) (1). the new zealand’s recognised seasonal employer policy and the contractual rights of indonesian workers lukas banu and matthew gardiner udayana journal of law and culture vol. 02 no.1, january 2018 39 country, remittance procedures, spiritual mental coaching, and travel documents and implementation of the trip. a legal issue can be found in a requirement of a certificate of competence and educational background of the employer. on one hand, indonesian law explicitly requires indonesian migrant workers to hold a certificate of competence47 and minimum educational background (junior high school),48 but on the other hand, rse program does not require such certificate and educational background. as previously explained, rse scheme has been developed for helping the alleviation of poverty in the origin country and to give benefits to workers, in which many of the indonesian peoples expecting that the government will have such particular concerns on the issues. at the lower level, the provincial policy in the province of bali conforming the central government regulation has published a circular of the governor of bali no. 562/4729/iii.2/disnaker, dated 25th july of 2005, on the placement of indonesian workers abroad, but limited to a position for providing a recommendation for filling a job vacancy with a letter of formal intermediate skills. it has been outlined as a requirement in the mou signed by the agents, foundations and pptkis in order to get approval from the government.49 for some extents, such provincial policy has not fulfilled the aims of rse scheme utilised by dms and the agency in new zealand, as the rse much more focused on the empowerment of the socio-economically challenged for those who do not have education and skills. the law and regulations drawn up above have not been able to fully anticipate or resolve the problems faced by the indonesian workers in the rse program. it has caused further problems with the position of the workers. there are many different parties involved in the process of the placement of the workers during the recruitment process, the placement and supervision or monitoring over the workers. so, there is an unclear understanding of the roles and responsibilities of each party, including the workers themselves. as a practical breakthrough, mou is an effective instrument to support the rse practice. for example, a mou is adopted among pptkis, the agent in new zealand, and the indonesian foundation that explains the role of each party. pptkis, for example, has a legal standing to send the workers abroad, arranging any legal document that is required for sending indonesian workers from bali to new zealand. next, the agent in new zealand provides the job opportunity in new zealand and ensures the standard of remuneration. the indonesia foundation in bali is authorized to recruit a candidate of workers who will work in new zealand. 47 ibid, art. 51 (d). 48 indonesia act no. 39 year 2004 concerning the placement and protection of indonesian overseas workers, art. 35. 49 memorandum of understanding between lubeck management group, auckland, new zealand, yayasan tangan pertolongan bali, bali, indonesia and pt. bali duta mandiri, bali, indonesia signed december 2015. 40 in general, new zealand recognizes a human rights approach to be applied in employment matters.50 a fixed-term employment contract is generally used and favourably offered by new zealand companies in creating a legal obligation of a foreigner who applied for working under the rse scheme. this kind of fixed-term employment contract has a legal basis under the new zealand law. according to employment relations act, a company and workers might agree with the term that the employment engagement will end at the close of a specified date or period; or in the occurrence of a specified event; or at the conclusion of a specified project.51 the law further regulates that both parties shall agree prior to the employment of the worker that it will end in such way, the company must have genuine reasons based on a reasonable grounds for specifying that the employment of the worker is to be terminated and give suggestion the worker of when or how his or her employment will end and the reasons for his or her termination.52 this act also clearly state that a company cannot use three reasons as ‘genuine reasons’ to end up the employment, are: to exclude or limit the rights of the employee under this act; to establish the suitability of the employee for permanent employment; or to exclude or limit the rights of an employee under the new zealand holidays act no. 129 (2003). 2.4. lesson learned from a new zealand company that recruits indonesian workers under the rse scheme 2.4.1. direct management services pro growers direct management services (dms) pro growers is a company that has taken up the opportunity to implement rse scheme.53 it is a company jointly established in 1989 by craig greenless and paul jones and centred its administration in tauranga city, new zealand. it performs its business in more than 100 orchards which operated by 70 full-time staff. during the annual harvest period of kiwifruit at packhouses in te puna and te puke, dms employs more than 500 seasonal workers.54 along with dms motto ‘increasing grower profit’, its post-harvest company-dms pro growers-share equally the ownership with growers and founding partners.55 dms has started recruiting indonesian workers in 2007. the first time dms recruited 12 indonesian workers under the facilitation of lubeck management group, a management group which that was not exclusively working for dms but also provided a network to other new zealand companies that have business in the 50 new zealand, human rights act no.82 (1993), art. 22. 51 new zealand, employment relations act no. 24 (2000), part 6, section 66 (1). 52 ibid, section 66 (2). 53 employment agreement (fixed term), contract between dms progrowers ltd and employee, op.cit. 54 http://www.dms4kiwi.co.nz/who-we-are/history/ 55 ibid. the new zealand’s recognised seasonal employer policy and the contractual rights of indonesian workers lukas banu and matthew gardiner udayana journal of law and culture vol. 02 no.1, january 2018 41 kiwi fruit industry such as eastpack, satara, and seeka. this management group has now been formalised by the new zealand government to carry out official services for rse program.56 2.4.2. employment contract between indonesian workers and dms-pro growers the employment agreement between dms and its indonesian workers is drafted in the english. a good faith principle is implied as this contract also translated into bahasa (indonesian language). as explained by a dms worker recruitment agent, this translation was made to enable indonesia workers to have a clear understanding with regard to the content of the contract as well as to ensure that they could realize their rights and obligations stipulated in the contract. this way of drafting contract is an important aspect of the contract legal basis as the contract contains many technical legal terms comply with the new zealand’s employment relations act 2000. one of issue arisen in relation to the legal protection for indonesian workers who work in dms is the process of negotiation and implementation of the contract. normally, all parties should be involved during the process of negotiation of the employment contract. instead of a negotiating-model contract, dms provides a fixed contract for efficiency reason. provisions contained in this model of the contract have been predetermined and approved by both the indonesian and new zealand authorities. such fixed-term contracts give only two options to the indonesian workers: to agree and sign the contract or disagree and refuse the contract.57 in this situation, workers almost have no opportunity to include their individual interests and consideration into the contract. this practice is not in line with the posner’s bargaining theory that conceives consideration as a requirement of the validity of the contract.58 he also discusses the basic concepts of economic analysis of law,59 which puts forward the concepts of rational choice, value, efficiency, and utility.60 the concept inspires people to find the happiness and increases the wealth. in connection with rse, people are choosing to come to new zealand for jobs because there is a scarcity of opportunity in their home countries. referring to the theory, the employment contract between indonesian workers and dms implies a problem that needs to be resolved in a fair and equitable way in respect with both parties’ rights and obligations under their respective laws. it can be assessed that the contract provided by the dms for the potential 56 information obtained by first author. 57 employment agreement (fixed term), contract between dms progrowers ltd and employee, op.cit. 58 fajar sugianto, economic approach to law (jakarta: kencana prenada media group, 2013), 30-31. 59 tomasz famulski, “economic efficiency in economic analysis of law”, journal of finance and financial law 3, no.15 (2017): 29-30. http://dx.doi.org/10.18778/2391-6478.3.15.03 60 fajar sugianto, op.cit, 33-40. 42 indonesian workers has met some aspects of the principle of freedom of contract as has been discussed in section 2.3, but clearly, it has not comprehended all of its aspects. in their participation in the rse program, dms uses generic employment contracts. these contracts have been duplicated and used extensively with all workers who participate in the rse program, including those who are from the south pacific region. although it is generic in nature, the rse contract model remains binding on behalf of the company’s expectation and it has not covered the expectation of the indonesia workers. then, under the civil law principle of pacta sunt servanda it shall be legally valid and binding upon the indonesian workers. so, technical contract assessment is firmly needed in order to determine the equal respect to each expectation of the parties. the dms employment contract has covered similar content to the content that has been discussed under section 2.3, which are: 1. rights and obligations of indonesian workers and dms; 2. wages (in accordance with new zealand’s rse policy and wages protection act of 1983), working hours (average 30 hours per week), day off and insurance; 3. type and location of working place, namely dms pukepack in te puke and dms te puna in te puna; 4. period of work contract, 6 months and 1 day; and 5. problem-solving regarding employment relationship problems and terms about the choice of law, new zealand’s law. the content of the contract has relatively satisfied the expectation of the parties. it has been expressed in the interview results of the different parties, which a particular note with the individual problems of the workers, homesickness, especially for those who are for the first time away from their family. 2.5. documentation process there is a need for investigating the issue of documents to indonesian foreign workers.61 indonesian law requires prospective indonesian migrant worker to have some particular documents, including an employment agreement and an employment placement agreement62 these have not been resolved under the dms legal framework scheme. 61 adharinalti, “perlindungan terhadap tenaga kerja indonesia irregular di luar negeri (protection of irregular indonesian workers in overseas)”, jurnal rechtsvinding: media pembinaan hukum nasional 1, no.1 (2012): 171. 62 act no. 39 year 2004 concerning the placement and protection of indonesian overseas workers, art. 51 (h) and (i). the new zealand’s recognised seasonal employer policy and the contractual rights of indonesian workers lukas banu and matthew gardiner udayana journal of law and culture vol. 02 no.1, january 2018 43 indonesian law requires pptkis to have a licence of deployment issued by indonesian minister of manpower63 and a letter of recruitment issued by bp3tki.64 the law also requires endorsement by authorized officials at the indonesian embassy in wellington, new zealand for some of the documents including the copy of placement cooperation agreement between pptkis and its partner, job order/employment order/demand letter, and draft of the employment contract.65 the following explains the documentation process of the dms recruitment for the indonesian workers from the province of bali, in which most of the information is obtained from documents, observation on the practice and interviews. the document processes required under the rse program begins from the application to recruit the workers to be submitted by the dms to department of immigration of new zealand, the application contains the reason for recruitment and also the number of workers that are expected by the company and the duration of employment. the new zealand government then releases the agreement for recruitment (atr) according to the application and evaluation. the dms continues the process by establishing a network with an agency in new zealand that has an access to the indonesian workers and provides the work agreement between dms and the workers. the agency subsequently establishes a mou to enable itself to perform its function as a representative agency, located in bali. the agency then releases a letter of offer to the pptkis which outlines the number of workers needed and also the criteria of how they will be employed. pptkis continues this application by requesting an approval from indonesian ministry of manpower. once pptkis has received the approval, it will send the document to the agency in new zealand for a ratification. ideally, the recruitment should only be started after pptkis receive a license of deployment. unfortunately, this is not feasible due to the tight timeframes required by dms to fulfil their requirements. in practice, the recruitment by pptkis has already been started before they hold the licence of deployment. this is to enable the potential workers to be available when the approval is received. therefore, the requirements for documents, medical check-ups,66 and some other arrangements have been performed in advance, prior to the holding of license for deployment. there are numerous forms of documents required for the prospective indonesian workers. the first and perhaps the most important document is an ordinary 63 ibid, art. 32 (1). 64 regulation of the indonesian minister of manpower and transmigration no: per.19 / men / v / 2006 concerning implementation of placement and protection of indonesian overseas worker, art. 6 (1). 65 act no. 39 year 2004 concerning the placement and protection of indonesian overseas workers, article 32 (3) and regulation of the indonesian minister of manpower and transmigration no: per.19 / men / v / 2006 concerning implementation of placement and protection of indonesian overseas worker, art. 3. 66 regulation of the indonesian minister of manpower and transmigration no: per.19 / men / v / 2006 concerning implementation of placement and protection of indonesian overseas worker, art.18. 44 passport.67 it is a document issued by the government of the republic of indonesia to its citizens that enable them to perform interstate travels.68 the creation of new passport contains some particular issues. most workers who apply for a visa for working overseas have never travelled overseas. an officer in the immigration office in denpasar-bali, an office operated under the ministry of law and human rights authorized for issuing passports,69 explained that the office has actually supported and facilitated the candidates who apply for passport under the framework of rse program,70 but it takes time as they have to ensure all precautions have been fulfilled by checking the correct submitted documents and information in conformity with the law and regulations. 2.6. oversight mechanism and cooperation with agents the recruitment of indonesian workers under private to private engagement is continuously plagued with problems.71 there may be more problems that have not been discovered which potentially undermine the values of the program. for such reasons, the indonesian government has actively been involved in the process of placement and protection of the indonesian workers in order to increase the benefits of the program either for the workers, the private sectors, and the governments of both the origin and the host country. the aim of this involvement is to control or even to eliminate the source of these problems. in 2004, the indonesian government, in supporting such an effort, published an act no. 39 year 2004 concerning the placement and protection for indonesian overseas workers. pptkis has been criticized for violations with regards to the implementation of the employment contracts of the indonesian workers. hence, they were forced to resolve the breach and enter a strong commitment to prevent such kind of breach reoccurring.72 in terms of procedural violations, some pptkis’ have performed services with no operational license, some companies placed migrant workers who were not supported with job orders and distributed to the type of work which did not comply with the original signed contract.73 these are substantive issues related to the misbehaviour of the entity. the pptkis often charges a fee for placement above 67 this ordinary passport is used to make clear some other type of pasports e.g. diplomatic passport and official passport. 68 indonesian act no. 6 year 2011 concerning immigration, art. 1(16). 69 ibid, art.26 (2). 70 interview with setyo budiwardoyo, head section of information and immigration communication means, in denpasar on 1st december 2015. 71 sawitri yuli hartati, “peranan perusahaan penempatan tenaga kerja indonesia swasta (pptkis) dalam perekrutan calon tki ke luar negeri melalui skema p to p”, social justicia 1, no. 4(2017): 143. 72 meita djohan oelangan, “implementasi perjanjian kerja dalam penempatan tenaga kerja indonesia ke luar negeri,” pranata hukum 9, no. 1 (2014): 56. 73 ibid. the new zealand’s recognised seasonal employer policy and the contractual rights of indonesian workers lukas banu and matthew gardiner udayana journal of law and culture vol. 02 no.1, january 2018 45 the official amount determined by the law, recruited underage workers (children), and supplied a poor quality of information to the prospective migrant workers.74 undoubtedly, the indonesian government has the authority to manage the oversight mechanisms75 unfortunately, the enforcement does not prevail as the government is less powerful in controlling all aspects of the procedure. this includes the limited access to the company and the agents. in this situation, indonesian government should consider closer co-operation with the agents in new zealand to prevent any acts of exploitation against the indonesian workers. there are at least three reasons the cause the agents to play such a crucial role in providing legal protection for indonesian workers in new zealand, such as: a. the geographical position. the agent is located in new zealand and has a positional advantage which enables them to detect any problems faced by the indonesian migrant workers in new zealand. b. the intermediary position. the agent, in one hand, has a legal relationship with dms and on the other hand, it also has a mou with pptkis. this position leads to a situation in which agent has vested interests to get involved. c. the position by law. the agent is recognized as a legal entity in new zealand. hence, it has a legal basis or legal power to take a position as a formal and valid entity to carry out facilitation for supporting the negotiations between the indonesian workers and dms. they have a better understanding regarding the contractual aspects of new zealand’s companies, in which the indonesian workers may not fully comprehend. in a more practical way, the agent would bridge any barriers of language, cross-cultural understanding, and lack of legal knowledge of the indonesian workers. the public-private partnership and cooperation could be instigated as the proper solution for handling any legal issue with regards to placement of indonesian workers under the rse scheme. 3. conclusions and recommendations 3.1. conclusion the recognised seasonal employer (rse) can be viewed as a great policy scheme, with subsequent opportunity, for indonesian peoples to exercise their right to work and at the same time, to increase their standard of living by participating in the scheme. so far, there have been no factual violations against indonesian migrant workers’ rights under the rse scheme. however, there is also no reason for the government of indonesia to decrease its efforts to protect the indonesian 74 ibid. 75 act no. 39 year 2004 concerning the placement and protection of overseas indonesia workers, art. 77 (1) and (2). 46 migrant workers, as the facts show the low performance of some of the stakeholders, like private indonesian employment placement company (perusahaan pengerah tenaga kerja indonesia swasta/pptkis), remain an obstacle to become clean and trusted procedure. instead of the moral standards and political commitment, there is a commitment through various kinds of international legal instruments, conventions and declarations, which are then transformed into indonesian domestic law. the analysis of the aspects of public and private laws found that substance of the employment contract between indonesian workers and the new zealand company under the rse scheme have upheld general principles of employment contract and have fulfilled many of the requirements as stipulated in new zealand acts and to some extents, indonesian laws. this study found that on one hand, new zealand laws have already covered all aspects of workers and determined new zealand’s government obligation to oversee the employment agreements. on the other hand, indonesian law and regulations do not explicitly cover the issue of protection of the indonesian workers who work in new zealand under the rse scheme. in a more practical way, some breakthroughs were made to enable the placement of indonesian workers in new zealand and would certainly give the indonesian law and regulations flexibility in its interpretation. some commonly performed practices by state and non-state actors in response to the performance of the placement of migrant workers under the rse scheme may be adopted by the government of indonesia for satisfying the standard. hence, indonesia may able to place indonesian migrant workers under the rse scheme in a more efficient manner. all stakeholders, including the indonesian workers who work in companies in new zealand, the indonesian ministry of man power, national agency for the placement and protection of migrant workers (badan nasional penempatan dan perlindungan tenaga kerja indonesia/bnp2tki), the indonesian embassy in new zealand, pptkis, and the new zealand company (employer) may take their position in a more efficient manner and comply with the rules and guidelines provided by international and domestic legal instruments. 3.2. recommendations in reviewing the practice of placement of indonesian migrant workers under the rse scheme, it is highly recommended to: a. the indonesian government, in particular, the ministry of man power. from the utilitarian theoretical perspective, the law should be modified in order to increase the advantage and benefit to greater society, in this context, the indonesian migrant workers and the candidates who expect for better living standards in their lives. therefore, the government should implement a policy that can accommodate the interests of the indonesia migrant workers under the rse scheme to enhance the employment contract in accordance with the terms of the letter of offer and contract given by the company. this can be done the new zealand’s recognised seasonal employer policy and the contractual rights of indonesian workers lukas banu and matthew gardiner udayana journal of law and culture vol. 02 no.1, january 2018 47 by stipulating the minimum requirements in the initial approvement process and allowing for flexibility in negotiating other aspects with potential employees. b. both indonesia and new zealand governments, due to the complexity and tight timeframes of the recruitment process, firmly need to create a bilateral agreement to streamline the application processes and to make the application approval process quicker and more efficient. c. the indonesian government, through indonesian official representatives in new zealand, should play a more progressive role to visit, inspect, and if required, to enforce the conditions of contract on its own citizens whilst working in new zealand. this would not only allow the better understanding of the program for the indonesian government but would also serve to better protect the indonesian citizens and to prevent exploitation by any potentially unscrupulous employers. d. pptkis should establish a mechanism of legal protection for indonesian migrant workers and coordinate its monitoring activities under rse program. this includes recognition of the workers under the rse scheme who do not have a certificate of competence as formally required by indonesian law. e. an agent acting on behalf of the rse employee should be granted appropriate legal standing before both new zealand and indonesian law in order to enable them providing an advocacy role for workers. acknowledgement authors would like to acknowledge the role of made subha karma resen, lecturer at faculty of law udayana university who supervised authors during the research conducted in bali in 2015 and committees of the legal research collaboration that 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january 2018 51 circular of governor of bali province no. 562/4729 / iii.2 / disnaker dated july 25, 2005 on the placement of indonesian workers abroad national laws of new zealand wages protection act no. 143 (1983) human rights act no.82 (1993) employment relations act no. 24 (2000) holidays act no. 129 (2003) private agreements employment agreement (fixed term), contract between dms progrowers ltd and employee, commencement date 26 march 2017, expiry date 1 oktober 2017. memorandum of understanding between lubeck management group, auckland, new zealand, yayasan tangan pertolongan bali, bali, indonesia and pt. bali duta mandiri, bali, indonesia signed december 2015. website content arbi sumandoyo, berharap jadi tki di new zealand, aryanto tertipu rp 20 juta, merdeka.com, september 18, 2012 https://www.merdeka.com/jakarta/berharap-jadi-tki-di-new-zeland-aryanto-ketipu-rp-20-juta.html; detik news, wni diimbau waspadai penipuan tawaran kerja di selandia baru, january 27, 2010, https://news.detik.com/berita/1287486/wni-diimbauwaspadai-penipuan-tawaran-kerja-di-selandia-baru direct management services. history. http://www.dms4kiwi.co.nz/who-we-are/ history/ kementerian luar negeri indonesia. selandia baru sambut baik 115 tenaga kerja indonesia. https://www.kemlu.go.id/id/berita/siaran-pers/pages/selandiabaru-sambut-baik-115-tenaga-kerja-indonesia.aspx interview interview with setyo budiwardoyo, head section of information and immigration communication means, interview by authors, denpasar, december 1, 2015. vol. 03, no. 1, january 2019, pp. 78-94 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3028 e-issn 2549-0680 78 a critical analysis of collaborative law as a dispute settlement mechanism ni wayan desi aryanti* university college london, england-the united kingdom article received: 28th november 2018; accepted: 29th january 2019; published: 31st january 2019 abstract the increasing number of practitioners who employ collaborative law as an alternative dispute resolution method indicates its relevance in resolving legal cases, especially in the field of family law. following its incorporation into legislation in some states in the united states of america, the current practice of collaborative law seems to run further than what was developed in 1990 by a family lawyer, stuart webb in minneapolis. this article attempts to expose that while collaborative law is beneficial in resolving family disputes, its distinct feature-disqualification provision poses some drawbacks to disputants. besides, it assesses how clients screening and combining collaborative law with mediation can minimize disqualification provision’s disadvantages. lastly, this article examines why collaborative law’s application in non-family disputes is limited. keywords: collaborative law; family law; alternative dispute resolution how to cite (chicago-16th): aryanti, ni wayan desi. "a critical analysis of collaborative law as a dispute settlement mechanism." udayana journal of law and culture 3, no. 1, 77-94. https://doi.org/10.24843/ujlc.2019.v03.i01.p04 doi: https://doi.org/10.24843/ujlc.2019.v03.i01.p04 * email/corresponding author: niwayandesi@gmail.com and ni.aryanti.17@ucl.ac.uk https://ojs.unud.ac.id/index.php/ujlc/issue/view/3028 https://doi.org/10.24843/ujlc.2019.v03.i01.p04 mailto:niwayandesi@gmail.com mailto:ni.aryanti.17@ucl.ac.uk a critical analysis of collaborative law as a dispute settlement mechanism ni wayan desi aryanti 79 1. introduction collaborative law is an alternative dispute resolution method which was developed in 1990 by a family lawyer, stuart webb in minneapolis.1 its most distinctive feature is the disqualification provision which prohibits parties’ lawyers from representing their clients any further if the dispute goes into court.2 since its establishment, it has been well received in family disputes. texas in 2001 became the first state in the united states of america which enforced collaborative law through its legislation; followed by north carolina in 2003. 3 in 2011, the international academy of collaborative professionals (iacp) had 4,200 practitioners, and 300 practice groups registered members.4 collaborative law is said to be highly effective in resolving family disputes. the iacp’s research in 2009-2010 showed that it solved 90% of family law cases. 5 however, there are critics of collaborative law. lande said that it may inappropriately force parties to settle and therefore raises ethical concern.6 rack jr. argued that it may not be applicable in resolving all types of family disputes. 7 moreover, despite the impressive use of collaborative law in resolving family disputes, its application in non-family disputes is limited.8 it can be acknowledged that john lande is one of the scholars who has written about collaborative law in the last two decades. in 2003 he published an article ‘possibilities for collaborative law: ethics and practice of lawyer disqualification and process control in a new model of lawyering’ and in 2011 introduced 'an empirical analysis of collaborative practice' in the context of collaborative family law, we may cite a work by pauline h. tesler9 and another work by elena b. langan, especially on the 1 john lande, "an empirical analysis of collaborative practice," family court review 49, no. 2 (2011): 257-281. 2"uniform collaborative law rules and uniform collaborative law act (last revised or amended in 2010)," family law quarterly 48, no. 1 (2014): 55-177. 3 larry r. spain, "collaborative law: a critical reflection on whether a collaborative orientation can be ethically incorporated into the practice of law," baylor l. rev. 56 (2004): 141-172. 4 john lande (2011), op.cit., 1. 5 unpublished description of iacp research, information sheet, faq based on cases reported to the international academy of collaborative professionals research project (oct. 25, 2009), ibid, 16. 6 john lande, "possibilities for collaborative law: ethics and practice of lawyer disqualification and process control in a new model of lawyering," ohio st. lj 64 (2003): 1315-1379. 7 robert w rack jr, "settle or withdraw: collaborative lawyering provides incentive to avoid costly litigation," disp. resol. mag (1998): 8-9. 8 david a. hoffman, "collaborative law in the world of business," the collaborative law review 6 (2003): 1. 9 pauline h. tesler, "collaborative family law," pepp. disp. resol. lj 4 (2003): 317-336. udayana journal of law and culture vol. 3 no. 1, january 2019 80 issue of divorce disputes’.10 some papers also highlight the ethical issue with regards to collaborative law, among others, writing by larry r. spain11and bobette wolski.12 this article argues that while collaborative law’s approach is beneficial in resolving family disputes, its distinct feature-disqualification provision poses some drawbacks to disputants. furthermore, it assesses how clients screening and combining collaborative law with mediation can minimise disqualification provision’s disadvantages. finally, it examines why collaborative law’s application in non-family disputes is limited. this article reflects legal research in the field of alternative dispute resolution. the discussion very much relies on legal scholars’ concepts and theories on the issues discussed. it also relies on some relevant sources e.g family law council’s report to the attorney-general and the views of the ethics committee in colorado. 2. result and discussion 2.1. collaborative law’s approaches to resolving disputes collaborative law starts with collaborative lawyers assisting clients to find their interest and educate them to manage conflict and emotion which enable them to participate directly in good faith negotiations. 13 parties then sign a participation agreement to demonstrate their commitment to good faith negotiation and voluntary disclosure of information aiming to preserve long-term relationships among them. 14 collaborative law requires the involvement of parties and their lawyers throughout the negotiation process. its characteristics resemble fisher and ury principled negotiation, which suggests that people should negotiate based on merits, invent as many options as possible for mutual gains and when their interests are conflicted they should apply a standard which is independent of the will of the parties.15principled negotiation, which focuses on parties’ interests, will typically result in an agreement which fairly satisfies parties’ interests, is durable, and is more likely to be complied with by the parties. 16 family disputes are concerned about long-term relationships, and usually involves 10 elena b. langan, "we can work it out: using cooperative mediation-a blend of collaborative law and traditional mediation-to resolve divorce disputes," rev. litig. 30 (2010): 245-316. 11 larry r. spain, loc.cit. 12 bobette wolski, "collaborative law: an (un) ethical process for lawyers?," legal ethics 20, no. 2 (2017): 224-241. https://doi.org/10.1080/1460728x.2017.1397401 13 pauline h. tesler, op.cit., 328. 14 ibid. 15 roger fisher, william l. ury, and bruce patton. getting to yes: negotiating agreement without giving in (penguin, 2011), 11-12. 16 ibid, 7, 12. https://doi.org/10.1080/1460728x.2017.1397401 a critical analysis of collaborative law as a dispute settlement mechanism ni wayan desi aryanti 81 children who become the parties’ common interest; hence, the above result is generally sought by parties in family dispute. principled negotiation, however, requires trust and good faith, which in some negotiations are absent.17the absence of trust and good faith will induce parties to carry out position negotiation as they will conceal facts, expectations and underlying interest out of fear that the other party will employ it for their own benefit. hence, while it looks ideal at the outset, its implementation is quite challenging. collaborative law is different from mediation, which involves two parties and one neutral mediator with minimum involvement of lawyers in family law dispute.18 lawyers’ limited participation in mediation exacerbates power imbalance between the parties.19 thus, it adversely affects the weaker party. collaborative law, on the other hand, resolves family disputes effectively by overcoming challenges in the implementation of principled negotiation and mediation through the ways noted below. 2.1.1. participation agreement karen walch 20 years of study among her global students found that 40% of people think that they are cooperative and trusting. 20 however, they believe that their counterpart is not cooperative and will only try to win the negotiation. 21 this study demonstrates that there is a trust issue in negotiation among the parties, in which they believe that their counterpart only wants to benefit from them and does not want to cooperate to reach an amicable settlement. such a situation will prevent parties from engaging in principled negotiation and instead resort to positional negotiation. positional negotiation is detrimental to parties as it is inherently adversarial and focuses on positions which can result in negotiations becoming no more than a zero-sum game. collaborative law addresses this issue through the participation agreement. a participation agreement is an agreement signed by the parties in which they commit to good faith negotiation, the exchange of accurate and honest information and undertake not to resort to litigation. 22 the parties’ commitment to not take the matter into court is reflected through disqualification provision. it prevents each parties’ lawyer from representing 17 jacqueline nolan-haley. alternative dispute resolution in a nutshell, 4th (west academic, 2013), 27 18 pauline h. tesler, op.cit., 328. 19 john lande (2003), op.cit., 1324. 20 keld jensen, why negotiators still aren't 'getting to yes'. forbes, january 11, 2018, https://www.forbes.com/sites/keldjensen/2013/02/05/why-negotiators-still-arentgetting-to-yes/#24009b7a2640 21 ibid. 22 donald a., glenn, thomas f. burrage, donald degrazia, and william stewart. family law services handbook: the role of the financial expert. (john wiley and sons, 2010), 288. https://www.forbes.com/sites/keldjensen/2013/02/05/why-negotiators-still-arent-getting-to-yes/#24009b7a2640 https://www.forbes.com/sites/keldjensen/2013/02/05/why-negotiators-still-arent-getting-to-yes/#24009b7a2640 udayana journal of law and culture vol. 3 no. 1, january 2019 82 them once the case goes to court.23 the parties would only be able to resort the matter to court if the collaborative law process is determined as failed and disqualification provision entered into force. a written agreement which expresses their commitment and the risk of losing their lawyers should a settlement not be reached, provide more incentives for parties to engage in good faith discussion. this eliminates, or at least minimises, trust issues between them. 2.1.2. disqualification provision the main feature of collaborative law is the disqualification provision which distinguishes it from other alternative dispute resolution methods such as negotiation and mediation. the disqualification provision is a provision in the participation agreement which requires a parties’ lawyer and experts who are appointed in the process to withdraw from their representation if the negotiation fails and the case proceeds to court. 24 negotiation and mediation do not have such a provision; and parties are allowed to proceed the matter to court with their existing lawyers. such a provision is critical to screening disputants who are serious about resolving their dispute. it enables the parties to focus on good faith resolution and creates a forum which allows them to disclose true and honest information.25 if parties are not committed to settling the dispute through good faith negotiation they will not have entered into this process. the disqualification provision will make them lose their lawyers when negotiation fails, hence there is more risk for them if the negotiation is unsuccessful. a disqualification provision is claimed to incentivise disputants to reach an early settlement, because in the event they proceed to litigation, they have to incur a duplicative cost to educate new lawyers about the dispute. this will increase litigation cost.26 furthermore, as the participation agreement also requires all professionals involved in the collaborative process to withdraw if the matter goes into court,27 parties will incur further costs for experts as they cannot make use of such experts’ advice at trial. reasonable disputants will consider the amount of time and money which they have already spent during the collaborative process. such extra cost and physiological cost of reliving unpleasant experiences all over again 23ibid. 24 uniform collaborative law rules and uniform collaborative law act (last revised or amended in 2010), op.cit., 3. 25 sherrie r. abney, why would anyone use civil collaborative law? american bar association, march 31, 2018, https://www.americanbar.org/content/dam/aba/publications/dispute_resolution_magazin e/abney_why_use_gvb_edit.authcheckdam.pdf 26 john lande (2013), op.cit., 1353. 27 international academy of collaborative professionals, ‘standards and ethics’ (2017), 4. https://www.americanbar.org/content/dam/aba/publications/dispute_resolution_magazine/abney_why_use_gvb_edit.authcheckdam.pdf https://www.americanbar.org/content/dam/aba/publications/dispute_resolution_magazine/abney_why_use_gvb_edit.authcheckdam.pdf a critical analysis of collaborative law as a dispute settlement mechanism ni wayan desi aryanti 83 to new lawyers and experts 28 will reduce litigation’s attractiveness to disputants and therefore will provide them with incentives to settle the dispute during the collaborative process. as for lawyers, the disqualification agreement will prevent them from quickly deciding that the case should be referred to litigation in the case of an apparent impasse 29 because their representation will be terminated once the case goes to court. furthermore, it provides professional’s achievement as they can prevent the adversity of failure. 30 thus, there are no incentives for lawyers to proceed with the matter to litigation. lande’s research further demonstrated that 80% of collaborative lawyers believe that the disqualification provision helps parties to signal that they aim to make a good faith settlement, while 90% believed that it motivates parties to take additional efforts to reach a settlement in order to avoid litigation 31 sefton’s research also supports the above statement. 32 although lawyers reported that it raised clients’ concerns of losing their lawyers if they have to litigate, lawyers convinced them that collaborative law would work if parties are screened and prepared accordingly.33 nevertheless, clients see the disqualification agreement rather differently than do lawyers. schwab’s survey34 described that only 45% of clients who reached agreement through collaborative law believed that disqualification provision keeps them in the negotiating process when they would have otherwise litigated.35 looking only at that number, it seems that the disqualification provision is not a significant factor for the parties who choose collaborative law. however, that survey was conducted after settlements were reached and it did not explain whether there were other reasons why the 55% stayed in the negotiation process. such a distinction is essential. if they decided to continue the negotiation (when they would have otherwise proceeded to court) due to consideration of duplicative costs which arise as a result of lawyers’ withdrawal, then the disqualification 28 john lande (2013), op.cit., 1344. 29 it is due to their impatience and result oriented attitude. pauline h. tesler, op.cit., 320. 30 family law council. "collaborative practice in family law: a report to the attorneygeneral prepared by the family law council." (2007), 58 31 john lande (2011), op.cit., 5. 32 lawyers considered that disqualification provision will make parties to ‘think twice’ before terminating negotiation process, therefore it helps to build commitment to good faith settlement between them. ibid, 15. 33 ibid. 34 william h. schwab, "collaborative lawyering: a closer look at an emerging practice." pepperdine dispute resolution law journal 4, no. 3 (2004): 370. response rates and composition of the samples: of the 367 surveys sent to lawyers, nine were returned as undeliverable and seventy-one were at least partially completed, for a response rate of 19.8%. participation varied by group, ranging from 12.5% in florida to 29.8% in minnesota. 35 william h. schwab, op.cit., 379. udayana journal of law and culture vol. 3 no. 1, january 2019 84 provision played a significant role in keeping parties at the negotiation table. furthermore, as the study was conducted after disputes were resolved, it did not indicate whether the disqualification provision was an insignificant factor to the disputants when deciding to opt for collaborative law to resolve their dispute.36 hence, the disqualification provision performs a significant role in incentivizing parties to reach a settlement. 2.1.3. disclosure of true and honest information another characteristic of collaborative law is the disclosure of true and honest information. under a participation agreement, parties are required to reveal all relevant and material information which are required by the parties to make a decision with regard to the dispute. 37 exchange of information can be made without formal request. 38 moreover, the disqualification provision requires lawyers, financial advisers and professionals who are involved in collaborative law to resign if their clients intentionally withhold material information or disclose wrong information. 39 hence, this increases the risk of making misrepresentations and facilitates the exchange of true and honest information between parties. such a feature effectively overcomes challenges in the implementation of principled negotiation and mediation. during mediation or negotiation, a party may withhold or divulge false information and their counterpart cannot conduct cross-examination to discover if such information is true. effective negotiation requires the efficient exchange of information between parties, as it will allow them to learn each other’s underlying interests and find common interest which leads into the mutually acceptable settlement. 40 the assurance that parties will disclose true and honest information will facilitate effective negotiation between them. with more incentives to divulge true information, collaborative law facilitates effective negotiation between the parties. 2.1.4. appointment of joint neutral experts appointment of joint neutral experts is the development of collaborative law through the interdisciplinary team approach. 41 parties may appoint a joint neutral expert such as financial expert or physiologist to assist them. a divorce coach assists disputant in emotional management 36 ibid. 37 international academy of collaborative professionals, 4. 38 bobette wolski, op.cit., 228. 39 international academy of collaborative professionals, 13. 40 roberts and palmer posit that for a negotiation to take place, it requires a medium of communication which allows the exchange of information, successful communication about each party’s goals and identification and evaluation of available options by the parties. simon roberts and michael palmer. dispute processes: adr and the primary forms of decision-making (cambridge university press, 2005), 113. 41 pauline h. tesler, op.cit., 330-331. a critical analysis of collaborative law as a dispute settlement mechanism ni wayan desi aryanti 85 and effective communication.42 a child specialist procures a balanced view concerning a child’s needs and parenting plans, while a financial expert aids disputants in budget concerns, addressing financial issues and explaining the consequences of a certain financial arrangement plan.43 the involvement of joint neutral experts will provide parties with ‘value added’ advice which can prevent them from short term consideration settlement.44furthermore, the appointment of neutral experts will help disputants by eliminating conflicting experts’ opinions and save costs, as they only need to appoint one expert. 45 while the involvement of experts can assist parties in the negotiation, it can be argued that such involvement will increase the cost that has to be borne by the parties. however, where a dispute requires expert opinion (for example in case of valuation of joint properties), having one neutral expert whose fee is to be shared by the parties will reduce cost. additionally, as experts are also subject to the disqualification provision and their opinion cannot be used for litigation purposes, it will increase the cost of litigation, thus making litigation less attractive and promote greater incentive for settlement. compared to principled negotiation, fisher and ury also suggest the use objective criteria which may derive from expert opinion during negotiation.46 their approach, however, does not address a situation where there are different objective criteria as the result of the appointment of two different experts. appointment of joint experts will eliminate such an issue, as there will only be one joint expert who will provide parties with an objective standard. 2.1.5. continuous involvement of lawyers during collaborative process in a dispute, parties may not be able to articulate their interest and desires efficiently due to power imbalance, negotiation skills or emotions. in this case, gilson and mnookin suggested that lawyers can facilitate cooperation between parties when they are unable to do so.47 the presence of lawyers will assist parties to effectively communicate their underlying interest during a negotiation in a constructive manner. 48 keet’s research also demonstrated that the negotiation environment improved when lawyers and disputants work together.49 this feature makes collaborative law more 42 pauline h. tesler, op.cit., 331. 43 ibid. 44 ibid. 45 william h. schwab, op.cit., 359-360. 46 roger fisher, william l. ury, and bruce patton, op.cit., 11. 47 ronald j. gilson and robert h. mnookin, "disputing through agents: cooperation and conflict between lawyers in litigation," columbia law review 94, no. 2 (1994): 512. 48 donald a., glenn, thomas f. burrage, donald degrazia, and william stewart, op.cit., 290. 49 john lande (2011), op.cit., 11. udayana journal of law and culture vol. 3 no. 1, january 2019 86 appealing compared to arbitration or mediation.50in arbitration, the binding decision is made by arbitrators who serve as neutral fact finders, making the parties feel that they have no control over the process.51in mediation, the mediator is expected to be a neutral third party who will only provide limited legal advice to parties; hence, insufficient to manage power imbalance between parties.52 furthermore, the absence of a requirement for parties to have lawyers and the limited participation of lawyers during the mediation process exacerbate power imbalances. 53 thus, collaborative law enables disputants to control the process while at the same time ensures that they have legal advisors at their side who can advise them of the legal consequences of their decisions during the negotiation and therefore can manage power imbalance. the aforementioned characteristics of collaborative law make it effective to resolve family disputes and address negotiation and mediation’s drawbacks. the mapping paths of family justice’s research published in 2014 found that among alternative dispute resolutions, collaborative law provided disputants with the highest degree of satisfaction. 54 it is also relatively fast, as 80% of the cases are resolved in less than one year. 55 however, there are also critics of the disqualification provision and its limited application outside family disputes. 2.2. critics of the disqualification provision 2.2.1. compulsion to settle the disqualification provision is at the heart of collaborative law and distinguishes collaborative law from the other form of alternative dispute resolution. the disqualification provision essentially requires the withdrawal of both of the lawyers in the event of: i) withdrawal of either party from the process; ii) parties are not acting in good faith by using litigation as a threat, and iii) clients divulge false information.56 while collaborative law requires principled negotiation, the disqualification provision keeps the parties in negotiation and reaching an agreement.57 however, that agreement may not necessarily be the one that satisfies both parties’ interests. while collaborative law has a high rate of settlements and such settlements are attributed to the disqualification provision, there has not 50 p. oswin chrisman, gay g. cox, and petra novotna, "collaborative practice mediation: are we ready to serve this emerging market," pepp. disp. resol. lj 6, no. 3 (2006): 454. 51 ibid. 52 john lande (2013), op.cit., 1324-1325. 53 ibid 54 jo edwards, amanda sandys and jamie gaw, ‘new opportunities in collaborative practice,’ family law journallexis nexis 48 (2018): 330. 55 john lande (2011), op.cit., 17. 56 elena b langan, op.cit., 281. 57 john lande (2013), op.cit., 1364 a critical analysis of collaborative law as a dispute settlement mechanism ni wayan desi aryanti 87 been a study which demonstrated that such settlement accommodates the parties’ interests. if it is seen from another perspective, it might be that parties stay in the negotiation because they can no longer afford litigation. they have incurred a substantial amount of money and time during collaborative law and will incur duplicative costs of retaining new lawyers and experts for litigation. from the disputants’ point of view, as the cost of litigation (which becomes their alternative to negotiated agreement) is exorbitant, they will be encouraged to accept a less valuable settlement.58 for example, macfarlane’s study found a case where a client had incurred usd 24,000 in lawyers’ fees and had endured nine months of negotiation. 59 in that case, the client found it hard to terminate the negotiation process because of the cost that had been incurred and the cost which would be incurred to litigate with a new lawyer. 60 hence, the disqualification provision may prevent procedural fairness 61 and place disputants in a position where they settle because of cost and time constraints; which may not be in their best interest. from the lawyers’ perspective, because they enter into the contract with their clients for the sole purpose of settlement62, there is a considerable pressure for them to insist that their clients stay in negotiation and reach a settlement. a study conducted in 2004 found that 22% of collaborative lawyers believed that collaborative law puts pressure on clients, particularly on the weaker party.63 moreover, as their contracts are going to be terminated once the case moves to court, there is a strong incentive for lawyers to push their clients to continue negotiation and urge a settlement. thus, the pressure to settle comes in two forms; from the lawyer whose retainer contract relies on the ability to reach a settlement, and from the disputants’ financial constraint which makes the cost of litigation exorbitant. in such a case, collaborative law does not facilitate the parties to achieve an agreement that accommodates their legitimate interests. 2.2.2. ethical concern the disqualification provision further raises ethical concerns regarding lawyers’ representation because it prohibits lawyers from exploring litigation as an option to resolve disputes.64 the ethical issue may arise when it is not in the client’s best interest to settle, but if the case is not 58 ibid. 59 julie macfarlane, "experiences of collaborative law: preliminary results from the collaborative lawyering research project." j. disp. resol. (2004): 239. 60 ibid. 61 family law council, op.cit., 286. 62 larry r. spain, op.cit., 15. 63 anna sapountsis, ‘challenges of collaborative practice and the commercial context’. civil justice.info, march 31, 2018. http://www.civiljustice.info/cgi/viewcontent.cgi?article=1000&context=collab 64 family law council, op.cit., 56. http://www.civiljustice.info/cgi/viewcontent.cgi?article=1000&context=collab udayana journal of law and culture vol. 3 no. 1, january 2019 88 settled, the lawyers’ representation will be terminated. hence, there is a conflict of interest which may limit lawyers from giving the best advice which caters to their clients’ interests. such a situation does not arise in other forms of alternative dispute resolution which aim to achieve a settlement.65in negotiation and mediation, for example, lawyers will not face such issues as there is no requirement to terminate their contract when their clients decide to litigate. hence, they have no incentive not to advice their client to litigate when it is in their client’s best interest to do so. further, the ethics committee in colorado stated that: "it is the opinion of this committee that the practice of collaborative law violates rule 1.7(b) of colorado rules of professional conduct insofar as a lawyer participating in the process enters into a contractual agreement with the opposing party requiring the lawyer to withdraw in the event that the process is unsuccessful.”66 however, that issue can be managed through the participation agreement and the retainer agreement. parties can provide in the participation agreement that each party shall terminate their lawyers if the case is referred to court. the lawyer’s withdrawal from the process is governed by the retainer agreement between lawyer and client. thus, lawyers do not have to enter into a contract with the opposing party which requires their withdrawal in the event of non-settlement. wolski also argues that another drawback of the disqualification provision is that it can be used by a manipulative party to terminate their counterpart’s lawyers at the critical part of a negotiation.67 this is due to the nature of the disqualification provision which requires lawyers to terminate their contract with their clients in the event of withdrawal of either party from collaborative law.68 however, this criticism is anecdotal. the iacp’s research demonstrated that 90% of family law cases ended up in settlements.69 such a high settlement rate suggested that disputants do not manipulate disqualification provisions to terminate their counterpart’s lawyers, because if they do, collaborative law would not be able to record such settlement rates. furthermore, it may only occur in a very rare case of significant power imbalance in which one party is financially more powerful than the other party, and when their involvement in collaborative law is just aimed to drain the other party’s financial resources. however, even in that situation, it will still be more efficient for that party to directly take the case to court. they can allocate their financial resources to win their case and save more time as they do not have to go through the negotiation 65ibid. 66 christopher m fairman, "growing pains: changes in collaborative law and the challenge of legal ethics," campbell l. rev. 30 (2007): 250. 67 bobette wolski, op.cit., 237. 68 ibid. 69 john lande (2011), op.cit., 16. a critical analysis of collaborative law as a dispute settlement mechanism ni wayan desi aryanti 89 process. thus, this drawback is not inherent in collaborative law and can be managed through client screening, which will be explained below. 2.3. managing disqualification provision’s drawbacks 2.3.1. clients screening the ethical issue related to a forced settlement resulting from a disqualification provision may arise because collaborative law is not a one size fits all mechanism to resolve all family disputes. comes asserted that power imbalances, violence, drugs abuse and mental health issues will make collaborative law ineffective, or even worsen the underlying issues.70 this assertion is in line with lande and mosten’s view. lande and mosten found that, in addition to power imbalance, drug abuse and mental health issues, lawyers should take into account trustworthiness, domestic violence, personal motivation and suitability of the parties when assessing the appropriateness of collaborative law to resolve a particular family dispute. 71 where the aforementioned situation occurs, collaborative law is unlikely to work. even if they reach a settlement, it may be because of financial constraints which may not accommodate their interests. in such a case, it is pertinent for lawyers to screen their clients prior to enrolling them in collaborative law. the nature of collaborative law requires disputants who are willing to implement a non-adversarial approach.72 initial screening will help lawyers decide whether a particular client is a suitable candidate for collaborative law. if they are suitable candidates, it is likely that they can reach a settlement which reflects their interest. shefton’s study found that lawyers believed that when clients are properly screened and prepared, collaborative law will likely to be effective.73hence, appropriate screening is essential in ensuring the success of collaborative law as well as in minimizing the ethical issues arising from the disqualification provision. however, initial screening also poses some challenges. it may not be conducted in sufficient time because lawyers may not want to incur substantial unpaid time to do the screening. at the same time, clients may not want to incur the significant cost of screening only to find that they are not a suitable candidate for collaborative law.74 in such situations, initial screening may fail to detect the presence of drugs abuse, violence or power imbalance issues. 75 this issue, however, is not inherent in collaborative law.76 it can be avoided by thorough screening and lawyers’ commitment 70 diana m. comes, "meet me in the middle: the time is ripe for tennessee to adopt the uniform collaborative law act," u. mem. l. rev. 41 (2010): 565. 71 john lande (2011), op.cit., 12. 72 joel m. pratt, "three tiers for collaborative law: a moderate solution," resolved: j. alternative disp. resol. 5, no.2 (2015): 11. 73 john lande (2011), op.cit., 15. 74 joel m. pratt, op.cit., 12. 75 ibid. 76 ibid. udayana journal of law and culture vol. 3 no. 1, january 2019 90 which allows them to make a fair judgement as to the suitability of a client to collaborative law. there is also an incentive for lawyers to conduct this screening. as a collaborative lawyers’ sole objective is a settlement, client screening will aid them in achieving that objective. a suitable candidate who takes a non-adversarial approach in the negotiation will allow principled negotiation to occur; thus, resulting in a mutually acceptable settlement. therefore, it is in the lawyers’ interest to conduct a proper screening. 2.3.2. incorporating mediation into collaborative law another way to address the disqualification provision’s drawback is by incorporating mediation into the collaborative law process. in the event of an impasse, instead of terminating the lawyers’ representation and proceeding to court, parties can enter into a mediation process with the assistance of their existing lawyers. incorporating mediation into the collaborative law will benefit clients in two ways: 1. mediation will allow the involvement of an independent third party to resolve the dispute, while at the same time maintain a representation of their lawyers and service from existing experts. hence, they do not have to incur duplicate costs. 2. collaborative law requires the continuous involvement of lawyers throughout the process (through four-ways meeting). the inclusion of mediation into the process will allow parties to reap the benefit of mediation, while at the same time it addresses power imbalance issues which usually arise in mediation due to limited involvement of lawyers during the process. the mapping paths to family justice’s study found that disputants prefer to resolve their disputes in an amicable manner with personal guidance and assistance when needed.77 therefore, mediation can be done through five-ways meeting in which an independent third party mediates the case with the presence of lawyers throughout the process. this ensures that clients are always equipped with the support and advice of their lawyers. cox’s survey found that of twenty-eight cases which employ mediation in conjunction with collaborative law, none of them was terminated.78thus, combining mediation into collaborative law processes brings a positive impact. it provides parties with an alternative in the case of an impasse. they can avoid litigation and duplicative costs, while at the same time they are not pushed into an unwanted settlement. 2.4. limited application of collaborative law in non-family disputes as mentioned previously, while collaborative law is effective in resolving family disputes, its application in commercial disputes is rather 77 jo edwards, amanda sandys and jamie gaw, loc.cit. 78 p. oswin chrisman, gay g. cox, and petra novotna, op.cit., 460. a critical analysis of collaborative law as a dispute settlement mechanism ni wayan desi aryanti 91 limited. 79 the nature of commercial disputes and the resistance to collaborative law’s characteristics may contribute to its limited application. 2.4.1. nature of non-family disputes collaborative law requires principled negotiation to take place, and not all disputes can be resolved through principled negotiation. parties in family disputes usually have a common interest and when children are involved, they want to maintain a long-term relationship. such common interest may be children or financing the disputes from the same source of funds.80 however, in non-family disputes, disputants may not have common interests, or their interests have substantially diverged. in case of tort, discrimination or sexual harassment, for example, the offender’s interest is to keep the dispute settlement in private area, while claimant may want to settle the dispute through litigation because they want to send a message to the public. 81 in such case, collaborative law will not be suitable for the parties to resolve their disputes and litigation is inevitable, because one party wants to obtain vindication, judgement and set a precedent which cannot be obtained from collaborative law. a family dispute is likely to be a one-off case. although divorce cases have become more common, it is unlikely that parties will be engaged in similar disputes in the future. therefore, a law firm may be less concerned about referring a client in such a situation to another firm; when dispute proceeds to court.82 however, this is not the case with non-family disputes. many commercial disputes involve the same parties 83 which makes them long-term clients for a law firm.84 there will be more concern for a firm to refer their clients to another firm, as it will affect their source of income and there is a chance that the client will have the other firm to represent them in future disputes. this will affect the firm’s potential income even further. 2.4.2. resistance to collaborative law’s feature the characteristic of collaborative law which refrains from litigation also contributes to the resistance of lawyers to use it in commercial disputes. lawyers believe that litigation is their ultimate test. 85 it is conducted in public and presents them with a tremendous intellectual and emotional challenge. at the same time, it is also considered to be their biggest stream of revenue.86 79 david a. hoffman, op.cit.,1. 80ibid. 2. 81ibid. 82ibid. 83 in international trade for examples, a certain party can engage in similar disputes with other parties. a ship provider can engage into charter party dispute with more than one of their charterers. 84 david a. hoffman, op.cit., 2. 85ibid. 7. 86ibid. udayana journal of law and culture vol. 3 no. 1, january 2019 92 collaborative law with its disqualification provision will prevent them from obtaining such exposure and benefits. therefore, the firms may perceive it as threatening their livelihood. 87the result is resistance to the use of collaborative law in commercial disputes and limiting its application in non-family disputes. 3. conclusion in summary, the participation agreement and disqualification provision incentivize parties to engage in good faith discussion, exchange true and honest information and to reach a settlement. it is because the parties are at risk of losing their lawyers and having to incur a duplicative cost if the case proceeds to court. the involvement of experts and lawyers through four-way meeting also contributes to the high rate of settlement. however, the disqualification provision may create a financial constraint which forces parties into a settlement that does not reflect their interest. furthermore, it also poses ethical issues. lawyers may advise their client to litigate (even when it is in their client’s best interest to do so), due to the nature of the disqualification provision; which requires termination of lawyers’ representation in a case where the dispute is litigated. in such a case, client screening and the incorporation of mediation into collaborative law can minimize the unwanted impacts of the disqualification provision. finally, while the aversion to litigation made collaborative law more effective in resolving a family dispute, such an approach is highly resisted in non-family disputes. the nature of such disputes may significantly differ from family disputes, and it limits firms’ revenue stream which substantially derives from litigation. hence, making collaborative law’s application in non-family disputes is limited. acknowledgement this article is an advanced version of an essay made by author during her study at university college london, master of law programme in 2018, on alternative dispute resolution course (code: lawsg094). the author would like to express a great honour to john lowry who taught this course and the british government who funded the author’s study in the uk through chevening scholarship. argument and opinion contained in this article is an academic view of the author and do not necessarily linked to author’s affiliation. 87ibid. a critical analysis of collaborative law as a dispute settlement mechanism ni wayan desi aryanti 93 bibliography book fisher, roger, william l. ury, and bruce patton. getting to yes: negotiating agreement without giving in. penguin, 2011. glenn, donald a., thomas f. burrage, donald degrazia, and william stewart. family law services handbook: the role of the financial expert. john wiley and sons, 2010. nolan-haley, jacqueline. alternative dispute resolution in a nutshell, 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"collaborative law: an (un) ethical process for lawyers?." legal ethics 20, no. 2 (2017): 224-241. https://doi.org/10.1080/1460728x.2017.1397401 other documents unpublished description of iacp research, information sheet, faq based on cases reported to the international academy of collaborative professionals research project (oct. 25, 2009), international academy of collaborative professionals, ‘standards and ethics’ (2017) website content abney, sherrie r. why would anyone use civil collaborative law?. american bar association, march 31, 2018, https://www.americanbar.org/content/dam/aba/publications/dispute _resolution_magazine/abney_why_use_gvb_edit.authcheckdam.pdf jensen, keld. why negotiators still aren't 'getting to yes'. forbes, january 11, 2018, https://www.forbes.com/sites/keldjensen/2013/02/05/whynegotiators-still-arent-getting-to-yes/#24009b7a2640 sapountsis, anna. ‘challenges of collaborative practice and the commercial context’. civil justice.info, march 31, 2018. http://www.civiljustice.info/cgi/viewcontent.cgi?article=1000&context= collab https://doi.org/10.1080/1460728x.2017.1397401 https://www.americanbar.org/content/dam/aba/publications/dispute_resolution_magazine/abney_why_use_gvb_edit.authcheckdam.pdf https://www.americanbar.org/content/dam/aba/publications/dispute_resolution_magazine/abney_why_use_gvb_edit.authcheckdam.pdf https://www.forbes.com/sites/keldjensen/2013/02/05/why-negotiators-still-arent-getting-to-yes/#24009b7a2640 https://www.forbes.com/sites/keldjensen/2013/02/05/why-negotiators-still-arent-getting-to-yes/#24009b7a2640 http://www.civiljustice.info/cgi/viewcontent.cgi?article=1000&context=collab http://www.civiljustice.info/cgi/viewcontent.cgi?article=1000&context=collab vol. 3, no. 2, july 2019, pp. 123-140 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3223 e-issn 2549-0680 123 the diaspora project on education sector: cultivating positive perception of indonesia through international education ratih indraswari* department of international relations, parahyangan catholic university, bandung-indonesia nyoman mas aryani** department of constitutional law, faculty of law udayana university, bali-indonesia article received: 28th december 2018 accepted: 4th july 2019; published: 31st july 2019 abstract the massive support to develop a new category of indonesian diaspora that is called as a “special friends of indonesia’ (indonesianist) seems would remain become a domain of academic and public debates. the existing indonesian law and regulations, even though have been amended many times and during the debates on law creating process have tried to adopt the model of dual citizenship, do not affirm this new category. despite this current legal situation, this article argues that this special friend can be cultivated from the international education section. this paper is academic research in the field of social sciences, especially international relations that analyzes statements, views, and opinion by government officers, diaspora, and indonesianists as well as some law and regulations. the research suggests that the concept of special friends of indonesia (indonesianists) is too broad and poses a challenge for the conceptual and legal definition. fully considering the high contribution of indonesianist, nurturing of future indonesianist especially through student mobility programs is best to take place in the situation allowing for exposure and socialization process to be built internally. keywords: indonesia; diaspora; category; international education how to cite (chicago 16th): indraswari, ratih, and nyoman mas aryani. "the diaspora project on education sector: cultivating positive perception of indonesia through international education." udayana journal of law and culture 3, no. 2 (2019): 123-140. https://doi.org/10.24843/ujlc.2019.v03.i02.p01. doi: https://doi.org/10.24843/ujlc.2019.v03.i02.p01 * email/corresponding author: ratih.indraswari@unpar.ac.id ** email: mas_aryani@unud.ac.id https://doi.org/10.24843/ujlc.2019.v03.i02.p01 mailto:ratih.indraswari@unpar.ac.id mailto:mas_aryani@unud.ac.id the diaspora project on education sector: cultivating positive perception of indonesia through international education ratih indraswari and nyoman mas aryani 124 1. introduction 1.1. background the term diaspora has received scholars’ attention during the last two decades. its utilization is shared by different fields of study with wide dispersion based on traditional geographical consideration, expanded into that of language, religious, politic, economic and other transnational issues. diaspora is inherently linked to the idea of homeland. although, debates on whether ‘home’ is limited into a set of geographical boundaries instead of an imagined community that is constructed through value are prevalent. yet diaspora still is not independent of the link to that origin state. globalization further supports the establishment of periphery community away from the core community. this geographical context shares a certain linkage beyond the understanding of formal citizenship. it touches upon the constructed meaning of blood running through their descendant in the form of identity. as a consequence, states across the globe have acknowledged the existence of a community of their own beyond national borders. policies on engagement have been enacted into several degrees of an integrative approach, ranging from acceptance for dual citizenship into quasicitizenship status. indonesia does not accept dual citizenship status. the experience of political turmoil during the colonialization era contributes to indonesian fears of foreign intervention through the ‘ambiguity’ of loyalty carried by the dual citizenship status. however, the indonesian government has made an effort to integrate diasporic communities abroad by the introduction of regulation of oversea indonesia community in 2017. discourse on indonesia diaspora reached its peak on the establishment of indonesia diaspora network in 2012. this network proposes four (4) categories of diaspora involving citizen indonesia abroad, indonesian who have relinquished their citizenship, foreign descendants of indonesian and indonesianist (special friends of indonesia). the first three categories are covered by indonesian regulation on the diasporic community. however, the fourth one has been a matter of scholarly debate as the lack, if not in existence, of the conceptual background to support it. the unviable support of conceptual and legal aspect to the last category certainly poses challenges in understanding it, yet it does not mean that it is not contributive to indonesia’s interests. on the 30th of november 2018 in bali, the ministry of foreign affairs of indonesia launched its first indonesianist forum. this forum invites indonesianist speakers and extends its engagement by cooperating with universities across indonesia to send their foreign students to participate in the forum. it is argued that the forum is a venue for ‘friends’ of indonesia to share and nurture the interest and attractiveness toward indonesia development. borrowing the conceptual approach of soft power, nurturance of indonesia’s special friends displays udayana journal of law and culture vol. 3 no. 2, july 2019 125 the attractiveness of indonesia within the international stage. defining who indonesia’s special friend is, is the next challenge to be addressed. 1.2. purpose this paper argues that this special friend can be cultivated from the international education section. two important understanding came out of this argument. 1. special friend refers to foreign students who have been spending their time in indonesia. they have experienced indonesia through their live-in experience and have been exposed to and even internalized the values and norms of indonesia’s society. they might be, as of now, do not exhibit the high quality required to be ‘special friend of indonesia’. but certainly, they have the potential to be one in the long future. this will highly dependent on their experiences on prearrival, during their time in indonesia and post their time. 2. international education is the breeding ground of mutual exchanges of different backgrounds emphasizing by people to people connection. higher education institution (hei) plays an important role in this section. internationalization strategies in favour of the increased of global students flow to allow for the interaction to take places. thus successful internationalization strategies of hei in encouraging for student mobility needs support from the government. fortunately, globally the finding shows that students’ mobility is the policy area receiving the most support from policymakers.1 1.3. method this article reflects academic research in the field of social sciences, especially international relations. it applies concept and theories that may be applied to explain the issues discussed, for example, nationality, national interest, soft power, diplomacy, and state authority. comparative studies were conducted to present situation in asean countries such as malaysia, singapore, thailand, and vietnam. statements, views, and opinion by government officers, diaspora, and indonesianists are used to clarify relevant facts. in order to give a legal background and to provide legal definition to some concepts, this article cites some international legal instruments and indonesian laws and regulation. 1 janet ilieva and michael peak, “the shape of global higher education: national policies framework for international engagement,” british council, 2016; janet ilieva, pat killingley, vangelis tsiligiris, and michael. peak. "the shape of global higher education: international mobility of students, research and education provision”. volume 2. london: british council, 2017. the diaspora project on education sector: cultivating positive perception of indonesia through international education ratih indraswari and nyoman mas aryani 126 1.4. literature review the definition of diaspora hardly reached a consensus amongst academicians. its original idea however highly related to that of mobility out of a home that is rigidly linked to a certain area of geography. attempts to break out the demarcated area cause individual to gain a different categorization. works on the classical discussion of diaspora show it is identic with the concept of homeland.2 early writings on diaspora were focusing on that of displacement from the homeland, depicting marginalization experienced through victim diaspora in cases such as the jewish, greek, and armenian diaspora.3 scholars of diaspora generally agree that diaspora is identic with migration, homeland orientation and the existence of the border.4 thus, the traditional perspective often uses the references of displacement and marginalization as the highlight of diaspora discourse.5 even though diaspora is easily connected with ethnicity, mobility, and displacement, a more positive light emerge by arguing that diaspora should better be seen in light of connectivity. 6 diaspora concept is also not statically defined as given communities generated by shared ethnicity and national group solely, but it is also an imagined community that continuously reconstructed and reinvented.7 conceptually, diaspora should be expanded to understand that its transnationalism is not always negative but can create a positive aspect on diasporic communities.8 to argue about modern diaspora means to question the traditional idea of home. home can be perceived as the place of return but it can be also perceived as a lived experience of the locality. meaning home is not a specific place but it also constructed. 9 modern diaspora encourages the establishment of transnational connectivity that grows beyond the negative nuances. instead, this transnational flows and linkage turn into the forces that intensify globalization.10 diaspora thus, in essence, is a spatial issue. 2 roger brubaker, “the ‘diaspora’ diaspora.” ethnic and racial studies 28, no.1 (2005): 1-19 3 robert cohen, global diaspora: an introduction. london: ucl press, 1997 4 roger brubaker, loc.cit.; melvin ember, carol r ember, and ian skoggard (eds.). (2004). encyclopedia of diasporas: immigrant and refugee cultures around the world. volume i: overviews and topics; volume ii: diaspora communities. springer science & business media. 5 william safran, "diasporas in modern societies: myths of homeland and return." diaspora: a journal of transnational studies 1, no. 1 (1991): 83-99 " 6 roza tsagarousianou, "rethinking the concept of diaspora: mobility, connectivity and communication in a globalised world." westminster papers in communication and culture 1, no. 1 (2004): 52-65 7 ibid. 8 robert cohen, loc.cit. 9 avtar brah, cartographies of diaspora: contesting identities. new york: routledge, 2005. 10 james clifford, routes: travel and translation in the late twentieth century. cambridge ma: harvard university press, 1997 udayana journal of law and culture vol. 3 no. 2, july 2019 127 the contribution of the modern world will bore a different significant due to technological advancement. geographical proximity no longer has a hindering standing, as linkages are sustained by globalization. diaspora has transformed from a technical term of philosophy into a term used by different fields and subfields study across humanities and social sciences. unavoidably, the diaspora has been widely used in media and popular culture. scholars identify diaspora due to its continued involvement with homeland politics, 11 or the increasing economic aim by labour migrants. 12 other argue that diaspora can be categorized through language as the unifying character of diaspora. religions are not free from diasporic influences in the creation of trans-border religious communities. certainly, the wide dispersion of diaspora will pose challenges on attempts to conceptualizing it.13 the increasing mobility steered by education seekers adds into the global equation of mobility above. how the latter form of diaspora benefits indonesia needed to be answered. advocates of soft power argue that interest and attractiveness play a significant factor in co-opting people to support indonesia. 14 the cultivation of state’s attractiveness can be attained through public diplomacy strategy.15 one of the public diplomacy models is the existence of exchange under international education.16 international education requires multi governance level in its approaches involving not only the state but also involves non-state actors. these non-state actors vary from higher education institutions, educational agencies, and international students.17 11 gabriel (gabi) sheffer, "transnationalism and ethnonational diasporism." diaspora: a journal of transnational studies 15, no. 1 (2006): 121-145. 12 gabriel sheffer. “diaspora politics: at home abroad”. cambridge: cambridge university press, 2003. 13 brubaker, loc.cit. 14 joseph s. nye, "public diplomacy and soft power." the annals of the american academy of political and social science 616, no. 1 (2008): 94-109. 15 jan melissen, the new public diplomacy: soft power in international relations new york: palgrave macmillan, 2005; jan melissen, “public diplomacy,” in the oxford handbook of modern diplomacy ed. andrew f. cooper et al. oxford: oxford university press, 2013. 16 nicholas j. cull, public diplomacy: lessons from the past. los angeles: figueora press, 2009. 17 bob sugeng hadiwinata, “reciprocity and relationship building through education: the acicis field study program in west java,” in linking people: connections and encounters between australians and indonesians berlin: regiospectra, 2015: 135-152; jemma purdey, "investing in good will: australia’s scholarship programs ffr indonesian tertiary students, 1950s–2010," in linking people: connections and encounters between australians and indonesians (berlin: regiospectra, 2015): 111-132; caitlin byrne and rebecca hall, “australia’s international education as public diplomacy: soft power potential,” clingandael discussion papers in diplomacy vol.121 (2011); caitlin byrne and rebecca hall, “realizing australia’s international education as public diplomacy,” the australian journal of international affairs 647, no.4 (2013): 419-438; caitlin byrne and rebecca hall., “international education as public diplomacy,” research digest 3 (2014). the diaspora project on education sector: cultivating positive perception of indonesia through international education ratih indraswari and nyoman mas aryani 128 international education provides the venue for interaction to take place between foreigner and indonesian through its exchange platform. mutual understanding can be realized on the foundation of people to people contact as attractiveness is highly related to emotional construction. exchange in this context highlights the experiences of foreign students in indonesia making them a great potential agent to support indonesia’s development. 2. result and analysis 2.1. defining the concept of ‘special friend of indonesia’ as a new meaning of diaspora 2.1.1. indonesia government stance on diaspora referring to diaspora, indonesia stance is certain on their disagreement to favour for dual citizenship. however, this does not mean that no effort has been taken to acknowledge diaspora by granting special status for their quasi-citizenship abroad referred to ‘ethinizenship’.18 based on the data given by the ministry of foreign affairs, it is counted that up to 4.3 million indonesia’s citizen living abroad, although further data on the classification has not been out yet.19 indonesia’s diaspora trend has shown that supporting factors for indonesian to go abroad are triggered by sometimes mixed political, economic, and education factors. political constraints of certain racial background in indonesia have been prompting the migration out of indonesia reaching its recent peak on the set of 1998 tragedies. economically, indonesia’s outbound migration is mainly associated with migrant workers. with most indonesian migrant workers taking low skilled employment abroad, they disagree on diaspora terminology itself. they argue the terminology is biased and subjected to inequality by exclusively referring to those of that elite position on white-collar instead of the bluecollar. the term of indonesia’s diaspora has been received with a mixed feeling by indonesian’s citizen abroad. on the other side increasing economic growth and awareness of the quality of foreign education triggered the rise of education seeker. hence, it is projected that indonesia will overcome american in the number of student mobility by 2024. the issues concerning indonesia diaspora rests heavily on fundamental issues of who is eligible to be called as diaspora? the 18 rainer baubock, “stakeholder citizenship and transnational political participation: a normative evaluation of external voting,” fordham law review vol. 75 no.4 (2007); harijanti et al., “citizenship and the indonesian diaspora: lessons from south korean and indian experiences,” border crossing 2 no.8 (2018): 297-310. 19 a. basnur, “pemberdayaan masyarakat indonesia di luar negeri untuk kepentingan nasional,” kementerian luar negeri republik indonesia, 2017, https://www.kemlu.go.id/id/lembar-informasi/documents/ paparan%20 direktur %20diplik%20-%20forum%20bakohumas%20tematik%20kemlu%202017.pdf. udayana journal of law and culture vol. 3 no. 2, july 2019 129 introduction of a new concept by the indonesian diaspora network (idn),20 create a positive conundrum forcing us to re-define the understanding of diaspora. although citizenship and quasi-citizenship concept alike were addressed, problems in its implementation can still be found. the international community pays a serious concern on the citizenship clarity of every person. it can be seen in article 15 of the universal declaration of human rights (udhr) that determines the right of everyone to have a nationality and the protection given to all persons not to be arbitrarily deprived of his/her nationality, nor denied the right to change his/her nationality. the international covenant on civil and political rights (iccpr) that has been ratified by indonesia through law no. 12 year 2005, puts a concern on the issue of citizenship and the right of the child. article 24 (3) of this covenant explicitly says “every child has the right to acquire a nationality.” issue related to regulating of unlimited dual citizenship could be a concern by indonesia’s government. president joko widodo had signed two regulation for giving facility and ability for the diaspora to actively participate on the economic, social and culture development. the first regulation is government regulation no. 26 year 2016 regarding amendment of government regulation no. 31 year 2013 regarding implementation regulation of act no. 6 year 2011 regarding migration, on 27 june 2016. in article 111 paragraph (2) regulating visiting visa for several times of visiting for five years calculated since issued date, and article 136 that amendment with three paragraph are paragraph (4), (5) and (6) regulating residing permit with exceptional for foreigner as ex indonesia’s citizen and their family. they classify that the narrow definition can be covering three categories of diaspora namely the former indonesian citizen, their spouse, and their children. the second regulation is presidential regulation no.76 year 2017 regarding facility for overseas indonesian community, dated on 3 august 2017. the broader definition is found in article 1 (3) clarifies foreigners as people who are not indonesian citizens including former indonesian citizens, children of former indonesian citizens, and foreign citizens whose biological parents are indonesian citizens who live and / or work abroad. article 1(4) of this presidential regulation defines ‘masyarakat indonesia di luar negeri‘ (overseas indonesian community) in are indonesian citizens and foreigners who live and/or work abroad. the presidential regulation no. 76 year 2017 was aimed to engage the quasi-citizenship issues that alternate the ‘no dual citizenship policy’ as previously stipulated under law no. 62 year 1958 and law no. 12 year 20 indonesian diaspora network. deklarasi diaspora indonesia. http://www.diasporaindonesia.org/index.php/idn/programmes http://www.diasporaindonesia.org/index.php/idn/programmes the diaspora project on education sector: cultivating positive perception of indonesia through international education ratih indraswari and nyoman mas aryani 130 2006, both concerning the citizenship of the republic of indonesia. the latest law gives an exemption to children before the age of 18. this presidential regulation also enables the government to issue indonesian community card abroad (kmiln) that is technically further regulated under minister of foreign affairs of the republic of indonesia regulation no. 7 of 2017 concerning the issuance and revocation of indonesian community overseas cards. article 3 of this ministerial regulation determines that kmiln has the function of identification of indonesian society abroad and potential mapping and networking tools for the indonesian community abroad for national interests. the kmiln would not apply permanently as it is valid for 2 (two) years and can be extended (article 6 and 7). the kmiln policy caused criticism from the diaspora because it considers the granting of the kmiln to be more about collecting data on the number of indonesian citizens abroad and due to its non-automatically enabler of the existing facilities, applies to those who have relinquished their indonesian citizen. the new regulation mostly gives benefits to an overseas indonesian citizen, who are mostly migrant workers. 21 but there are also positive opinions which argue that this is the first step for the indonesian government's recognition of the existence of diaspora and the re-establishment of broken relations due to differences in passports.22 courts in indonesia do not play a role in clarifying or make progress to enlarge the meaning of diaspora. as far as concerns, there are no court decisions specifically dealing with the issue of diaspora. the most related case usually questions the issue of the requirements and procedures of becoming an indonesian citizen.23 a potential diaspora jurisprudence due to the willingness of indonesian chinese expatriates holding foreign citizenship to obtain indonesian citizenship that results in dual citizenship, would not be realized as these individuals have no legal standing before the constitutional court to submit a constitutional review on law no. 12 year 2006 concerning the citizenship of the republic of indonesia. 24 facing the hopes of the diaspora to be given dual citizenship, it can be compared with the countries of india and south korea that accommodates diaspora interests by providing immigration facilities. they have adopted quasi-citizenship for their descendants overseas. india created the person of indian origin (pio) card scheme in 1998 and the overseas citizens of india 21 susi dwi harijanti, bilal dewansyah, ali abdurahman, and wicaksana dramanda. "citizenship and the indonesian diaspora: lessons from the south korean and indian experiences."border crossing 8, no. 2 (2018). 297-310. 22 “kehadiran kartu diaspora indonesia mendapat tanggapan negatif,” detiknews, https://news.detik.com/abc-australia/d-3613331/kehadiran-kartu-diaspora-indonesiamendapat-tanggapan-negatif 23 see for example, decision of the constitutional court of the republic of indonesia no. 80/puu-xiv/2016, para [2.1] 24 tundjung herning sitabuana, "indonesian chinese diaspora, dual citizenship and indonesian development." constitutional review 1, no. 1 (2015): 50-71. https://news.detik.com/abc-australia/d-3613331/kehadiran-kartu-diaspora-indonesia-mendapat-tanggapan-negatif https://news.detik.com/abc-australia/d-3613331/kehadiran-kartu-diaspora-indonesia-mendapat-tanggapan-negatif udayana journal of law and culture vol. 3 no. 2, july 2019 131 (oci) card scheme in 2003. the two schemes merged in 2015 into the overseas citizens of india card holder (occ) that gives benefits not only in the form of visa exemptions for visiting and staying in india but also guaranteeing some legal rights with the exception of political participation.25 this means an exception in term of guaranteeing voting rights or to participate in elections and rights to hold public office.26 different attitude is shown by the korean government, though the immigration law regulated in the act on the immigration and legal status of overseas korean act) in 1999 with the f-4 visa scheme with its amendment in 2004. this law gives benefits such as freedom of employment and economic activity, and national treatment with regard to real property rights and transaction, foreign exchange transactions and health insurance and pensions. 27 india and south korea have made a clear definition of their diaspora as groups of former citizens and their descendants to a number of generations who live outside their native country. based on that experience, dewansyah has an opinion that indonesia needs to rethink the diaspora category, mainly based on dino pati djalal’s opinion because it covers not only indonesian citizens and their descendants but also indonesian citizens abroad and foreigners who “love” indonesia (indonesianist/ special friends of indonesia). 28 that last category will lead to confusion because it will be difficult to make criteria and clear definition. reviewing from the description above, it can be concluded that everyone has the right to citizenship and indonesian government sees that it is time for dual citizenship or quasi -citizenship to become a necessity for the diaspora. nevertheless, it is deemed necessary to have a more in-depth study and discussion if there is a possibility of a way to revise the citizenship law adopted. 2.1.2. social awareness awareness of the potential contribution of indonesian diaspora came late to indonesia. only in 2012, the first attempt of cultivation was introduced by establishing indonesian diaspora congress, an initiative of dino patti djalal, the indonesian ambassador to the united states of america in los angeles. this congress presuming the initiation of indonesian diaspora network (idn) which is followed by the second congress in jakarta in 2013 and the third congress again in jakarta in the year of 2015. 25 susi dwi harijanti, et.al., op.cit., 298. 26 sohali verma, instruments of engagement: assessing india’s pio and oci scheme, carim–india rr 2013/21, robert schuman centre for advanced studies, san domenico di fiesole (fi): european university institute, 2013. 27 susi dwi harijanti, et.al, loc cit. 28 ibid., 307. the diaspora project on education sector: cultivating positive perception of indonesia through international education ratih indraswari and nyoman mas aryani 132 the fourth congress of the diaspora in 2017 shows an interesting milieu for the development of a new category on who can be considered as diaspora. president barack obama was invited to address the indonesian diaspora congress as a “special friends of indonesia’ due to its childhood history in indonesia. this congress proposes a new trajectory for the focus of indonesian diaspora by introducing a concept of a special friend of indonesia, which later on refer to indonesianist. the idea of ‘special friends of indonesia’ gives an anomaly to the existing concept and understanding of diaspora, especially a problem on its legal definition. idn proposes the 4 categories of diaspora indonesia; (1) citizen indonesia abroad, (2) indonesian who have relinquished their citizenship, (3) foreign descendants of indonesian and (4) indonesianist (special friends of indonesia). the first three categories are well documented legally within the law and regulations as discussed in 2.1.1. scholars argue that the newly proposed categorization is too broad and pose a challenge for the conceptual and legal definition. it is difficult to develop an understanding as this categorization covering not only indonesian citizen abroad and its descendant but also foreigners who their linked to indonesia is not by blood or ancestry, but rest heavily on their ‘love’ for indonesia.29 despite the conceptual conundrum of establishing a conceptual framework for indonesianist, we can not undermine nevertheless in its implication the contribution that can be captivated by indonesia is paramount. 2.2. indonesian diaspora and international education 2.2.1. nurturing indonesianist through international education indonesianist in basic is defined as foreign citizens who “love” indonesia. it covers people from all sort of backgrounds of study and work. so diverse in its origin yet bounded by one thing, their likeness to indonesia. this attractiveness, as conveyed by nye as a soft power source, has the power to contribute to the betterment of indonesia. contribution from indonesianist can take a different form and deliver varying impact’s intensity based on the individual capacity. however, we all can agree that prior to value internationalization that drives them to support indonesia started, a certain degree of exposure toward indonesian value, norms and culture must have been fulfilled. several ‘big names’ heralded as the indonesianist such has developed an affinity toward indonesia through external familiarity emerged due to socialization on political interaction. one hand, dino patti djalal mentioned he is one of indonesia’s special friends based on his steady involvement in 29 m. iman santoso, diaspora, globalisme, keamanan dan keimigrasian [diaspora, globalism, security and immigration]. bandung: pustaka reka cipta, 2014 udayana journal of law and culture vol. 3 no. 2, july 2019 133 promoting and preferring indonesia’s. on the other hand, barack obama has the direct experiences living in indonesia during his youth time, garnering a more internal familiarization on indonesian’s attractiveness. hence, the socialization process necessitates the exchange of mutual understanding. this paper argues that the nurturing of future indonesianist is best to take place in the situation allowing for exposure and socialization process to be built internally. especially highlighting the student mobility platform that allows students to move outside their origin environment, in which they are exposed to a novel value set. this, however, does not overlook that nurturance could also be flourished externally providing a stimulus environment is available. in this sense using education playground as an incubator for the socialization process is highly appropriate for several reasons. first, education provides a neutral background as honest observation is collected. in contrast to a political or economic setting which internationalization process is influenced by corresponding interests. second, mobility student commonly comprised as young adults and they create their understanding of the world through experimental learning. this formative stage is important for socialization values to construct a more understanding of multiculturalism. third, student mobility provides a lengthy duration for students to immerse in the new environment. there is yet a definitive answer to support whether the duration students spent on is correlated positively with the degree of internationalization they have achieved. as cases show that even the short term program generated a better internationalization degree due to the level of exposure they have received, including high local friendship establishment and deep integration to the local social construction. to conclude it is certain to say that student mobility platform provides fertile ground to nurture the future indonesianist. 2.2.2. indonesia education profile: our competitiveness in asean context establishing a fertile ground for student mobility indicates suitable structure must be presented. often we focus on the structure taking place in individual higher education institution (hei), as students' preferences rest significantly on the readiness of host university. nevertheless, the absence of enabling national structure and policy will hinder hei to deliver appropriate readiness for student mobility to take place. student mobility, thus, is no longer an issue of sole internal reconfiguration, but expanded well into the realm of national and regional competition. nationally, the recent decision of directorate general of higher education, indonesian ministry of research and higher education (hereinafter, dikti) to introduce a new indicator of foreign student number the diaspora project on education sector: cultivating positive perception of indonesia through international education ratih indraswari and nyoman mas aryani 134 into their national ranking has re-emphasized its importance. at the same time, it signifies the need for structure improvement within individual hei. although indonesia does not yet adopt a concept of massive commercialization education nationally, we have to increase our education competitiveness. this speaks true when we look no further but into the asean region. indonesia’s position within asean on its education’s provision is promising. based on the research done by the british council on the shape of global higher education: understanding the asean region several key findings are achieved. the research aims to look at the member’s national policies of international higher education. it tries to understand the policy environment and support national gives to hei when relating to the internationalization activities, most notably student mobility. regionally student mobility structure and policy are well established, with nine of ten countries score high or very high in this category. it implies that infrastructure to cater to these mobility presents within universities in asean countries. the scoring of the national policies frameworks looks at 3 main components; open-ness identifies the government’s commitment to internationalization by providing an environment to enable internationalization activities. quality assurance and recognition identifies the regulatory environment to facilitate internationalization activities. last, access and sustainability identifies the promotion of internationalization activities. on the first indicator, indonesia ranks the 5th after malaysia and thailand, both occupying very high, and followed by vietnam, singapore, and indonesia, in which all these countries fare high on their score of openness. this indicates that internationalization strategy is present; on students and academic mobility including visa procedures and integration of international research to national assessment as well as institutional and program mobility on cross border provision. however, challenges pointed out that even visa students is present, its process is still a complicated matter and time-consuming. cross-section management between directorate general of immigration-ministry of law and human rights and diktiministry for research and higher education requires more coordinating attempts. efforts have been done, with the introduction of online application and electronic signature to ease the process. 30 despite the administrative hindrances, director general of institutional of the indonesian ministry for research and higher education patdono suwignjo stated that during the year of 2016, 6.967 study permit has been done by 30 neneng zubaidah, “jumlah mahasiswa asing meningkat,” koran sindo, http://koran-sindo.com/page/news/2017-0515/0/9/jumlah_mahasiswa_asing_meningkat http://koran-sindo.com/page/news/2017-05-15/0/9/jumlah_mahasiswa_asing_meningkat http://koran-sindo.com/page/news/2017-05-15/0/9/jumlah_mahasiswa_asing_meningkat udayana journal of law and culture vol. 3 no. 2, july 2019 135 dikti. but the number is relatively low in comparison to malaysia which aims to reach 250.000 in 2025.31 on the second indicator, indonesia performs unsatisfyingly. quality assurance refers to the existing policies on international students quality, recruitment and teaching assessment for international students. it also covers quality assurance of the academic program specifically on distance learning and branch campuses. recognition of overseas qualification including communication with labour market and foreign degree recognition. indonesia stood at 8th place, on the low category with lao pdr and myanmar which is scored very low. however, the score given is highly related to the contextual standing of indonesia's perspective on education. certainly, branch campuses have not yet been regulated, although the discussion has been made on whether indonesia needs to invite this form of foreign collaboration. regional quality assurances though exist still facing several challenges. the asean university network-quality assurance (aunqa) mechanism is still deemed inclusive and elitist. only selected indonesia university, mostly come from public universities are part of aun member universities. the spirit to allow for wider access nevertheless is shared widely. the asean credit transfer system (acts) has not yet accepted and implemented by all university in indonesia. the idea of somewhat a bologna process is vaguely shared in its implementation of a pan asean education outlook. still, network of national and regional bodies are prevalent in which indonesia’s national body ban-pt is a full member of regional accreditation board. on the last indicator, indonesia ranks the 3rd, on a very high score with thailand, singapore, and malaysia. these indicators have fulfilled indonesia especially in mobility funding both for inbound and outbound activities. scheme for outbound mobility of lpdp scholarship by the indonesian ministry of finance and indonesian ministry of research and higher education dikti-budi scheme has supported indonesian to go abroad. while for inbound mobility scheme such us knb from dikti or dharmasiswa from indonesian ministry of education and culture provided funds for foreigners to come to indonesia. research funding for research collaborations is supported through a research grant from dikti. lastly indonesia through its highlight knb scholarship provides aid to a less developed country and dharmasiswa program on language and intercultural competence policies. nusantara program or world class university program was introduced to encourage cross boundaries collaboration. 31 kementrian pendidikan malaysia, perangkaan pendidikan malaysia 2015, december 2015, https://www.moe.gov.my/images/terbitan/buku-informasi/perangkaanpendidikan-malaysia-2015/perangkaan%20pendidikan%20malaysia%202015.pdf https://www.moe.gov.my/images/terbitan/buku-informasi/perangkaan-pendidikan-malaysia-2015/perangkaan%20pendidikan%20malaysia%202015.pdf https://www.moe.gov.my/images/terbitan/buku-informasi/perangkaan-pendidikan-malaysia-2015/perangkaan%20pendidikan%20malaysia%202015.pdf the diaspora project on education sector: cultivating positive perception of indonesia through international education ratih indraswari and nyoman mas aryani 136 indonesia received high in the first category, low in the second and very high on the third. it can be concluded that nationally indonesia has the policies and environment to support students mobility. it is important to note as well that students mobility is highly dependent on the social and political context of the state. political stability and openness are indonesia’s main attractiveness when it comes to drawing international students. 3. conclusion special friends of indonesia (indonesianists) refers to foreign students who have been spending their time in indonesia who have experienced indonesia through their live-in experience and have been exposed to and even internalized the values and norms of indonesia’s society. from a legal perspective, indonesian law and regulations do not cover the legal definition to categorize indonesianist in the legal meaning of indonesian diaspora. the existing indonesian law only classifies the following categories for indonesian diaspora, namely citizen indonesia abroad, indonesian who have relinquished their citizenship, and foreign descendants of indonesian. scholars argue that special friends of indonesia (indonesianists) as a newly proposed categorization is too broad and pose a challenge for the conceptual and legal definition. despite the conceptual conundrum of establishing a conceptual framework for indonesianist, we can not undermine nevertheless in its implication the contribution that can be captivated by indonesia is paramount. it can be concluded that the nurturing of future indonesianist is best to take place in the situation allowing for exposure and socialization process to be built internally. education playground can be used as an incubator for the socialization process as education provides a neutral background as honest observation is collected. besides, mobility student commonly comprised as young adults and they create their understanding of the world through experimental learning that would have an impact to construct a more understanding of multiculturalism. in addition, student mobility provides a lengthy duration for students to immerse in the new environment. undeniably, student mobility platform provides fertile ground to nurture the future indonesianist. it seems quite realistic to pursue this idea as the current position of indonesia within asean on its education’s provision is promising and just simply needs to increase its education competitiveness. udayana journal of law and culture vol. 3 no. 2, july 2019 137 bibliography book brah, avtar. cartographies of diaspora: contesting identities. new york: routledge, 2005. clifford, james. routes: travel and translation in the late twentieth century. cambridge ma: harvard university press, 1997. cohen, robert. global diaspora: an introduction. london: ucl press, 1997 cull, nicholas j. 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http://koran-sindo.com/page/news/2017-05-15/0/9/jumlah_mahasiswa_asing_meningkat http://koran-sindo.com/page/news/2017-05-15/0/9/jumlah_mahasiswa_asing_meningkat the diaspora project on education sector: cultivating positive perception of indonesia through international education ratih indraswari and nyoman mas aryani 140 minister of foreign affairs of the republic of indonesia regulation no. 7 of 2017 concerning the issuance and revocation of indonesian community overseas cards presidential regulation no 76 year 2017 concerning facility for oversea indonesians community case law decision of the constitutional court of the republic of indoensia no. 80/puu-xiv/2016 other document jovenir, christelle m. “diaspora diplomacy: functions, duties, and challenges of an ambassador.” understanding diaspora diplomacy (june 2013). udayana journal of law and culture vol. 02 no.1, january 2018 1 proper, weighty and extremely weighty cause to end an employment contract in finland emma-lotta mäkeläinen* uef law school, university of eastern finland, joensuu, finland sofia toivonen** uef law school, university of eastern finland, joensuu, finland tiina räsänen*** uef law school, university of eastern finland, joensuu, finland abstract employment relationship can be ended in many ways and under different circumstances. this article discusses the rules in finland regarding the termination of employment contract. it analyses in outline what can be considered as a proper and weighty reason or an extremely weighty reason to end an employment contract. the finnish employment contracts act demands that there must always be a proper and weighty reason to end the employment contract. if the employer wants to end the employment contract summarily without notice, there must even be an extremely weighty reason to do that. even though the employment legislation stipulates that there must be a legal ground to end the employment contract, the legislation does not contain any list of the acceptable grounds of termination or cancellation of the employment contract. in the legal practice and legal literature, it has been argued that the proper and weighty reason may be for example the neglect of the work obligations, competing activity and violating of the business secrets, use of intoxicants, criminal activity and inappropriate behaviour and in some cases even illness. however, the grounds for the termination or cancellation of the employment contract cannot be precisely defined because every termination and cancellation of the employment contract is unique. keywords: termination, cancellation, employment contract, law, finland . how to cite (chicago-16th): mäkeläinen, emma-lotta. “proper, weighty and extremely weighty cause to end an employment contract in finland.” udayana journal of law and culture 2, no. 1 (2018): 1-27. https://doi.org/10.24843/ujlc.2018.v02.i01.p01 doi: https://doi.org/10.24843/ujlc.2018.v02.i01.p01 vol. 02, no. 1, january 2018, 1-27 1 * e-mail: emmama@uef.fi ** e-mail/corresponding author: sofia.toivonen@gmail.com *** e-mail: tiinras@uef.fi. 2 1. introduction 1.1. background in finland, työsopimuslaki (the employment contracts act, 55/2001, tsl) regulates employment contracts. the act considers the employee as the weaker party in an employment contract. that is why the law establishes mandatory legal minimum standards for the protection of employees. the employment contracts act and työehtosopimuslaki (the collective agreements act, 1946/436) are the most important sources of finnish labour law. there are hundreds of collective agreements that determine the minimum level of wages and other terms of employment contracts in various industries. an employment contract regulates an employment relationship between an employer and an employee. in addition, companies may also have their own rules and regulations. the labour court issues final judgments on disputes regarding interpretation of collective agreements.1 the employment contract can end in many ways in finland. an employment relationship may end by giving notice, cancelling the employment agreement or through the expiration of a fixed-term employment agreement. if the employment agreement is terminated by giving notice, the employment relationship ends after the notice period. if an employment agreement is cancelled, the employment relationship ends immediately. the employment contract may also be dismissed when the employee has reached the age of retirement2. additionally, during the trial period3, the employment contract may also be cancelled with immediate effect by either party. legislation, and if applicable, a collective agreement, as well as the employment agreement itself, set out detailed rules regarding the valid grounds for terminating an employment relationship. according to employment contracts act, the employer shall terminate a valid employment contract only with a proper and weighty reason and cancel it only with an extremely weighty reason. however, there is not a list containing the grounds for 1 on a general level, labour law can be divided into employment contracts act, työehtosopimuslaki (collective agreements act, 1946/436), lakiyhteistoiminnasta yrityksissä (act on co-operation within undertakings, 334/2007), työterveyshuoltolaki (occupational health act, 2001/1383) and työturvallisuuslaki (occupational safety act, 738/2002) (including provisions regulating working time and annual holidays), and social security law. cf. markus äimälä and johan åström and mikko nyyssöä. finnish labour law in practice. (helsinki: alma talent oy, 2012), 15; aapo, surakka. access to finnish law. (helsinki: sanoma pro, 2012), 188. 2 an employee’s employment relationship is terminated without giving notice and without a notice period at the end of the calendar month during which the employee reaches the age of retirement, unless the employer and the employee agree to continue the employment relationship. the retirement age is 68 for those born in 1957 or earlier, 69 for those born in 1958–1961, and 70 for those born in or since 1962. the employer and the employee may agree on a fixed-term continuation of an employment relationship. (tsl 6:1a). 3 the employer and the employee may agree on a trial period of a maximum of six months starting from the beginning of the work. during the trial period, the employment contract may be cancelled by either party. the employment contract may not, however, be cancelled on discriminatory or otherwise inappropriate grounds with regard to the purpose of the trial period. (tsl 1:4) proper, weighty and extremely weighty cause to end an employment contract in finland emma-lotta mäkeläinen, sofia toivonen, and tiina räsänen udayana journal of law and culture vol. 02 no.1, january 2018 3 termination or cancellation in the employment contracts act. the lack of legislative articulation of these legal grounds causes many problems in applying the act. 1.2. purpose, scope, and method this article analyses in outline what can be considered as a proper and weighty reason or an extremely weighty reason to end an employment contract. this is a current topic in the finnish legal system. furthermore, the lack of clarity of these grounds causes many problems in the interpretation. employment contracts act does not give a straight answer to the question what can be considered as a proper and weighty reason or an extremely weighty reason to end an employment contract. the legal practice and legal literature can be used in the problematic questions of interpretation when the law fails to give the sufficient answer to the question mentioned above. it cannot be denied that the issue of freedom of movement and the membership of finland in the european union have an impact on the development of labour law in finland. what this article offers is a lesson-learned in which finnish legal system and its practice on termination of employment might be useful for not only european legal scholars and law practitioners, but also for a wider scope of readers over the world.4 this paper uses some finnish legislation, including collective agreements act, employment contracts act, act on co-operation within undertakings, occupational health act, and occupational safety act. juridical analysis provided in this article very much refers to some judgments awarded by the labour court of finland, the court of appeal, and the supreme court of finland. in addition, it also cites some relevant books, journals, and reports to find the legal concept, the basis of argument, and comparative views. 1.3 literature review there have been some scientific writings that discuss legal aspects of employment in finland, in which most of them are carried out in a comparative approach. markus sädevirta, for example, provides a comparative study concerning the regulation of fixed-term employment contracts in the framework agreement on fixed-term work in three european union (eu) member states: finland, france and the united kingdom (uk). the study found that legislation restricting the use of successive fixed-term employment contracts was already in place in both finland and france, that requires no further implementation measures, while the uk had to introduce completely 4 for example, constitutional and statutory protection on the right to work and earn just remuneration in finland has ever been academically compared to the situation in tanzania. see, clement mashamba, “the promotion of basic employee rights in tanzania”, african human rights law journal 7, no. 2 (2007): 478. 4 new measures to implement the directive.5 bengt furåker, kristine nergaard, antti saloniemi also published an article that examines patterns of lock-in among employees in the labour markets in three nordic countries: finland, norway and sweden. the concept of ‘lock in’ illustrates employees who have considerable difficulty in finding an equally good job with some other employer6. a comparative survey has also ever been carried out to address job protection legislation, including job security for both temporary and permanent employment contracts.7 annika rosin publishes some comparative legal writings that assess the protection of the rights of trainees under finish labour law, particularly about the issue of their status, categorisation, traineeship contract, and wage.8 she also discusses how finnish labour council practice found trainees are in a subordinate relationship with the employer, regardless of the fact that they were performing work under the traineeship contract concluded between the educational institution and the employer; and how arguments established by finnish academic literature that arguing the work of trainees are performed in, directed and control by the educational institution, entails no employment relationship evolves because of that kind of subordination, whatever the facts that educational institution may use such work outcome.9 recently, rosin has finished her ph.d thesis on the same issue. she concluded her research by arguing that as trainees work in a subordinate relationship to the employer, they should, therefore, be regarded as ‘employees’ and that the practice of denying the ‘employee’-status of trainees is not rooted in the fundamental tests used to determine the personal scope of labour law but connected to an incorrect interpretation of labour law.10 teemu kautonen, et.al carried out a research that reviews empirical, conceptual and legal-policy approaches to involuntary self-employment with case study of finland, germany, and the uk.11 the legal aspect of this article assesses on how closely the 5 markus sädevirta, “regulation of fixed-term employment contracts in the eu, france, finland and the united kingdom: a comparative analysis,” international journal of comparative labour law and industrial relations 31, no. 2 (2015): 207–231. 6 bengt furåker, kristine nergaard, antti saloniemi, “lock-in patterns among employees: a nordic comparison” international journal of comparative labour law and industrial relations 30, no.4 (2014): 435–458. 7 jørgen svalund fafo, antti saloniemi, and patrik vulkan, “attitudes towards job protection legislation: comparing insiders and outsiders in finland, norway and sweden”, european journal of industrial relations 22, no. 4 (2016): 372-377, http:// doi/10.1177/0959680115626057 8 annika rosin and merle erikson, “a trainee’s right to a wage: the estonian situation with comparative insights from slovenia, the united states of america and finland”, european journal of social law, no. 3 (2014): 190. 9 annika rosin and merle muda, “labour law status of a trainee: the estonian situation with comparative insights from finland, france and the us”, european labour law journal 4, no.4(2013): 300. 10 annika rosin, “labour law protection of trainees” (ph.d thesis, faculty of law, university of turku, 2017), 46. 11 teemu kautonen, et.al, “involuntary self-employment’ as a public policy issue: a cross-country european review”, international journal of entrepreneurial behaviour & research 16, no. 2 (2010): 112. proper, weighty and extremely weighty cause to end an employment contract in finland emma-lotta mäkeläinen, sofia toivonen, and tiina räsänen udayana journal of law and culture vol. 02 no.1, january 2018 5 contractual arrangement between the self-employed worker and the principal resembles an employment relationship.12 sebastian sandvik wrote a thesis that investigating the economic effects of the trial periods for employment contracts and how the legislation can be designed to promote efficiency. the analysis of this academic research takes place within the framework of the finnish legal paradigm, which in turn requires a specification of the legal and economic meanings of the trial period in finland.13 paula koskinen, maria törnroos hanken, and roosa kohvakka deliberate the issue of challenges in finnish gender equality legislation with regards to the obligation of employers to promote gender equality.14 in this paper, authors conceive ‘institutionalised undervaluation’ to measure how the undervaluation of women’s work is embedded in the formal structure of wage determination such as collective agreements.15 2. result and discussion 2.1. termination of an employment contract 2.1.1. the concept of termination according to the employment contracts act chapter 7 section 1, the employer shall not terminate an indefinitely valid employment; proper and weighty reason. grounds for terminating the employment contract can be divided into two categories: grounds relating the employee´s person (individual) and financial and productionrelated grounds (collective). according to the employment contracts act 7:3.1 the financial and production-related grounds for termination refer to cases in which the employer may terminate the employment contract if the work offered has diminished substantially and permanently for financial or production-related reasons or for reasons arising from the reorganization of the employer’s operations. both the employee and the employer can give notice on the employment contract. however, only the employer must have legal grounds to do so. the employee does not have to present justification for giving notice to end the employment contract, but must follow the notice periods.16 employment contracts act 6:2–3 determine that the notice period ranges from 14 days to six months, depending on the length of the employment relationship. the notice period starts to elapse after notice is given, and after its expiry the employment relationship ends. the right to give a notice relates to employment contracts made for the time being. fixed-term employment contracts 12 ibid, 116. 13 sebastian sandvik, “the economic and social effects of trial periods for employment contracts”(master thesis, faculty of law university of helsinki, 2016), 1 . 14 paula koskinen, maria törnroos hanken, and roosa kohvakka, “the institutionalised undervaluation of women’s work: the case of local government sector collective agreements”, work, employment and society (june 2017): 5. http:// doi.org/ 10.1177/0950017017711100 15 ibid, 14. 16 markus äimälä and johan åström and mikko nyyssölä, op.cit, 155. 6 cannot be terminated upon notice, unless this has been specifically agreed when entering into the contract.17 during the notice period, the employment relationship continues as normal, unless the contracting parties agree otherwise.18 in accordance with employment contracts act chapter 6 section 4, if the employer terminates the employment relationship without observing the notice period, he shall pay the employee full pay for a period equivalent to the notice period as compensation. if the employee does not observe his notice period, he is bound by law to pay compensation to the employer.19 if the termination is deemed unlawful by a competent court, the employer will be ordered to pay compensation to the employee. according to employment contract act chapter 12 section 2, the exclusive compensation must be equivalent to the pay due owed for a minimum of three months or a maximum of 24 months. nevertheless, the maximum compensation is 30 month’s salary for employees enjoying special protection against dismissal. depending on the reason for terminating the employment relationship, the following factors must be taken into account in determining the amount of compensation: the estimated time without employment and estimated loss of earnings, the remaining period of a fixed-term employment contract, the duration of the employment relationship, the employee’s age and chances of finding employment corresponding to his or her vocation or education and training, the employer’s procedure in terminating the contract, any desire for termination originating in the employee, the general circumstances of the employee and the employer, and other comparable matters. when determining the amount of compensation, any compensation already awarded for the same act of dismissal by the virtue of yhdenvertaisuuslaki (the non-discrimination act, 1331/2014)20, must be taken into account. 2.1.2. improper causes for termination of the employment contract finnish employment contracts act does not contain any list of the grounds that may be considered proper and weighty reasons for the termination of the employment contract. however, the act contains several grounds of termination that cannot be regarded as proper and weighty reasons. according to employment contracts act chapter 7 section 2, at least the following cannot be regarded as 17 ibid; markus äimälä and mika kärkkäinen, työsopimuslaki (helsinki: alma talent oy, 2017), 381; harri hietala and tapani kahri and martti kairinen, työsopimuslaki käytännössä (helsinki: alma talent oy, 2016), 339. 18 ibid, 156; markus äimälä and mika kärkkäinen, op.cit, 383. 19 ibid, 158. 20 the provision on minimum compensation cannot be applied to termination due exclusively to changes in the employer’s operating conditions (production-related or financial reasons, or termination in connection with a reorganization procedure), or in cases where the employment contract has been cancelled on the basis of the trial period or with inadequate cancellation grounds while nevertheless fuelling the grounds for termination. cf. ministry of employment and the economy, “employment contracts act. the position of employers and employees under the employment contracts act”, 50. proper, weighty and extremely weighty cause to end an employment contract in finland emma-lotta mäkeläinen, sofia toivonen, and tiina räsänen udayana journal of law and culture vol. 02 no.1, january 2018 7 proper and weighty reasons: 1. illness, disability or accident affecting the employee, unless working capacity is substantially reduced thereby for such a long term as to render it unreasonable to require that the employer continues the contractual relationship; 2. participation of the employee in industrial action arranged by an employee organization or in accordance with the collective agreements act; 3. the employee’s political, religious or other opinions or participation in social activity or associations; 4. the employee’s resort to means use of legal protections available under the law available to employees. in addition to the above-mentioned grounds, there are also special rules for the assignment of an enterprise, bankruptcy, the death of an employer and the restructuring of enterprises. there are also special rules concerning an employee’s pregnancy, shop stewards and other elected representatives. according to employment contracts act chapter 7 section 9 pregnancy is not a legal ground for dismissal. if a pregnant woman or a person on family leave is dismissed, the legal presumption is that the employer has used the pregnancy or family leave as the real cause for the dismissal. the employer must prove that there is an acceptable legal cause other than the pregnancy, otherwise the dismissal is unlawful.21 2.2. proper and weighty causes for the termination of an employment contract 2.2.1. proper and weighty reasons in general according to the finnish employment contracts act, the employer must have a proper and weighty reason to give a notice of termination of the employment contract. when considering whether the individual or collective cause is a proper and weighty cause to terminate the employment contract, the general provision must be taken into account. according to employment contracts act (tsl 7:2.1), serious breach or neglect of obligations arising from the employment contract or the law and having essential impact on the employment relationship as well as such essential changes in the conditions necessary for working related to the employee’s person as render the employee no more able to cope with his or her work duties can be considered a proper and weighty reason for termination arising from the employee or related to the employee’s person.22 21 aapo surakka, op.cit, 196-197. 22 tsl 7:2.1. 8 the proper and weighty reason, inter alia, means that the reason for the termination cannot be discriminatory or against the employer’s responsibility to treat all employees equally, unless deviating from this is justified in view of the duties and position of the employees.23 a proper and weighty reason also means that the grounds for termination cannot be in breach of the duty of loyalty between the employee and employer.24 when grounds for the termination of an employment contract are under consideration, the overall circumstances and all the relevant facts of the case in question must be taken into account. the importance of the overall assessment is emphasized especially in difficult borderline cases.25 2.2.2. proper and weighty causes for the termination of an employment contract 2.2.2.1. proper and weighty reasons in general according to the employment contracts act chapter 3 section 1, the employees shall perform their work carefully, observing the instructions concerning their work performance issued by the employer, within their competence. in their activities, employees shall avoid everything that conflicts with the actions reasonably required of employees in their position. an employee’s duty to work can also be considered to be part of the employment contract.26 if the employee breaches his or her duty to work, he also breaches the contractual obligations that arise from the employment contract.27 instructions given by the employer cannot be considered as such essential obligations that the breach of these obligations would justify the termination of the employment. the essential obligations of the employment contract vary according to the nature of the employment relationship. furthermore, termination of the contract of employment requires that the employee has breached his or her obligations in a serious manner.28 one of the most common grounds that leads to the termination of employment contracts is the neglect of work obligations which can appear as a single omission of a duty or defective fulfilment of duties, carelessness or passivity i.e. inefficiency. the situations where the neglect of duty to work appears can be divided into two categories, 23 government proposal to parliament “he 157/2000 vp: government proposal for the contracts of employment act.” 96.cf. the supreme court of finland (kko) 2016:15. 24 ‘the duty of loyalty’ means a duty of the employment contracting parties to reasonably consider each other’s interests and expectations without unreasonably risking their own. cf. km 1969, 31. 25 government proposal to parliament ”he 157/2000, loc.cit. 26 cf. ollila dl 6/2017, 906. 27 government proposal to parliament ”he 157/2000, op.cit. 97. 28 the supreme court of finland (kko) 2016:62, 8. proper, weighty and extremely weighty cause to end an employment contract in finland emma-lotta mäkeläinen, sofia toivonen, and tiina räsänen udayana journal of law and culture vol. 02 no.1, january 2018 9 based on whether the neglect of duty is intentional or unintentional.29 additionally, taking care of personal matters (for example using an employer’s phone for personal calls) during work time can also be considered as neglecting the duty to work. the bigger the neglect of work obligations is and the more it causes damage to the employer, the more likely the omission will be considered a proper and weighty cause to terminate the contract of employment. 30 regarding this matter, the supreme court of finland has issued a judgment: the employee had been using the employer’s radio phone for his own personal matters for four and a half months, altogether for 13 hours. during the phone calls, the radio phone couldn’t have been used normally. due to his behaviour, the employee had caused damage to his employer, such as undue phone expenses and inhibiting the normal purpose for use. the inhibition of the use also led to a loss of income. the employer had a proper and weighty cause to terminate the contract of employment but not an extremely weighty cause to cancel the contract with immediate effects.31 2.2.2.2. unauthorized absence the employee’s primary obligation is to work, and being absent from work without a proper reason is a dereliction of this obligation. hence, being absent from work without a proper reason may result in the termination of the employment contract. absences that may result in the termination of the employment relationship include being late, leaving early or being absent the whole day.32 many professions require punctuality and even minor tardiness may constitute grounds for dismissal. the employer may require punctuality in all professions. if punctuality has been stressed, deviating from the set working hours may be considered substantial dereliction. how long or how often the repeated, unauthorized absence entitles the employer to terminate or cancel the employment contract depends on overall assessment which needs to be done case-by-case. generally, one short absence does not entitle the employer to end the employment contract.33 the following two case laws before the labour court (tt) of finland may describe this concern. the first case is regarding a train waitress who had been found sleeping in a sleeping cabin after a break and for that reason there was no breakfast service in the train. before this incident, the waitress had been given two written warnings 29 seppo koskinen ”työsuhdeturva”. edilex 2013, p. 29; seppo koskinen and kimmo nieminen and mika valkonen, työsuhteen päättäminen (lithuania: talentum media oy, 2012), 767. 30 seppo koskinen and kimmo nieminen and mika valkonen, op.cit, 778. 31 the supreme court of finland (kko) 1991:26. 32 markus äimälä and mika kärkkäinen, op cit, 491; markus äimälä and johan åström and mikko nyyssölä, op.cit, 161. 33 ibid. 10 in the previous six months because of her neglect of her duty to work. the employer had had a proper and weighty cause to terminate the contract of employment.34 the second case is about different situation. initially the employee had been scolded, and then six months later he had been given a warning due to inappropriate behaviour. two weeks after the warning had been given, the employee left the workplace without permission during working hours and his employment contract had been terminated after this incident. the employee’s behaviour was a proof of remissness towards his work obligations. the employer had had a proper and weighty cause to terminate the employment contract.35 on the other hand, if the employer has tacitly accepted longer lunch breaks etc., the employer cannot dismiss an individual worker who follows the common practice. if the employee is absent without presenting an acceptable reason for his conduct, the employment relationship can be terminated by notice or even summarily, depending on the severity of the case. in practice, the termination on grounds of absenteeism requires a prior warning to the employee. only if the dereliction is of such severity that the employer cannot reasonably be expected to continue the employment relationship, will it be established that a prior warning to the employee is not necessary.36 the supreme court of finland (kko) 1980 ii 117: the employee had left the workplace without permission, but this alone wasn’t regarded as a proper and weighty cause which would entitle the employer to terminate the employment contract. however, the employee had been given a written warning because of a similar behaviour three months earlier. when taking the overall circumstances into account, the employer had a proper and weighty reason to terminate the employment contract. labour court of finland (tt) 1987-34: an unauthorized absence which lasted for one day was not regarded as a proper and weighty cause to terminate the employment contract. the employer was ordered to pay compensation to the employee on the grounds of unfounded termination of the employment contract. however, the size of the compensation was reduced due to employee’s behaviour. 2.2.2.3. negligence employees must perform their work carefully, observing any instructions concerning performance issued by the employer within its competence (tsl 3:1). carelessness is the neglect of this obligation and may entitle the employer to terminate the employment relationship.37 negligence means the dereliction of work 34 labour court of finland (tt) 2004-7. 35 labour court of finland (tt) 2004-63. 36 markus äimälä and johan åström and mikko nyyssölä, op.cit, 161. 37 ibid, 162. proper, weighty and extremely weighty cause to end an employment contract in finland emma-lotta mäkeläinen, sofia toivone, and tiina räsänen udayana journal of law and culture vol. 02 no.1, january 2018 11 obligations is not intentional. in other words, negligence can be understood as the employee’s approach towards his or her work obligations. however, slight negligence is not regarded as an adequate reason to terminate the employment contract.38 in contrast if the negligence is manifest or clearly apparent, it can entitle the employer to terminate the employment contract.39 negligence is normally assessed in relation to other employees’ average work performance.40 the severity of the negligence can be assessed by taking into account factors such as the repetition of acts of dereliction, the special characteristics of the work duties, work circumstances, the effects of any reprehensible actions and the employee’s position in the organisation.41 additionally, termination usually requires a preceding warning.42 2.2.2.4. unprofessionalism the concept of professionalism is wide and ambiguous. the core of professionalism is that the employee is able to carry out the concrete duties that have been assigned to him.43 necessary ability might also require management of tools, particular work practices, management of materials, information and occupational safety requirements. additionally, personal characteristics, such as an ability to cooperate, can be seen as the part of the requirement of professionalism.44 according to the court decisions, in some cases, performing work without sufficient skill may constitute the grounds for termination. the employee can be terminated, if he is constantly unable to meet the set objectives.45 however, an unprofessional employee should firstly be transferred to another job that is more suitable for him.46 nevertheless, if the employee disagrees concerning the inadequacy of his professional qualifications and takes the matter before a decision of the court, the employer should have evidence proving employee’s unprofessionalism.47 38 seppo koskinen and kimmo nieminen and mika valkonen, op.cit, 88. 39 kari-pekka tiitinen and tarja kröger, työsopimusoikeus (helsinki: talentum 2012), 514; seppo koskinen and kimmo nieminen and mika valkonen, loc.cit. cf. the court of appeal of vaasa (vho) 24.3.2017 s 16/320, the labor court of finland (tt) 2005-11; 2005-65; 1992-37. 40 seppo koskinen and kimmo nieminen and mika valkonen, loc. cit. 41 ibid. 42 ibid, 77. 43 markus äimälä and mika kärkkäinen, op.cit, 498. 44 ibid. 45 the employer has the responsibility to establish the competency of the job applicant to do the work. the employer should establish that the employee is a skilled worker by examining his testimonials and education reports and by interviewing him. markus äimälä and johan åström and mikko nyyssölä, op.cit, 162. seppo koskinen. “harhaanjohtaminen työsopimusta tehtäessä”. edilex, (2005): 5; aki ollila. “työnhakijan tiedonantovelvollisuus” defensor legis, no. 1 (2017): 20; the court of appeal of turku (tho) 11.6.2003 s02/2032. markus äimälä and mika kärkkäinen, loc.cit. 46 markus äimälä and mika kärkkäinen, op.cit, 499. 47 martti kairinen et al. työoikeus (juva: wsoypro, 2006), 72; cf. also kari-pekka tiitinen and tarja kröger, op.cit, 339 400. cf. the labor court of finland (tt) 1992-99. 12 2.2.2.5. refusal to work refusal to work means that the employee refuses to complete certain duties or work at certain times and/or in certain places. the employee has the responsibility to complete the duties that arise from the employment contract.48 that means that the employee is not entitled to refuse to complete the duties he is required to perform under his employment contract and refusal usually constitutes the grounds for a dismissal. dismissing the employee may require that the employee has been given a warning about such conduct and its consequences. the employment relationship can be terminated immediately after the warning if the employee states that he is not going to perform the tasks directed to him.49 the employee is required to perform work described in the employment contract or in the collective agreement.50 the tasks can be described in detail or more generally. for instance, it can be agreed that the employee performs tasks as directed to him by the employer. the tasks the employee performs in reality influence the notion of the agreed tasks. if the tasks vary a great deal and the job description does not preclude certain tasks, the employer has extensive rights to order the employee to perform a wide variety of tasks.51 the supreme court of finland (kko 2010:60): the employee’s main duties included cleaning the gym. later, the employer had unilaterally assigned new duties to the employee that included cleaning in another building. the employee refused to complete the unilaterally assigned duties and the employment contract was terminated. because the new duties changed the terms of the employment contract significantly, the employer had no right to assign extra work under his power of supervision of work. thus, the employer had no proper cause to end the employment contract based on the refusal. if the employee has a reasonable ground for refusal, for example if the duties could expose the employee to danger, the employer has no right to end the employment.52 the ground for refusal can also be something other than a safety reason. another reasonable ground for refusal to complete the assigned duties is if the employer fails to pay the salary or that the new duties require the employee’s permission.53 however, the employer might be entitled to not to pay the salary for the time period where the employee has not had a sufficient ground for the refusal to work. this right can arise even though the employer does not have a sufficient ground to end the employment contract.54 48 seppo koskinen and kimmo nieminen and mika valkonen,op.cit, 80. 49 markus äimälä and johan åström and mikko nyyssölä, op.cit,162. 50 ibid; seppo koskinen and kimmo nieminen and mika valkonen, op.cit, 81. 51 ibid; kari-pekka tiitinen and tarja kröger, op.cit, 506. 52 seppo koskinen and kimmo nieminen and mika valkonen, op.cit, 83. 53 ibid, 84. 54 cf. the supreme court of finland (kko) 1983 ii 144. proper, weighty and extremely weighty cause to end an employment contract in finland emma-lotta mäkeläinen, sofia toivonen, and tiina räsänen udayana journal of law and culture vol. 02 no.1, january 2018 13 2.2.2.6. conduct contrary to instructions according to the employment contracts act chapter 3 section 1, the employee must perform his work by observing the instructions concerning performance issued by the employer within its competence. the employee neglects the instructions if he acts against the specific instructions or completes the duties incorrectly.55 according to the court decisions and legal literature, acting contrary to the employer’s directions may constitute grounds for dismissal. the situation is evaluated with reference to the clarity of the employer’s directions, the seriousness of the employee’s contrary conduct, the established or standard practices in the organisation, the repetitiveness of the employee’s action and whether the employee has received a warning for similar conduct before, etc.56 if the neglect or contrary conduct is minimal, there are no grounds for termination of the employment contract.57 if there has already been a long period of employment and the employee has not received any warnings and the negligence or contrary conduct is slight, there might not be a proper and weighty reason to terminate the employment contract. in situations where the employee acts against the instructions, it is normally required that a warning has been given and that the employee continues his actions that are contrary to those instructions before termination of the employment is possible. if the employee continues the actions against the instructions after the warning has been given, it is more likely the employer is entitled to end the employment.58 2.2.3. competing activity and business secrets 2.2.3.1. competing activity according to employment contracts act chapter 3 section 3, the employees shall not work for another party (ie company) or engage in such activity that would, taking the nature of the work and the individual employee’s position into account, cause manifest harm to their employer as a competing activity contrary to fair employment practices. during the term of employment, employees shall not embark on any action to prepare for competing activities which might be deemed unacceptable. employees actions are regarded as competitive if the actions are obviously against the established good practice and cause harm to the employer. for example, establishing a new company is regarded as a competing action. all competing activities of a self-employed entrepreneur are also prohibited during the employment59 and 55 seppo koskinen and kimmo nieminen and mika valkonen, 85. 56 markus äimälä and johan åström and mikko nyyssölä, op.cit, 162. 57 seppo koskinen, kimmo nieminen and mika valkonen, op.cit, 85-86. 58 ibid, 86. 59 harri hietala and keijo kaivanto, työsopimus ja johtajasopimus (helsinki: alma talent oy, 2017), 84. 14 this prohibition lasts the entire employment.60 however, the employee may work in several employment relationships simultaneously, but must not engage in any activity that competes with his employer while their employment relationship lasts.61 the breach of this prohibition might lead to termination or cancellation of the employment contract.62 the employee has an obligation to act loyally towards the employer, i.e. he must avoid actions that conflict with the benefit of the employer. because the damage to the employer must be obvious, merely the chance that the actions might harm the employer does not make the actions unlawful. whether the actions are against good practice is considered case-by-case.63 on the other hand, it is not required that the employer has actually experienced damage however, there must be a concrete danger of damage.64 in a case law, the supreme court considered that when the accountant started as a sleeping partner in another accounting company without telling to the employer, the actions were regarded as competing actions against good practice.65 it is clear that the employee is not entitled to use his working hours and the employer’s implements for making preparations for his own entrepreneurship. gaining customers, bidding for contracts and recruiting employees maybe considered as competing activities, even if no contracts have been made.66 in the legal literature, it has been argued that the employees in high positions can be held to more extensive obligations of loyalty, and their right to perform competing activities can be more restricted. the extent and nature of the employer’s business must also be taken into account. also, employment contracts act argued that the individual employee’s position may have influence. the employee may be liable for the damage that his competing activity has caused to the employer.67 also, as determined by the employment contracts act (tsl 3:3.3), an outside employer who hires an employee, knowing that the employee breaches his existing employment agreement with another company by virtue of signing a new employment agreement, maybe liable for damage to the first employer.68 60 markus äimälä and mika kärkkäinen, op.cit, 248. 61 markus äimälä and johan åström and mikko nyyssölä, op.cit, 163; government proposal to parliament ”he 157/2000, op.cit. 79. 62 government proposal to parliament ”he 157/2000, op.cit, 96. s. 80; the supreme court of finland (kko)1995:47 and 1990:37. 63 ibid. 79. 64 markus äimälä and mika kärkkäinen, op.cit, 249. 65 the supreme court of finland (kko) 1984 ii 131: 66 markus äimälä and johan åström and mikko nyyssölä, loc.cit; harri hietala and keijo kaivanto, loc.cit, 84. 67 ministry of employment and the economy, op.cit, 24; markus äimälä and mika kärkkäinen, loc.cit. 68 cf. government proposal to parliament ”he 157/2000, op.cit, 7. proper, weighty and extremely weighty cause to end an employment contract in finland emma-lotta mäkeläinen, sofia toivonen, and tiina räsänen udayana journal of law and culture vol. 02 no.1, january 2018 15 2.2.3.2. business and trade secrets under employment contracts act chapter 3 section 4, during the term of employment, the employee may neither utilize nor divulge to third parties the employer’s trade or business secrets. if the employee has obtained such information unlawfully, the prohibition continues after termination of the employment relationship. the liability for any loss incurred by the employer is extended not only to the employee divulging confidential information but also to the recipient of this information, if the latter knew or should have known that the employee had acted unlawfully in disclosing the information. rikoslaki (39/1889, criminal code of finland, rl) chapter 30 section 5 also includes provisions concerning violations of business secrets. the provision also covers the unlawful disclosure and utilization of business secrets. a person who, in order to obtain financial benefit for himself or herself or another, or to injure another, unlawfully discloses the business secret of another or unlawfully utilises such a business secret, shall be punished (rl 30:5). the actions must be carried out intentionally whereas according to employment contracts act, negligent actions might lead to a punishment. in addition to criminal code of finland and employment contracts act, laki sopimattomasta menettelystä elinkeinotoiminnassa (unfair business practices act, 1061/1978) includes regulation concerning the business and trade secrets. the acts do not include the specific content of business and trade secrets. according to the court decisions and legal literature, the confidential business and trade information may include information such as working methods, computer programs, output, formulas and customer registers. in determining the confidentiality of such information, the essential criterion is that the employer needs to keep the information confidential and that divulging it would cause harm to the enterprise. 69 in the government´s proposal concerning employment contracts act, the section has been clarified that the prohibition on divulging confidential business and trade information applies throughout the employment relationship.70 as long as the information is received lawfully, for instance during the work, the prohibition no longer applies after the end of the employment relationship, unless the employer and the employee make a non-disclosure agreement for the time after the termination of the employment relationship.71 however, if the employee, during the course of the employment relationship, has acquired or received confidential business and trade information unlawfully, the prohibition on divulging or utilizing such informa69 government proposal to parliament ”he 157/2000, op.cit, 80; ministry of employment and the economy, op.cit, 24-25. 70 ibid, 81; ministry of employment and the economy, op.cit, 25; report of committee of employment contract act” työsopimuslakikomitean mietintö 1969:a25”, 32. 71 ministry of employment and the economy, loc.cit. 16 tion remains valid even when the employment relationship ends, and will continue in force until the information can no longer be objectively regarded as confidential business and trade information from the point of view of the employer. 72 if the employee breaches the prohibition to utilize and divulge the business and trade secrets, it normally entitles the employer to terminate the employment agreement. an intentional breach might also justify the cancellation of the employment contract but if the action has been unintentional, a warning could be a sufficient sanction.73 2.2.4. use of intoxicants the abuse of intoxicants is one the most common grounds of employment termination.74 according to the court decisions and legal literature, if an employee is intoxicated at work or neglects his duties, the employer may be entitled to cancellation the employee’s employment agreement.75 if the employer in entitled to cancellation the contract, he is naturally also entitled to terminate the contract of employment because cancellation is more forceful action than termination. in addition to alcohol, drugs are also considered intoxicants.76 substance use often leads to other breaches, like unauthorized absences.77 however, in the legal literature, it has been argued that the employer should consider referring an employee with substance addiction to therapy, but this is not a formal requirement for terminating the employment relationship. on the other hand, if the employee is referred to therapy and the problems continue, grounds for dismissal exist.78 2.2.5. criminal activity and inappropriate behaviour if an employee commits a criminal offence towards the employer or coworker or the criminal activity occurred in the workplace, the employer usually has grounds for terminating the employment relationship.79 even minor offences may entitle the employer to terminate the employment relationship. in the court decisions, activities 72 government proposal to parliament ”he 157/2000, op.cit, 81; markus äimälä and mika kärkkäinen, op.cit, 262. 73 markus äimälä and mika kärkkäinen, op.cit, 534. 74 ibid, 508. 75 government proposal to parliament ”he 157/2000, op.cit, 109. 76 markus äimälä and mika kärkkäinen, loc.cit. in the earlier employment contracts act, the use of intoxicants or appearing intoxicated at the workplace were listed as grounds for summary termination of the employment relationship. although the new act contains no explicit reference to such conduct, the rule is still valid. the use of intoxicants usually entitles the employer to terminate the employment relationship either with or without notice. cf. markus äimälä and johan åström and mikko nyyssölä, loc.cit. 77 markus äimälä and mika kärkkäinen, op.cit, 509. 78 markus äimälä and johan åström and mikkonyyssölä, op.cit, 164; markus äimälä and mika kärkkäinen op.cit, 511-512. 79 ibid; markus äimälä and mika kärkkäinen, op.cit, 164, 524; seppo koskinen and kimmo nieminen and mika valkonen, op.cit, 146. proper, weighty and extremely weighty cause to end an employment contract in finland emma-lotta mäkeläinen, sofia toivonen, and tiina räsänen udayana journal of law and culture vol. 02 no.1, january 2018 17 such as pilferage, embezzlement and forgery have been considered to be grounds for termination, irrespective of the pecuniary advantages gained by the employee. the gravity of the crime can be highly relevant when choosing between summary termination and cancellation of the employment contract.80 however, if the offence has occurred outside work, the evaluation is not as straightforward. in the court decision, it has been argued that factors such as who the victim is and to what extent the offence is connected with the employee’s duties must be taken into account.81 ordinarily in these instances there is not a proper cause to terminate the employment contract. if the offence is serious and might lead to an unconditional sentence of imprisonment, the employer is normally entitled to end the employment.82 in addition to criminal offences, improper behaviour can be a proper and weighty cause to terminate the employment contract. improper behaviour may arise in many ways. the gravest cases are improper behaviour amounting to harassment.83 the more senior the positions of the employees, the more blameless conduct can be required from them, both within and outside the workplace.84 2.2.6. illness under employment contracts act chapter 7 section 2(1), an illness, disability or accident affecting the employee cannot be regarded as a proper and weighty ground to be used for terminating an employment relationship, unless the employee’s working capacity is substantially reduced thereby for such a long term as to render it unreasonable to require that the employer continue the contractual relationship. the employee’s working ability must be evaluated based on the demands his work sets for him, whereby it is evaluated whether the employee meets the requirements of the work or not.85 under employment contracts act the grounds for the termination exist if the employee’s working capacity is reduced substantially and for a long time.86 when considering the permanence of the reduced working capacity, the length of the illness before the termination and prediction of the forthcoming length of the illness must be taken into account.87 in the court decisions, a one-year period 80 ibid 81 markus äimälä and mika kärkkäinen, op.cit, 524. 82 ibid, 525. 83 ibid, 527. 84 ibid, 528. 85 government proposal to parliament ”he 157/2000 op.cit. 98; seppo koskinen and kimmo nieminen and mika valkonen, op.cit, 107-108. cf. the labour court of finland (tt) 2003-97. 86 ibid; seppo koskinen and kimmo nieminen and mika valkonen, op.cit, 107; leena alapuranen et.al, ”työkyvytön?”, edilex 2008, 223. 87 seppo koskinen and kimmo nieminen and mika valkonen, op.cit, 108. 18 has been used to establish permanence.88 thus, the incapacity to work does not have to be permanent. doctor’s statements weigh heavily and are very important when evaluating the effect of an illness or injury to the working ability as well as the possibilities of recovery.89 labour court (tt) 1985-62: illness that continued for ten months was regarded as permanent. labour court (tt) 2002-47: the employee had been on sick leave for fifteen months because of depression. the court considered that the illness is significant and permanent. the supreme court of finland (kko) 1991:2: even though the waiter contracted hiv, his capacity to work was not reduced due to the illness. however, prior to any action for termination the employer must consider whether there is an alternative solution such as reassigning the employee to other tasks.90 2.2.7. special job security as mentioned above, there are some cases in which the employee has special job security. this means that he cannot be given notice on the usual grounds. under employment contracts act chapter 7 section 9 pregnant employees and employees using their rights to maternity, special maternity, paternity, parental or child-care leave have special job security. this means that the employer must not terminate an employment contract on the basis of the employee’s pregnancy or because the employee is exercising his or her right to family leave. on request, the employee must present the employer with proof of pregnancy. however, a pregnant employee can be dismissed on lawful grounds.91 according to employment contracts act (tsl 7:9.2), if the employer dismisses a pregnant employee, the dismissal is deemed to be due to the pregnancy unless the employer can show that it is due to some other reason. as a result, the employer has an enhanced burden of proof when dismissing a pregnant employee. under employment contracts act chapter 7 section 9(1-2), the employee cannot be dismissed on grounds of using his or her right to family leave. again, the employer has the enhanced burden of proof: the dismissal is considered to result from the use of family leave, unless the employer can prove that it results from some other reason. 88 ibid; markus äimälä and mika kärkkäinen, op.cit, 511. cf. the labour court of finland (tt) 1984-56. leena alapuranen, op.cit, 230. 89 markus äimälä and mika kärkkäinen, loc.cit. 90 markus äimälä and mika kärkkäinen, op.cit, 517-518. 91 markus äimälä and johan åström and mikko nyyssölä, op.cit, 167. proper, weighty and extremely weighty cause to end an employment contract in finland emma-lotta mäkeläinen, sofia toivonen, and tiina räsänen udayana journal of law and culture vol. 02 no.1, january 2018 19 under laki maanpuolustusvelvollisuutta täyttävän työ ja virkasuhteen jatkumisesta (act on the continuation of contractual and public-service employment relationships of people fulfilling their national defence obligation, 305/2009) section 3, the employment relationship cannot be terminated because the employee carries out military or non-military service. further, the employment contract cannot be terminated during the service. employees, who have performed military or non-military service, also have special job security after they have returned to work. such employees may not be dismissed upon notice within three months from the day of return, unless the employer has given a prior notification of the termination at least two months before the day when the employment relationship ends.92 employees’ representatives also have protection against being given a notice (tsl 7:10). in finland, representatives are either shop stewards or elected representatives. in this context, a shop steward means a representative who has been chosen on the grounds of a collective agreement. the employees who don’t have a shop steward can elect a representative amongst themselves. also, some other employees’ representatives have similar protection against being given notice as the shop stewards and elected representatives. these are, inter alia, industrial safety delegates, co-operation representatives (regulated in the act on co-operation within undertakings) and a representative whose position is based on laki henkilöstön edustuksesta yritysten hallinnossa (act on personnel representation in the administration of undertakings, 725/1990). their special protection is not directly based on employment contracts act but on protection provisions regulated in other acts.93 according to employment contracts act chapter 7 section 2(3) employees who have neglected their duties arising from the employment relationship or committed a breach thereof shall not be given a notice of termination, however, before they have been warned and given a chance to amend their conduct. that means the employer has no legal right to terminate an employment contract on individual grounds before it has issued a notice to the employee. the purpose of the notice is to give the employee a possibility to amend his conduct.94 in the case of termination, the issuing of a warning to the employee or the omission of a warning is significant when considering whether the ground for termination is proper and weighty.95 however, according to employment contracts act chapter 7 section 2(5), there is no need for warning if the reason for giving notice is such a grave breach related to the employment relationship as to render it unreasonable to require that the employer continue the contractual relationship. 92 ibid,168. 93 markus äimälä and mika kärkkäinen, op.cit, 582. 94 government proposal to parliament ”he 157/2000, op.cit, 101. cf. seppo koskinen, “velvollisuus antaa varoitus työsopimuksen irtisanomisen edellytyksenä”. edilex, 1017. 95 seppo koskinen and kimmo nieminen and mika valkonen, työsuhteen päättäminen (lithuania: talentum media oy, 2012), 63. cf. the labor court of finland (tt) 2005-1; the court of appeal of helsinki (hho) 7.1.2004 s 02/2329; the court of appeal of turku (tho)11.6.2003 s 02/2032.1 20 furthermore, before the employer terminates an employment contract, the employer shall provide the employee with an opportunity to be heard concerning the grounds for the termination, in addition to which the employer shall find out whether it is possible to avoid giving notice by placing the employee in other work (tsl 7:2.4). however, this is not required if the reason for giving notice is such a grave breach related to the employment relationship as to render it unreasonable to require that the employer continue the contractual relationship (tsl 7:2.5). in these situations, the employer can cancel the employment relationship to end immediately. 2.9. cancellation of employment contract 2.9.1. the concept of cancellation an employment agreement binds both parties. terminating the contract before its ordinary date of expiration is legally possible if the other party accepts it.96 another possibility is immediate cancellation of the employment relationship, but according to the employment contracts act chapter 8 section 1 “the employer is only upon an extremely weighty cause entitled to cancel an employment contract with an immediate effect regardless of the applicable period of notice or the duration of the employment contract.” this means that the extremely weighty cause is a cause that may be deemed to exist in case when the employee commits a breach against, or neglects duties based on the employment contract or the law, and having an essential impact on the employment relationship in such a serious manner as to render it unreasonable to expect that the employer should continue the contractual relationship even for the period of notice.97 cancellation of the employment contract is much more severe than the previously described termination, meaning that the employment relationship is terminated with immediate effect and that the obligations arising from the employment relationship cease to exist as soon as the cancellation comes to the knowledge of the other party. from the employee’s perspective, a cancellation is severe because of its rapid effect. consequently, a cancellation is possible only when the behaviour of the employee has been extremely culpable. the breach of the employment relationship needs to be severe to constitute grounds for cancellation, i.e. so severe that it would be unreasonable to expect the employer to continue the employment relationship.98 cancellation of an employment contract requires that the other party is found to be in breach of the contract in a way that is deemed to be serious. according to 96 aapo, surakka, access to finnish law (helsinki: sanoma pro, 2012), 197. 97 because the precondition for the cancellation of an employment contract is that the other party has acted contrary to the contract, the employer is not entitled to cancel the employment contract on production-related or financial grounds. cf. ministry of employment and the economy, op.cit, 46. 98 government proposal to parliament ”he 157/2000 vp: government proposal for the contracts of employment act.”,29. proper, weighty and extremely weighty cause to end an employment contract in finland emma-lotta mäkeläinen, sofia toivonen, and tiina räsänen udayana journal of law and culture vol. 02 no.1, january 2018 21 employment contracts act, the employer is entitled to cancel an employment contract with immediate effect, regardless of the applicable period of notice or the duration of the employment contract, only upon an extremely weighty cause. thus, the employer may only cancel the employment agreement when the conditions for continuing the contract no longer exist because the employee has seriously breached or neglected its duties based on the employment contract or the law. in addition to the above, according to employment contracts act chapter 8 section 3, if the employee has been absent from work for a minimum of seven days without notifying the employer of a valid reason for the absence for this period, the employer is entitled to consider the employment contract cancelled from the date on which the absence began. likewise, if the employer is absent from the workplace for a minimum of seven days without notifying the employee of a valid reason for this absence, the employee shall be entitled to consider the employment contract cancelled. correspondingly, employment contract act (tsl 8:1.2) determines that the employee shall be entitled to terminate the employment contract with immediate effect if the employer commits a breach against or neglects his duties based under on the employment contract or the law and having essential which has such a serious impact on the employment relationship in such a serious manner as to render it unreasonable to expect that the employee should continue the contractual relationship even for the period of notice. in addition to the above, according to employment contracts act chapter 8 section 3, if the employee has been absent from work for a minimum of seven days without notifying the employer of a valid reason for the absence for this period, the employer is entitled to consider the employment contract cancelled from the date on which the absence began. likewise, if the employer is absent from the workplace for a minimum of seven days without notifying the employee of a valid reason for this absence, the employee shall be entitled to consider the employment contract cancelled. 2.9.2. extremely weighty causes for cancellation of an employment contract both employment agreements that are valid until further notice and fixedterm employment agreements can be cancelled. according to employment contracts act there must be an extremely weighty reason to cancel an employment contract. however, the act does not provide a list of the reasons that are adequate for cancellation and because of that, all situations must be solved separately. instead, the previously enacted employment contracts act (320/1970 and 141/1922) contained an example-list of grounds for cancellation.99 even though the list has been excised, the established 99 ibid, 29-30. 22 legal practice concerning the grounds of cancellation was not meant to be amended and those practices have continued.100 the causes for the cancellation are regulated in chapter 7 of employment contracts act and are closely linked to the grounds for termination of the employment contract.101 both termination and cancellation are based on an overall assessment of the situation.102 the grounds for termination and cancellation are similar but there is a gradation between them.103 the gradation means that the grounds for a cancellation must be heavier than the grounds which entitle the employer to terminate the employment contract. a similar conduct, but in a slighter form, might entitle the employer to terminate the contract, whereas the more severe behaviour may lead to the cancellation of the employment contract.104 in any case, the grounds for the cancellation must always be heavier than the grounds for the termination (cf. the extremely weighty cause and the proper and weighty reason).105 as mentioned above, the legally acceptable grounds for the immediate cancellation by the employer must be more persuasive than the legally acceptable grounds for simply giving a notice of the termination. the law expresses the idea as follows; there must be an especially persuasive reason. the reason could be an employee’s serious breach or gross negligence of his essential duties under the employment contract or the law. the circumstances must be so drastic that nobody would expect the employer to wait for the end of the notice period.106 the established legal practice should be referred to when the grounds for cancellation are being assessed.107 when evaluating the boundary between the grounds for the termination and cancellation, the basis is the content and severity of employee’s action or omission (a proper and weighty reason – extremely weighty reason).108 labour court (tt) 2005-44: the employer had cancelled the employment due to employee’s neglect of a work obligation. the employer had had a proper and weighty cause to terminate the employment contract but not an extremely weighty cause sufficient to cancel it. thus, the cancellation of the employment contract was unlawful. 100 ibid, 109; the supreme court of finland (kko) 2006:104 paragraphs 5-6; report of committee of employment contract act” työsopimuslakikomitean mietintö 2000:1”, 124. 101 ibid; harri hietala, tapani kahri and martti kairinen, op.cit, 480. 102 the supreme court of finland (kko) 2006:104 paragraph 8. 103 the supreme court of finland (kko) 2006:104 paragraph 11; the supreme court of finland (kko) 2012:89: paragraph 10; the supreme court of finland (kko) 2016:62 paragraph 7. 104 the supreme court of finland (kko) 2016:62 paragraph 7. cf. the supreme court of finland kko:2006:104 paragraph 11. 105 government proposal to parliament ”he 157/2000, ibid, 29. 106 markus äimälä and johan åström and mikko nyyssölä, op.cit, 198. 107 niklas bruun and andres von koskull, työoikeuden perusteet (helsinki: alma talent oy, 2012), 112. 108 jaana paanetoja, “työsopimuksen irtisanomis ja purkamisperusteiden rajankäyntiä”. defensor legis no. 4 (2014): 521. proper, weighty and extremely weighty cause to end an employment contract in finland emma-lotta mäkeläinen, sofia toivonen, and tiina räsänen udayana journal of law and culture vol. 02 no.1, january 2018 23 labour court (tt) 2013-166: the employee had been working under the influence of alcohol. the employer had the right to terminate (with notice) the employment without giving a warning but no right to cancel it (effective immediately). 3. conclusion according to finish employment contracts act, the termination of the employment contract requires a proper and weighty cause whereas the can cellation of the employment contract requires an extremely weighty cause. the meaning of this article was to analyse the grounds and circumstances that may lead to the termination (with notice) or cancellation (with immediate effects) of the employment contract. the grounds for termination and cancellation are similar but there is a gradation between them. that means the grounds for a cancellation must be heavier than the grounds which entitle the employer to terminate the employment contract. in the legal practice and legal literature, it has been argued that the proper and weighty reason may be for example a neglect of the work obligations, competing activity and violating of the business secrets, use of intoxicants, criminal activity and inappropriate behaviour and in some cases even illness. the final assessment whether the cause is proper and weighty or extremely weighty has to be done by taking the employer’s and the employee’s overall circumstances into account. when considering the overall circumstances concerning the cause of the termination or cancellation, for example the nature, length and severity of the breach, employee’s position and work experience as well as employee’s attitude towards the breach, the number of unfulfilled duties in relation to employee’s duties, the nature of the work and work circumstances, the nature of the company and normal work practices, along with the position of the employer and the previously received warning must all be taken into account.109 thus, every termination and cancellation of an employment contract is unique; the situations of the terminations and cancellations differ in accordance with the business sector, the individual and the enterprise concerned. for that reason it is not possible to define what is a proper and weighty cause or an extremely weighty cause to either terminate or cancel the employment contract. the grounds for the termination or cancellation can be found from the circumstances of a single case. hence, a ground that is sufficient in one case may not be sufficient in another case. 109 icf. seppo koskinen and kimmo nieminen and mika valkonen, työsuhteen päättäminen (lithuania: talentum media oy, 2012), 71; matti-juhani moilanen, sopimukset työsuhteen päättyessä (hämeenlinna: talentum media oy, 2010), 66-67; kari-pekka tiitinen and tarja kröger, op.cit, 506. 24 bibliography book bruun, niklas and von koskull. anders: työoikeuden perusteet. helsinki: alma talent oy, 2012. hietala, harri, tapani kahri, and martti kairinen. työsopimuslaki käytännössä. helsinki: alma talent oy, 2016. hietala, harri and keijo kaivanto. työsopimus ja johtajasopimus. helsinki: alma talent oy, 2017. kairinen, martti, et.al. työoikeus. juva: wsoypro, 2006. koskinen, seppo, kimmo nieminen, and mika valkonen. työsuhteen päättäminen. lithuania: talentum media oy, 2012. moilanen, juha-matti, sopimukset työsuhteen päättyessä. hämeenlinna: talentum media oy, 2010. surakka, aapo: access to finnish law. helsinki: sanoma pro, 2012. tiitinen, kari-pekka and tanja kröger. työsopimusoikeus. helsinki: talentum, 2012. äimälä, markus and kärkkäinen, mika. työsopimuslaki. helsinki: alma talent oy, 2017. äimälä, markus, johan åström, hannu rautiainen, and mikko nyyssölä. finnish labour law in practice. helsinki: alma talent oy, 2012. journal article alapuranen, leena et.al, ”työkyvytön?”. edilex 2008. svalund, jørgen, antti saloniemi, and patrik vulkan. “attitudes towards job protection legislation: comparing insiders and outsiders in finland, norway and sweden.” european journal of industrial relations 22, no. 4 (2016): 371390. https://doi.org/10.1177/0959680115626057 furåker, bengt, kristine nergaard, and antti saloniemi. “lock-in patterns among employees: a nordic comparison.” international journal of comparative labour law and industrial relations 30, no. 4 (2014): 435-458. proper, weighty and extremely weighty cause to end an employment contract in finland emma-lotta mäkeläinen, sofia toivonen and tiina räsänen udayana journal of law and culture vol. 02 no.1, january 2018 25 kautonen, teemu, simon down, friederike welter, pekka vainio, jenni palmroos, kai althoff, and susanne kolb. “involuntary self-employment” as a public policy issue: a cross-country european review.” international journal of entrepreneurial behavior & research 16, no. 2 (2010): 112-129. https://doi. org/10.1108/13552551011027002 koskinen sandberg, paula, maria törnroos, and roosa kohvakka. “the institutionalised undervaluation of women’s work: the case of local government sector collective agreements.” work, employment and society (2017): 1-19. https://doi.org/10.1177/0950017017711100 koskinen, seppo. “harhaanjohtaminen työsopimusta tehtäessä”, edilex, (2005): 2-14. koskinen, seppo. “the new work and new labour law–from the finnish perspective.” edilex, (2001): 2-103. koskinen, seppo. ”työsuhdeturva”. edilex 2013. koskinen, seppo. “velvollisuus antaa varoitus työsopimuksen irtisanomisen edellytyksenä”. defensor legis, no. 6 (2004): 1015-1047. mashamba, clement. “the promotion of basic employee rights in tanzania.” african human rights law journal 7, no. 2 (2007): 475-495. ollila, aki. “työnhakijan tiedonantovelvollisuus”, defensor legis, no. 1 (2017): 16-33. paanetoja, jaana. “työsopimuksen irtisanomisja purkamisperusteiden rajankäyntiä”, defensor legis, no. 4 (2014): 512-534. rosin, annika and merle erikson, “a trainee’s right to a wage: the estonian situation with comparative insights from slovenia, the united states of america and finland”, european journal of social law, no. 3 (2014). rosin, annika, and merle muda. “labour law status of a trainee: the estonian situation with comparative insights from finland, france and the us.” european labour law journal 4, no. 4 (2013): 292-312. https://doi. org/10.1177/201395251300400404 sädevirta, markus. “regulation of fixed-term employment contracts in the eu, france, finland and the united kingdom: a comparative analysis.” international journal of comparative labour law and industrial relations 31, no. 2 (2015): 207-231. 26 thesis or dissertation rosin, annika. “labour law protection of trainees”, ph.d thesis, faculty of law university of turku, 2017. sandvik, sebastian. “the economic and social effects of trial periods for employment contracts,” master thesis, faculty of law university of helsinki, 2016. legal document työehtosopimuslaki (collective agreements act, 1946/436) työsopimuslaki (employment contracts act, 55/2001) laki yhteistoiminnasta yrityksissä (act on co-operation within undertakings, 334/2007) työterveyshuoltolaki (occupational health act, 2001/1383) työturvallisuuslaki (occupational safety act, 738/2002) other document government proposal to parliament “he 157/2000 vp: government proposal for the contracts of employment act.” report of committee of employment contract act “työsopimuslakikomitean mietintö 1969:a 25.” report of committee of employment contract act ”työsopimuslakikomitean mietintö 2000:1.” ministry of employment and the economy, “employment contracts act. the position of employers and employees under the employment contracts act”, 2014. case law the supreme court of finland kko 1980 ii 117 kko 1983 ii 144 kko 1990:37 kko 1991:2 proper, weighty and extremely weighty cause to end an employment contract in finland emma-lotta mäkeläinen, sofia toivonen, and tiina räsänen udayana journal of law and culture vol. 02 no.1, january 2018 27 kko 1991:26 kko 1992:7 kko 1995:47 kko 2006:104 kko 2010:60 kko 2012:89 kko 2016:15 kko 2016:62 the court of appeal the court of appeal of turku 11.6.2003 s 02/2032 the court of appeal of helsinki 7.1.2004 s 02/2329 the court of appeal of vaasa 24.3.2017 s 16/320 the labour court of finland tt 1984-56 tt 1985-62 tt 1992-37 tt 2002-47 tt 2003-97 tt 2004-7 tt 2004-63 tt 2005-11 tt 2005-65 udayana journal of law and culture vol. 02 no.2, july 2018 115 protecting the village credit institution: should traditional communities adopt modern financial management practices? luh putu yeyen karista putri* pt. indo-ned consultancy, legal consultancy, bali, indonesia. eric gordon withnall** jude lawyers, darwin, australia abstract a lembaga perkreditan desa (village credit institution or lpd) is a type of financial institution that is associated with a balinese customary village. lpds face competing pressures to both maintain their traditional character and align themselves with national standards for financial management. this article establishes the hybrid legal character of lpds (under balinese customary law and indonesian national law) in order to analyse their evident shortcomings, being the vulnerability of some monitoring and protection systems to misappropriation. we rely on normative legal research methods, including statutory analysis and analysis of case studies. we examine the lpd regulations and balinese customary law, supplemented by interviews on issues of relevance. we conclude that the recognition of lpds under the law, given the fundamental basis of the lpd in the customary village, ought to be given primacy to their status under balinese customary law. however, the monitoring and protection systems of lpds must be improved and uniform standards must be enforced – otherwise, their customers will simply use other financial institutions. we also conclude that it is possible to improve management practices while respecting the autonomy of customary villages. therefore, we assert that properly implemented measures will make a direct intervention from government unnecessary. keywords: village credit institution; community-based financial institution; customary community in bali. how to cite (chicago-16th): karista putri, luh putu yeyen, and eric gordon withnall. “protecting the “village credit institution”: should traditional communities adopt modern financial management practices?” udayana journal of law and culture 2, no. 2 (2018): 115-139. https://doi.org/110.24843/ujlc.2018.v02.i02.p01. doi: https://doi.org/10.24843/ujlc.2018.v02.i02.p01 vol. 02, no. 2, july 2018, 115-139 1 * e-mail/corresponding author: putuyeyen22@gmail.com ** e-mail: eric.withnall@gmail.com 116 1. introduction 1.1. background the lembaga perkreditan desa (‘village credit institution’, or ‘lpd’) is a communitybased financial institution and charitable entity indigenous to traditional communities in bali province, indonesia. despite its small size and limited asset holdings, some lpds have successfully become an effective solution to the economic crises faced by individuals and local communities in bali.1 the primary objective of lpds, as they exist in bali, is to support the economic and social development of traditional communities in accordance with the traditional principles of tri hita karana.2 bali consists of at least 1,500 traditional communities who live in a certain territory, a customary village (known as desa pakraman),3 and 1,433 of them have their own lpd.4 given the role of the customary village in both the governance and regulation of lpds, differences between communities result in non-uniformity of the sector – in the same way that each lpd reflects its associated community, their standards fluctuate based on the level to which governance standards are applied and asserted by community leaders. despite the discrepancy in their regulations, all lpds carry out similar activities, such as: giving personal loans; collecting public funds in the form of savings; maintenance of common amenities; direct funding of cultural activities; and various welfare initiatives, as deemed necessary by the customary village. as the financial arm of the customary law village (which has a legal personality of its own), lpds fulfil a number of functions that are traditionally held (under western legal systems) to be within the remit of the state: as such, they form an integral part of de facto traditional governing authority that exists in bali’s pluralistic legal system. lpds are unusual, if not unique, in the degree to which they straddle two different systems of law. on one hand, they are an institution that is inseparable from the customary village, as the entity is recognised under inseparable from the customary village, as the entity is recognised under balinese customary law. thus, it reflects 1 carol warren, “adat in balinese discourse and practice,” in the revival of tradition in indonesian politics: the deployment of adat from colonialism to indigenism, ed. jamie s. davidson and david henley (oxford: routledge, 2007), 179. 2 see further in subsection 2.1.2. 3 hanna christine ndun, sarah suttor, and i gusti agung ayu dike widhiyaastuti, “does customary law discriminate balinese women’s inheritance rights?” udayana journal of law and culture 2, no. 1 (2018): 98, https://doi.org/10.24843/ujlc.2017.v02.i01.p05. 4 kabarnusa.com, “kekayaan lpd di bali capai 15,5 triliun”, april 29, 2017, https://www.kabarnusa.com/2017/04/kekayaan-lpd-di-bali-capai-rp155-triliun.html. protecting the “village credit institution”: should traditional communities adopt modern financial management practices? luh putu yeyen karista putri and eric gordon withnall udayana journal of law and culture vol. 02 no.2, july 2018 117 economic activities that are organized by a cultural-based institution.5 on the other hand, the national law of indonesia classifies them as a form of legal entity – and one distinct from micro-finance institutions (mfis). despite sharing traits with mfis, they are exempted from many of the regulatory requirements imposed on mfis.6 the apparent policy assessment by the authorities is that the regulatory stance on lpds is justified by their demonstrable role in increasing the wealth of customary village – not only in the purely economic sense but in socio-cultural aspects as well as local wisdom.7 in addition, the existence of lpds are regulated by local regulations enacted by provincial and regency or municipality governments in bali. the continued role of the lpd in balinese life is endangered. some state institutions have frequently questioned the security provided to customers who bank with lpds, taking into account that lpds do not participate in the indonesia deposit insurance corporation.8 the response has largely been one encouraging consumer prudence: for example, the central bank of indonesia has urged the establishment of an independent institution that is assigned to periodically monitor and audit the operations of all lpds in bali.9 the indonesia financial services authority occasionally issues statements reminding customers of the risks of lpds and suggesting that critical failure is possible: i.e. customers not being able to withdraw money.10 lpds have also been classed alongside mfis by a joint decree issued by the minister of finance, minister for domestic affairs, minister of co-operative and small and middle size-enterprises, and governor of the central bank of indonesia.11 representatives of bali’s lpds have almost unanimously rejected the controlling approach of the national government. through the assembly of balinese customary villages (majelis desa pakraman), a conference representing 1.423 communities, it was agreed to establish a so-called council of lpd (dewan lpd) that may have 5 a legal study that focuses on the link between the aspects of culture and economics in bali suggested that culture should be regarded as economic resources, in which customary villages in bali should play a role. according to this concept, lpd as an institution belongs to the customary village reflects both economics function and cultural symbolic. see salain, made suksma prijandhini devi, “perlindungan hukum terhadap kebudayaan bali sebagai sumber daya ekonomi pariwisata,”kertha patrika 39, no. 1 (2017): 4, 13. doi: https://doi.org/10.24843/kp.2017.v39.i01.p01 6 see further in section 2.1.1. 7 kontan, “bi bali desak pembentukan pengawasan lpd”, october 18, 2016, http://regional.kontan.co.id/news/bi-bali-desak-pembentukan-pengawasan-lpd. 8 lembaga penjamin simpanan, “establishment, status, and designated positions of idic,” lembaga penjamin simpanan, accessed may 1, 2018, http://www.lps.go.id/en/web/guest/bentuk-status. 9 kontan, op. cit. 10 indonesia satu, “ojk ingatkan lpd bali yang gagal bayar uang nasabah”.co, august 24, 2016, http://indonesiasatu.co/detail/ojk-ingatkan-lpd-bali-yang-gagal-bayar-uang-nasabah. 11 joint decree by minister of finance, minister for domestic affairs, minister of co-operative and small and middle sizeenterprises, and governor of central bank of indonesia no: 351.1/kmk.010/2009; no: 900-639a tahun 2009; no: 01/skb/m.kukm/ix/2009; no: 11/43a/kep.gbi/2009 concerning strategy to develop micro finance institution, para 1. 118 a function in setting policy and standards that resembles that of the central bank of indonesia.12 in the meantime, it cannot be denied that lpds (in many cases) are currently facing challenges regarding customer satisfaction, as is reflected by customer surveys, complaints, and behaviour that indicates loyalty to their lpd.13 the high rate of economic growth in bali has affected the success of lpds, with a number of them now holding more assets and capital than local mfis. in response to this success, the provincial government of bali has enacted particular regulations to control the operations of lpds: particularly by regulating their management practices, monitoring requirements, and the legal rights of lpd customers. however, the strong influence of customary law in the management and operation of lpds means that a number of functions have been duplicated (for example the monitoring and reporting requirements). as a result, the increasing influence of state law in the control of lpds is challenging their status as traditional institutions that act as an extension, and the financial embodiment, of the community – a role they have held until now. 1.2. purpose of research this article offers both legal and cultural perspectives on the status of lpd under the national law of indonesia and the customary law of bali. specifically, from an economic perspective to law, it will critically analyse institutional responses to customer protection issues, and it will particularly examine the monitoring and protection mechanisms used by these institutions. regarding the monitoring mechanism, this paper will also address shortfalls in agencies that have the statutory responsibility to supervise the operation of lpds, including the ways they address consumer risk. 1.3. method and structure as part of our legal research, this study incorporates published indonesian laws that can be obtained from national databases. these include act no. 1 year 2013 regarding micro-finance institutions and local regulation of bali province no. 3 year 2017 concerning lpd (‘lpd regulations’), and governor’s regulation of bali no. 44 year 2017 (‘the implementing rules’). this article also looks at how customary law existed in customary villages in bali known as awig-awig or perarem. 12 aa seri kusniarti, “dewan lpd seperti bank indonesia”, tribun bali, october 23, 2015, http://bali.tribunnews.com/2015/10/23/dewan-lpd-seperti-bank-indonesia. 13 gede putu agus jana susila, “pengukuran kinerja lembaga perkreditan desa (lpd) kecamatan susut dengan analisis balanced scorecard,” jurnal ilmu sosial dan humaniora 5, no.2 (october 2016): 813. https://doi.org/10.23887/jish-undiksha.v5i2.8564. protecting the “village credit institution”: should traditional communities adopt modern financial management practices? luh putu yeyen karista putri and eric gordon withnall udayana journal of law and culture vol. 02 no.2, july 2018 119 a case study has been made, focussing on the lpd associated with desa adat pecatu. this institution is recognised as one of the leading lpds in bali based on the size of their asset holdings and their successful management of those assets. a few years ago, lpd pecatu was rewarded as being the most outstanding lpd in the region of badung, bali, in the category of institutions holding assets valued at over indonesian rupiah (idr) 1 billion.14 their success in the role suggests that it is important to examine the rules and policies that are implemented by similar lpds, particularly regarding their monitoring and protection systems so that other lpds in bali can learn from it. in addition, our interviews with chief and senior staff of the institution have allowed us to collect data related to the implementation of these monitoring and protection systems. section 2.1. of this article will provide analysis on the legal status of lpd under balinese customary law and national law. section 2.2 will deal with the issue of the monitoring system of lpds, while section 2.3 will discuss the protection systems implemented by lpds. 1.4. literature review individual lpds may not appear significant from a national perspective, given their relative size and asset holdings. however, the concept of a community-based financial institution can provide a boost to economic development in developing regions. lpds and other small-or micro-finance institutions collectively hold an important role in alleviating economic upheaval (which continues in the wake of the global economic crisis).15 their social focus allows them to maintain the stability of the economy at a grassroots level. microfinance can be used as an instrument to reduce poverty since it gives access to financial services for members of society which are excluded from the formal banking sector.16 ending poverty is one of the outcomes (goal 1) covered in the sustainable development goals (sdgs) promoted by the united nations.17 one of the strategies promoted by the un to end poverty is to ensure that everyone, including the poor and vulnerable, has equal rights to economic resources. they must have access to basic services, including access to finance (including ‘microfinance’).18 this is reflected by 14 “badung serahkan hadiah untuk 12 lpd berprestasi”, december 12, 2014,https://www.badungkab.go.id/index.php/baca-berita/857/badung-serahkan-hadiah-untuk-12-lpd-berprestasi. 15 carol warren, loc.cit. 16 umakanth varottil, “microfinance and the corporate governance conundrum,” berkeley business law journal 9, no. 1 (2012): 244. 17 “sustainable development goals,” united nation, accessed may 28, 2018, https://www.un.org/ sustainabledevelopment/sustainable-development-goals/. 18 un general assembly, “transforming our world: the 2030 agenda for sustainable development”, 21 october 2015, a/res/70/1, available at: http://www.refworld.org/docid/57b6e3e44.html, goal 1, para. 1.4. 120 the promotion of microfinance within the asean socio-cultural community, where it has been held to promote human capital development, economic self-reliance and sustainable livelihoods, especially among the poor.19 australia, indonesia’s immediate neighbour, permits analogous programs to the first nations australian credit union and first nations foundation program which provide aboriginal and torres strait islander people access to culturally appropriate financial products and services.20 thus, it becomes relevant to address the issues faced by small size or traditional financial institutions (lpd) and their role in the alleviation of poverty. there are many studies concerning lpds. sukandia conducted research on the legal status of lpds.21 this research concludes that the lpd is an essential part of balinese customary village, and therefore its recognition under indonesian law is said to be the same as the recognition of the customary village itself. sadiartha carried out qualitative research22 that conceptualized the lpd as a superior model for traditional financial institutions and acknowledged their role in supporting the economic development of the people of bali.23 this research concludes that lpds can develop into formidable financial institutions due to their autonomy and that their focus on local issues is related to their reliance on local regulations and awig-awig, rather than national law and policy, as their primary guidance.24 it also demonstrates that lpds are capable of implementing modern banking management principles (i.e. management functions, the ‘5c’ principles (character, capacity, capital, collateral, and condition of the economy) to anticipate the likelihood of bad loans,25 and innovative lpd products in alignment with the local practice of hindu philosophy, i.e. prosperity under tri hita karana).26 a review of this literature indicates that lpds are capable of operating prudently without compromising their traditional and communal character. their grassroots nature arguably guides their financial management as well as traditional banks (in ideal circumstances).27 19 asean socio-cultural community blueprint 2025, p. 8, available at: http://asean.org/ storage/2016/01/ascc-blueprint-2025.pdf 20 ingrid burkett and genevieve sheehan, “from the margins to the mainstream: the challenges for microfinance in australia,” fitzroy, australia: brotherhood of st laurence (2009), 39. 21 i nyoman sukandia, “kedudukan hukum dan fungsi lembaga perkreditan desa (lpd) sebagai lembaga perekonomian komunitas dalam masyarakat hukum adat di bali,” (phd. diss., universitas brawijaya, 2012), 7. 22 anak agung ngurah gede sadiartha, “lembaga perkreditan desa sebagai penopang ke-ajegan budaya ekonomi masyarakat bali,” jurnal kajian bali 7, no.2 (2017): 7. 23 ibid, 4-5. 24 ibid, 15. 25 ibid, 10. 26 ibid, 11 27 ibid, 15. protecting the “village credit institution”: should traditional communities adopt modern financial management practices? luh putu yeyen karista putri and eric gordon withnall udayana journal of law and culture vol. 02 no.2, july 2018 121 a review of the governance practices of lpd seen from the perspective of local cultural values was performed by ketut sonya adnyani. she conducted a qualitative research at lpd pecatu by doing interviews with 5 informants at corporate level, observations, and documentations.28 the study concludes that good governance practices of lpd pecatu is due to leadership at the corporate level, such as the head of lpd pecatu, supervisory body, and chief of the desa adat, who are able to run the governance administration based on cultural values, especially the teachings of hinduism, the so-called catur purusa artha.29 research concerning small size or local financial institutions is not only conducted in indonesia. howell and wilson conducted a research concerning the problem of financial exclusion in australia.30 the writers underscore the importance of mfis in providing loans to community organisations, low-income households, and small-scale businesses or entrepreneurs.31 davis conducted a study concerning the microfinance legal framework. this research concluded that mfis can provide financial services to segments of the population who are ordinarily excluded from the mainstream banking sector in developing countries (provided sound legal frameworks for microfinance are established).32 makuyana conducted research concerning certain aspects of the new microfinance laws in zimbabwe.33 the research concluded that the new microfinance laws in zimbabwe can be classified as socially progressive legislation because they prioritize the rights of the consumer.34 another example is the study concerning financial performance of microfinance institutions in cameroon, conducted by ofeh and jeanne.35 the research found that mfis played an important role during the global economic crisis. however, the research suggested that mfis in cameroon need to improve their management policies and also reduce operating costs and credit risk management.36 28 ketut sonya adnyani, “praktik tata kelola dalam perspektif nilai budaya lokal pada lembaga perkreditan desa (lpd)” (thesis, magister of accounting, universitas gadjah mada, 2017), xiii 29 ibid, 82-83. 30 nicola howell and therese wilson, “access to consumer credit: the problem of financial exclusion in australia and the current regulatory framework,” macquarie law journal 5, no. 7 (2005):134.. 31 ibid, 221. 32 ian davis, “rural banking: designing an effective legal framework for microfinance,” journal of business, entrepreneurship and the law 2, no.2 (2009): 423. 33 tsanangurai makuyana, “some aspects of the new microfinance law in zimbabwe,” mediterranean journal of social sciences 8, no. 3 (may 2017), 209. 34 ibid, 216; see further section 16 (a) (c) of the 2013 micro finance act of zimbabwe. 35 moses a. ofeh and zangue ngueku jeanne, “financial performance of microfinance institutions in cameroon: case of camccul ltd.” international journal of economics and finance 9, no. 4 (2017): 209. 36 ibid. 122 2. result and analysis 2.1. legal status and institutional arrangement of lpds 2.1.1. how indonesian national law regulates lpds? the recognition of balinese customary villages predates the independence of indonesia. since the colonial period, customary villages (along with official villages or ‘desa dinas’) have formed part of a dualistic model of local governance in bali.37 the recognition of customary villages in indonesia is guaranteed by article 18b (2) of the indonesian constitution,38 which stipulates that the state will ‘respect and recognise’ customary law (or adat) to the extent that it does not contradict with legislation.39 furthermore, article 28i (3) stipulates that the cultural identity and rights of traditional communities are to be respected, along with their right tocontrol their development. similar provisions can also be found in article 6 (2) of act no. 39 year 1999 concerning human rights. traditional communities and their rights are also mentioned in several national statutes, including inter alia act no. 5 year 1960 concerning agraria (‘the agrarian law’), act no. 31 year 2004 concerning fisheries, and act no. 6 year 2014 concerning village (‘act no. 6/2014’). unlike the other national laws, act no. 6/2014 does not only mention or grants recognition but also regulates the rights and obligations, as well as the institutional arrangements, of customary villages. the recognition of customary villages is also reaffirmed in several court decisions. the constitutional court of indonesia in the decision no.35/puu-x/2012 ruled that the customary village is recognised based on article 18b (2) of the constitution and thus it is entitled to owned a certain territory, including the forest.40 the court of appeal of sumatera utara is also confirmed the recognition of customary village along with its rights, including property rights41. as an institution owned by balinese customary village, it could be argued that the existence of lpd itself is implicitly assured by article 18b (2) of the indonesian constitution.42 as the lpd is an essential component of the customary village structure, its specific recognition under indonesian law is said to be the same as the customary village itself.43 the status of the lpd is officially recognised in act no. 1 year 2013 concerning micro finance institutions – however, as stipulated in article 39 (3) of 37 carol warren, op.cit, 170. 38 undang-undang dasar negara republik indonesia tahun 1945 [the 1945 constitution of the republic of indonesia]; art.18b (2). 39 ibid. 40 decision of the constitutional court of indonesia no. 35/puu-x/2012, 179. 41 decision of the court of appeal of sumatera utara no. 16/pdt/2011/pt.mdn, 5-6. 42 constitution of the republic of indonesia 1945; article 18b (2). 43 i nyoman sukandia, op.cit, 7. protecting the “village credit institution”: should traditional communities adopt modern financial management practices? luh putu yeyen karista putri and eric gordon withnall udayana journal of law and culture vol. 02 no.2, july 2018 123 that act, lpds are recognised as being governed based on customary law, and thus lpds are not subject to the rules stipulated in that act.44 in other words, lpds are not classified as mfis and are exempted from the mfi regulatory regime. government at national level respects the existence of the customary village by giving recognition instead of making regulations and forcing the customary village to comply with it. however, the government at the provincial level went a step further by enacting the lpd regulations and the implementing rules in 2017. these regulations codified common rules on the operation of lpds in balinese customary law (awig-awig or perarem). lpd regulations do not only provide common customary rules, but also stipulate several new provisions. these include the requirement for the establishment and capital of lpds, a monitoring, and protection system, administrative and criminal sanction. 2.1.2. how balinese customary law regulates lpds? the rules governing lpds come from a number of sources, which can be broadly categorized as customary law and state (national) law. since the beginning of their existence, customary law has played a dominant role in the governance of lpds. the customary law of bali is a complex set of normative rules, both written and unwritten. they are strongly influenced by traditional philosophies and principles, the most prominent among these being tri hita karana, which roughly translates as the three aspects of harmony. this concept divides the aspects of balinese life into harmony with god (parahyangan), harmony with others (pawongan), and harmony with the environment (palemahan), and compels balinese to balance the three.45 this concept has existed long before the proliferation of corporate social responsibility (csr)46 outside of the west. while debate exists around mandatory rules versus voluntary guidelines for csr by foreign companies operating in indonesia,47 44 see also ni made devi jayanthi, “status dan kedudukan hukum lembaga perkreditan desa (lpd) terkait pengikatan jaminan dengan berlakunya undang-undang nomor 1 tahun 2013 tentang lembaga keuangan mikro” (thesis, magister of notary, postgraduate program, universitas udayana, 2016), vii. 45 tjokorda raka dherana, masyarakat desa dan awig-awig dalam struktur pemerintahan bali [the village people and awig-awig in government structure bali], denpasar, bali: pt. upada literature (1995), 133. 46 generally, csr is perceived as the integration of economic consideration and environmental and social imperatives. the economic consideration is related to traditional business focus namely to gain profit. economic consideration is related to several issues, i.e. corporate governance, anti-corruption, etc. environmental issues are usually linked with sustainability, as well as some social issues such as human rights, labour, and local community: see michael kerr, richard janda, and chip pitts, corporate social responsibility: a legal analysis (markham, ontarion: lexisnexis, 2009), 9. 47 ibid, 241. the debate concerning mandatory and voluntary csr is discussed in decision of the constitutional court of indonesia no. 53/puu-vi/2008. 104-105. the verdict which decided by majority vote (6 out of 9 judges ruled that csr within the context of article 74 of act no. 40 year 2007 concerning corporation is obligatory for every corporation who engage in natural resources business. however, there are 3 judges who gave a joint dissenting opinion. according to their dissenting opinion, csr is a commitment and not a legal obligation and thus csr has a voluntary nature. 124 lpds build their core policies around tri hita karana, which is considered by balinese people to be a holistic source of normative values far more comprehensive than the ethics underpinning csr. in bali, codified customary rules (adat) are known as awig-awig or pararem,48 and these rule-sets are made both at the pakraman level or in sub-groups known as banjar adat:49 residents decide these rules either through a general assembly of eligible voters or with their consent, by an elected ad-hoc committee.50 as a result, awig-awig and perarem differ from village to village, and no uniform arrangements for lpd governance exist so far as pure adat is concerned. 2.1.3. financial products offered by lpd as other financial institutions, lpds offers typical financial services such as loans and savings. before lpd regulations was created in 2002, lpd carried out those activities based on the customary law (awig-awig or perarem) which made by the customary village. nowadays, lpds have a solid legal basis for their performance under article 7 (1) of the lpd regulations. this article limits the valid business operations of lpds to the following fields: 1. receive/collect funds from members of a customary village in the form of savings and deposits; 2. provide loans to the members of a customary village and to the customary village itself; and 3. provide loans to a member of other customary villages only if there is a co-operation agreement between the customary villages. nevertheless, some lpds develop a wide variety of service to the customer. for instance, lpd desa adat pecatu offers several products, such as saving plus (tabungan ida ngaben),51 deposit plus (sibermas),52 and collateral free-loan (kredit 48 wayan p. windia and ketut sudantra, hukum adat bali [bali customary law], denpasar: institute for documentation and publication law faculty udayana university (2006), 6-7.see for example i gusti agung mas rwa jayantiari, “eksistensi tanah adat di bali dan problematika hukum dalam pengembangan investasi,” kertha patrika 39, no. 2 (2017): 117, doi: https://doi.org/10.24843/kp.2017.v39.i02.p03. 49 wayan p. windia, danda pacamil; catatan populer istilah hukum adat bali [note of popular terms of balinese customary law], denpasar: upada literature (2004), 1-2. banjar adat is groups of people who are part of pakraman having a very strong bond within a certain territorial unit, led by a person or group of persons elected by the council members. 50 ibid, 3. 51 almost all members of the pecatu customary village choose this product in order to fund a traditional ceremony (ngaben). 52 sibermas stands for simpanan bersama masyarakat (similar to ‘time deposit’). firstly, the customer and lpd have to agree on the maturity term (the length or period of the deposit). the customers cannot withdraw their funds before the date of maturity. by choosing this product, customer can get higher interest rate. protecting the “village credit institution”: should traditional communities adopt modern financial management practices? luh putu yeyen karista putri and eric gordon withnall udayana journal of law and culture vol. 02 no.2, july 2018 125 tanpa agunan or ‘kta’).53 products offered by lpds have a socio-cultural dimension compared with those offered by other financial institutions such as banks. for instance, the saving plus which does not only serve as an ordinary saving account. in case of demise, the customer who has a saving plus account will get financial support from lpd pecatu to fund the ngaben ceremony (balinese traditional funeral ceremony).54 2.1.4. customers of lpd since an lpd is owned by a customary village, it has been widely recognised that financial activities can only be exercised within the limit of that village. this basic rule existed in balinese customary law before lpd regulations. however, in practice, many lpds expanded their financial activities by providing loans to outsiders. this practice became a serious issue when the government of bali enacted lpd regulations in 2002, in which article 7 of that regulation stipulates clearly that lpds are only allowed to provide loans to members of the customary village. such provision was amended in 2017 after complaints were received from balinese lpd managers. the 2017 lpd regulations provide a breakthrough adjustment under article 7 (1) c where lpds are allowed to give a loan to other members of the customary village. however, lpds who want to lend money to outsiders should make a co-operation agreement which complies with the requirements set forth in article 6 of the implementing rules. pursuant to that article, the co-operation agreement must provide for: the terms and conditions for giving loan to a members of other customary villages; right and obligation of each customary village; and dispute settlement provision. this provision gives a more flexible framework for lpds to expand their activities beyond the remit of the territory of the village community. lending money to outsiders is an exception of the general rule stipulated under article 3 of the regulations. pursuant that article, village credit institution carries out its financial activities within the territory of that particular customary village and for the benefit of the member of such customary village. in addition, according to article 4 (2) of the regulations, each customary village can only have one lpd. this limitation was created to ensure that each lpd was focusing on the development of that particular customary village instead of conducting fully commercial activities and competing with other lpds and financial institutions. 2.2. the monitoring system of lpd the employee’s primary obligation is to work, and being absent from work with managers have dominant control over the assets and daily operation of their lpd. 53 kta is a short term loan with low interest that only available for members of pecatu customary village. the maximum amount that can be borrowed is indonesian rupiah (idr) 20 billion 54 lpd desa adat pecatu, “produk unggulan kami,” accessed may 28, 2018, https://lpdpecatu.or.id/lpd_pecatu/. 126 furthermore, management possess a relatively high degree of autonomy in creating policy as lpds are not subject to the standard national regulations, i.e. the mfi or general banking rules.55 deficiency in the monitoring systems of lpds may expose tendencies towards misconduct or abuse within lpds management. for example, in 2011, the bali post reported that in karangasem regency, about 15 per cent of the region’s lpds had collapsed for reasons of non-performing loans or mismanagement.56 in addition, antara bali reported in 2013 that 42 lpds in tabanan regency were facing bank ruptcy due to mismanagement, with managers and staff facing a criminal investigation.57 in 2014, the bali post reported that 30 lpds in buleleng regency had ceased most of their activities, with 15 failing to file reports with the institute for the empowerment of lpd (‘lembaga pemberdayaan lpd’ or lplpd) in 2013.58 even recently, there have been several lpd managers who were prosecuted for mismanagement and/or corruption. for instance, lpd suwat, gianyar, was referred by its pakraman to the gianyar district police over alleged embezzlement of funds with total losses estimated as exceeding idr one billion.59 in addition, the court of denpasar found that the head of lpd sinabun (in buleleng) was guilty of corruption and embezzling client funds.60 these continuing cases of widespread maladministration suggest that the monitoring systems of the management of lpds need to be improved. 2.2.1. internal supervision although there are no uniform customary rules concerning lpds, some general structural themes are widely observed. generally speaking, the monitoring of lpds is conducted at the village level through the peak traditional council of the village, known as paruman (the meeting). the bendesa (or ‘chief’) of the customary village also acts in a supervisory role and may give directions as to the operation of the lpd if deemed necessary. in cases of negligence or misconduct, the bendesa will carry out the appropriate sanctions as determined by the paruman. 55 see subsection 2.1.1. 56 magister manajemen universitas udayana, “15 persen lpd di karangasem bermasalah,” august 24, 2011, https://sites.google.com/a/mmunud.com/dosen/bali/15-persen-lpd-di-karangasembermasalah/pesantanpajudul. 57 the leader of lpd belaluan, kecamatan sukawati, gianyar, was found guilty for corruption, see decision of district court of denpasar no. 34/pid.sus-tpk/2014/pndps tahun 2015;see also “42 lpd terancam pailit,” accessed 2 december 2015 http://www.antarabali.com/print/36456/42-lpd-terancam-pailit. 58 bali post, march 18, 2014, the board lpd troubled, accessed 3 december 2015, http://balipost. com/read/headline/2014/03/18/7316/pengurus-lpd-bermasalah-dipanggil.html. 59 bali post, august 20, 2015, case problem lpd suwat, party down lplpd had hand, accessed on 3 december 2015, http://balipost.com/read/kriminal-dan-hukum/2015/08/20/40032/soal-kasus-lpdsuwat-pihak-lpdp-sempat-turun-tangan.html;see decision of district court of denpasar no. 5/pid.sus. tpk /2017/pn.dps:the court ruled that the cashier of lpd suwat, gianyar was found guilty for corruption. 60 decision of district court of denpasar no. 36 /pid.sus-tpk/2015/pndpstahun 2016. protecting the “village credit institution”: should traditional communities adopt modern financial management practices? luh putu yeyen karista putri and eric gordon withnall udayana journal of law and culture vol. 02 no.2, july 2018 127 as of 2002, all lpds in bali are, to a limited extent, uniformly regulated at the provincial level. the regulation governing lpd has changed several times. the newest regulation is the 2017 lpd regulations. article 10 of the regulation requires all lpds to maintain a management board and a supervisory board composed of the bendesa and other trustees. the regulations also require two independent sources of monitoring and supervision: internal and external. article 1 (11) mandates the formation of an internal supervision committee that reports to the customary village and is composed of members of the community. the internal supervision regulated under the regulations are similar to the supervision rules that generally recognised in balinese customary law. in other words, the rules on supervision reflect best practice. 2.2.2. external supervision besides the internal supervision, lpd regulations requires external supervision of lpds. the obligation to perform external supervision is mandated to lplpd, an institution created by the provincial authority.61 the lplpd is financially supported by the “empowerment fee”. every lpd should contribute to the empowerment fee by depositing 5 per cent of its net profits.62 as well as acting in a guidance and development role, the lplpd is empowered to carry out certain regulatory and supervisory roles. the rules on lpd supervision further enhanced in the 2017 implementing rules. according to article 17 of the regulations and article 30 of the implementing rules, the lpd board must deliver monthly, quarterly and annual report. these reports will be addressed to the bendesa via the internal supervisory board. in addition, lpd management board also has to deliver these reports to lplpd (external reporting). lplpd will distribute the reports to the governor, regent or mayor. before 2017, lplpd has a powerful instrument to ensure the compliance of lpd with the regulation. article 32 of the 2013 implementing rules set forth that lplpd has an authority to issue administrative sanctions in order to ensure compliance with regulations, including the provision of official warnings regarding violations; recommendations to dismiss of a member of the board, or the entire board, if serious failures persist; and referral of serious misconduct that constitutes criminal conduct to the appropriate authorities. articles 24, 25 and 26 of the lpd regulations also impose criminal liability for “deviation from the applicable provisions or negligence” causing “direct or indirect harm to lpd” by a manager or employee of an lpd. article 26 (as amended in 2012) sets the maximum penalty for this breach as three months imprisonment and a fine of idr 50 million. these provisions are removed in 2017 and thus lplpd only can ensure compliance through “soft” means. the 2017 regulations and implementing rules impose a duplicated monitoring 61 lpd regulations, art.1(14). 62 lpd regulations, art. 23 128 process on lpds. although the lplpd has the ability to carry out monitoring functions, no division of monitoring functions between the lplpd and the pakraman internal watchdog is made clear, and it causes a defect in the implementation of supervisory system of lpd such as permitting serious misconduct to go undetected (in some instances) until the damage is already done. as the reports of the lplpd are not routinely made available to the public, objective assessment of their performance is hampered. an issue commonly reported by major stakeholders is that, although the lplpd collects reports from participating lpds, little verification or analysis takes place. lpd pecatu, one of the largest lpds in bali province, is a typical example of the rapid development that lpds and their host communities have experienced. based on interviews with i ketut giriarta,63 the leader of lpd pecatu, the lplpd’s monitoring functions are not yet properly implemented in bali. during the time that lpd pecatu has been subject to the lplpd’s reporting requirements, the lplpd never made attempts to verify or cross-check the content of the reports of lpd pecatu. in addition, lplpd never offered the coaching or empowerment services it claims to. the failure of the lplpd to provide reports to the lpds that support it make it difficult for the managers of lpds to assess the lplpd’s performance and overall benefit to the lpd. the performance of the lplpd itself is not subject to detailed monitoring, and its performance standards are not clearly set by regulation – a factor that may contribute to the ineffectiveness of the lplpd as a supervisory body. in particular, the lpds that do co-operate with the lplpd in good faith receive little feedback or assistance from the lplpd, despite this being the agency’s primary stated mission. prior to 2017, the lplpd is empowered to impose significant penalties on non-complying lpds, however, it appears to be hesitant to do so in practice. as a result, certain lpds continue to operate with blatant disregard for state law. the 2017 regulations do not provide for the imposition of sanctions. there are at least – two constraints that contribute to the lplpd’s less optimum performance. firstly, the nature of lpd as a part of the customary village make it difficult to be regulated by the regulations. the customary village has obtained recognition based on the indonesia constitution as an autonomous entity and thus it is difficult to apply outside rule (i.e. lpd regulations) within the customary village. second, the duties of the lplpd are outweighing its capacity. the lplpd need to have sufficient resource, experts, and facilities in order to perform its function properly. moreover, the number of lpds that must be supervised are more than a thousand. in fact, the lplpd is facing lack of experts and resources. this limitation means that the lplpd cannot achieve its main goal, namely to oversee and empower all lpds in bali. 63 i ketut giriarta, chief of lpd desa adat pecatu, interview by luh putu yeyen karista putri and eric gordon withnall, december 4, 2015. protecting the “village credit institution”: should traditional communities adopt modern financial management practices? luh putu yeyen karista putri and eric gordon withnall udayana journal of law and culture vol. 02 no.2, july 2018 129 due to lack of supervision, some lpds in bali are facing mismanagement issue. this issue can ruin the reputation of an lpd and also trigger public distrust. trust is essential for any financial institution. if the monitoring mechanism of lpd is not improved, the customer will switch to other financial institutions such as banks. banks have a better monitoring mechanism because they are supervised by the central bank of indonesia and otoritas jasa keuangan (the authority of financial institution or ‘ojk’). if this situation continues, lpds will be abandoned by their customers and the existence of lpds as a community-based financial institution will be threatened. the leader of lpd desa adat pecatu is aware of the importance of an audit to a financial institution. therefore, lpd desa pecatu hires a public accountant to audit its liquidity annually. this undertaking is conducted to ensure the good management of the lpd and the results of the audit are used for future planning.64 2.3 protection mechanism of lpd 2.3.1. financial risk finance services are exposed to certain risks. these risks include: credit risk, market risk, operational risk,65 liquidity risk, reputational risk, strategic risk, legal risk,66 and systemic risk.67 this paper discusses only the risks of credit, operational and liquidity, those believed to be the most relevant to lpds. some lpds in bali are dealing with non-performing loans where the customer cannot fulfil their repayment obligations. in addition, some lpds are also exposed to a risk of loss resulting from inadequate internal processes or failed management systems.68 there is also a serious concern with regard to liquidity risk that may disable a bank from carrying out day-to-day cash transactions.69 2.3.2. protection mechanism under customary law as lpds have begun to operate on the same level as commercial banking institutions, they are beginning to face the same kinds of financial risk faced by commercial banks. considering the number of assets owned by some lpds, it can be fairly said that responsible risk management practices are required to safeguard the rights of customers, as well as the rights of the beneficiaries of lpds. 64 michael power, “the invention of operational risk”, review of international political economy 12, no. 4 (october 2005): 580. 65 ibid. 66 i wayan suartana and i ketut jati, “risk based internal audit based on culture: case study at lpd desa adat pecatu in bali,” journal of economics and sustainable development 8, no. 18 (2017): 199. 67 ian davis, op.cit., 399. 68 see lembaga penjamin simpanan, op. cit. 69 see kontan, op. cit. 130 balinese customary law enforces no uniform protection for lpd customers. traditionally, the personal transactions of lpds are conducted with a reliance on the principle of lascarya (trust and sincerity). within the customary village with strong community interest and involvement in the management of lpds, traditional sanctions as decided by the paruman70 have previously been effective. any dispute will be settled amicably and if there are customers who fail to pay the loan, the paruman usually gives them a second chance. however, if they cannot fulfil the obligation or if they commit severe violations, they may be punished. historically, a villager’s overwhelming dependence on a harmonious relationship with the village may have been sufficient to ensure the compliance in the loan agreement. however, the rapid economic development of bali means that individual residents now have more financial mobility than ever. therefore, social sanctions are no longer sufficient in all cases to ensure compliance in the loan agreements. 2.3.3. protection mechanism under lpd regulations as substantiated in subsection 2.3.1, lpds are exposed (mainly) by three types of risks, namely: operational risk (related to mismanagement), credit risk (borne out of non-performing loans) and liquidity risk (related with cash reserve and a customer’s money). in order to protect lpds from operational risk, the lpd regulations stipulate a double system of supervision (internal and external) as substantiated in subsection 2.2.1 and 2.2.2. the management of credit risk is regulated in the implementing rules. as stipulated in article 10 of the implementing rules, an lpd is only allowed to give loan up to 20 per cent of the total capital. in addition, pursuant to article 12, lpds are obliged to classify loan provided to customers into four categories based on their collectability. they are: performing loan (kredit lancar), hampered (kredit kurang lancar), delinquent (kredit diragukan), and non-performing loan (macet).71 these classifications are used as a basis to determine the strategy of credit management. pursuant to article 14 of the implementing rules, lpds have three options in restructuring the credit. first, the time limit or deadline for the payment can be extended (known as ‘rescheduling’). second, the terms/conditions that stipulated in the credit contract can be amended or modified (known as ‘reconditioning’). lastly, lpd can combine those two options. if this strategy is failed, then lpd can take the last resort, namely sell the security through an auction.72 such credit management is commonly used by banks and other financial institutions. article 8 of the implementing rules stipulates that lpds have to maintain their reserve with the minimum threshold of 12 per cent of the total capital. this provision is important to tackle liquidity risk. in addition, articles 21 and 22 provide 70 see subsection 2.2.1. 71 implementing rules, art. 13 (1). 72 implementing rules, art. 17. protecting the “village credit institution”: should traditional communities adopt modern financial management practices? luh putu yeyen karista putri and eric gordon withnall udayana journal of law and culture vol. 02 no.2, july 2018 131 rules on liquidity management in which lpds should maintain their reserve (cash supply) minimum 20 per cent of the total capital. lpd regulations also provides specific rules on a protection scheme as a risk management strategy. pursuant to article 22 (1) of the regulations, the lplpd has the responsibility to perform a protection scheme. the lpd protection scheme is a fund specifically established to preserve lpds and prevent insolvency.73 the scheme is only available for the members who comply with the obligations set forth in the lpd regulations, including pay the empowerment fee. this obligation is stipulated in article 23 (1) of the regulations. according to article 23 (1), the net profit of lpds at the end of a financial year shall be allocated as follows: a. capital reserves 60% (sixty percent); b. rural development funds 20% (twenty percent); c. production services 10% (ten percent); d. empowerment fund 5% (five percent) or not exceed idr 300 billion; and e. social fund 5% (five percent). the empowerment fund of 5 per cent must be paid to the lplpd as its main source of funding in order to enable its guidance and empowerment functions. however, in practice, a number of lpds refuse to pay the fee – so far without retribution – and as a result, the lplpd’s effective budget become smaller than originally intended. according to the head of lpd desa adat pecatu, many smaller lpds informally report that, without any meaningful benefit to participating in the lplpd, spending 5 per cent of the lpd’s profits is unacceptable to the interests of the community. many larger and well-funded lpds believe the fee is unnecessary. as a specialized financial institution, lpds have special protection and guarantees as stipulated in chapter xii of the regulations. article 22 (1) mandates the existence of the protection scheme whereby lpds can borrow funds in order to avoid insolvency; article 22 (2) establishes a “scheme protection fund” funded jointly by lpds that can be used to guarantee customer deposits. it is difficult to implement the consumer protection and guarantee mechanisms stipulated in the regulations. the main constraint is the difficulty in collecting the empowerment fund from all lpds in bali. with only a few who pay the development fund, the scheme protection fund excludes many lpds from its protective capabilities. this further contributes to the issue of lpds in bali refusing to contribute to the lplpd, causing other lpds to view the development fund to be futile. this further inhibits assurance mechanisms and protections for both lpds and customers. the provincial government tried to improve lplpd’s performance and reputation by requiring a stricter reporting system under article 69 of the 2017 implementing rules. however, there are no consequences or sanction that will be imposed to lpds 73 official explanatory note of art. 22 (1) of the lpd regulations. 132 that fail to pay the empowerment fee. consequently, the new reporting requirement cannot automatically ensure the compliance of lpds to pay empowerment fee. 2.3.4. protection mechanism in lpd pecatu regardless of the relative lack of protection systems provided for in the regulations, some lpds in bali are experiencing rapid development because customers trust those institutions on the basis of their previous record. as an example, lpd pecatu (which holds assets more than idr 300 billion) regularly reviews its own customary rules, and in april 2015, the customary village of pecatu enacted an improved perarem to regulate its lpd.74 pursuant to article 35 (1) of the perarem, a customer who wants to apply for a loan must now fulfil the requirements stipulated in the credit system and procedures of lpd pecatu. the loan application will be assessed by a special committee, chaired by the chief of the customary village of pecatu. article 35 (2) states that customers seeking loans will be bound by a letter of credit agreement. the credit agreements are in the form of a standard contract. the contents of the credit agreement can be adjusted if the parties so desire.75 these basic guidelines ensure that the operation of lpds like pecatu is undertaken with relative prudence. the actual credit agreement, in the absence of special regulation, falls under the indonesian civil law as stipulated in the civil code and other general legislation. article 1338 (1) of the civil code stipulates the basic principle of pacta sunt servanda. according to this principle, every (valid) contract is binding upon the parties to it and must be performed by them in good faith. accordingly, the parties to the credit agreement (i.e. lpd and its customer) should comply with the provisions stipulated in the contract. moreover, all of a debtor’s assets, including “the movable and immovable assets,” are considered security for a debtor’s personal agreements, as stipulated in articles 1131 and 1132 of the indonesian civil code. if the customer wishes to provide their land as security, the lpd as the lender is also protected by act no. 4 of 1996 on mortgage regulation.76 lpd pecatu also maintains the credit management standards stipulated in the implementing rules, including the credit classification requirement. in order to ensure legal protection, lpd desa adat pecatu builds a co-operation with a legal consultant.77 the legal consultant gives legal advice and also helps with 74 perarem pangele desa adat pecatu tentang lembaga perkreditan desa (lpd) desa adat pecatu [customary rules of the customary village of pecatu regarding the village credit institution of the customary village of pecatu], 25 april 2015. 75 ahmadi miru, 2007, the contract law and contract design, pt. rajagrafindo persada, jakarta, p. 39. the standard contract is a contract clause that have been set or designed by one party. 76 undang-undang republik indonesia nomor 4 tahun 1996 tentang hak tanggungan [law 4/1996 regarding mortgage regulation]. 77 i nyoman krisnadinata wijaya, legal officer of lpd desa adat pecatu, interview by luh putu yeyen karista putri, june 2, 2018. protecting the “village credit institution”: should traditional communities adopt modern financial management practices? luh putu yeyen karista putri and eric gordon withnall udayana journal of law and culture vol. 02 no.2, july 2018 133 drafting the credit contract and other legal papers. in addition, the legal consultant also assists with auction78 or litigation79 arrangements. however, lpd desa adat pecatu has never been summoned by the court or become a party to a legal dispute – this is clearly not characteristic of all lpds. lpd desa adat pecatu also takes initiative to empower its employees and implements its internal supervision strategies through seminars and other undertakings. this lpd has invited experts, professors, and industry professionals to educate and develop its employees. in addition, lpds also seek advice from expertise (such as former bank directors) and therefore lpd pecatu manages its balance sheet carefully. lpd desa adat pecatu also arranges its own protection system by offering insurance to its customers. this effort is taken to minimize the risk of the unexpected (force majeure). according to the information from the head of credit administrative section of lpd pecatu, the majority of customers agree to sign up for insurance to cover their loan. lpd have claimed insurance several times due to the demise of its customers.80 without the insurance, it would be difficult for an lpd to collect loans caused by demise or other unexpected incidents (risks). therefore, lpd pecatu has a new policy, requiring customers who have a loan of more than idr 20 million to insure their loan.81 in order to provide more protection to its customer, lpd pecatu builds co-operation with several insurances companies. the protection system initiated by lpd desa adat pecatu cannot be compared with the protection system of banks. unlike banks, lpds in bali do not have an effective protection scheme, thus lpd customers are exposed to greater risk. the customers of indonesian banks are protected by lembaga penjamin simpanan (indonesia deposit insurance corporation). customers will likely find more protection and choose bank instead of an lpd. more over, there are a lot of mfis which provides financial services to lower and middle-class society.82 if protection systems are not improved, lpds cannot compete with other financial institutions, particularly banks. the issue of protection system may jeopardize the existence of lpd as a traditional financial institution in the long term. 78 ibid. this is the last resort that will be undertaken by lpd after other means (i.e. rescheduling, reconditioning and restructuration) are failed. lpd pecatu will sell the collateral or mortgage through an auction in order to repay the customer’s loan. before going to auction, lpd pecatu will give (the first, second and third) notifications to the customer. 79 ibid. lpd pecatu hired a legal consultant to give advice and present before the court. lpd pecatu prefers pacific dispute settlement but it also anticipates the possibility of being involved in a civil or criminal case. 80 ni wayan kariasih, head of credit administration of lpd desa adat pecatu, interview by luh putu yeyen karista putri, may 25, 2018. 81 ibid. 82 i gde kajeng baskara, “lembaga keuangan micro di indonesia,” buletin studi ekonomi 18, no.2, (2013): 123. 134 protecting the “village credit institution”: should traditional communities adopt modern financial management practices? luh putu yeyen karista putri and eric gordon withnall 3. conclusion it is very important to strike a balance between preserving the unique (traditional) character of lpd and creating a standard management to protect the customer. the existence of lpd is inseparable from balinese customary villages which have been recognised based on the indonesian constitution and several national laws. the traditional framework is working well for some lpds and they succeed to support the economic development of the customary village and its members. meanwhile, other lpds face an issue of mismanagement due to lack of standardisation of monitoring and protection system. the 2017 lpd regulations and the implementing rules provide rules on monitoring and protection mechanism of lpds. such rules correspond to the monitoring and protection system that applied in modern financial institutions. the government enacting such rules to set standard management system of lpds and protect the customer. hence, it is inevitable for lpds to adopt modern financial institution management. the monitoring system provided in the regulation consists of internal and external supervision. the internal supervision is led by the chief of the customary village while the external supervision is conducted by the lplpd. the internal supervision can generate a significant impact through the imposition of sanctions to the lpds’ management who fail to exercise its obligation. some lpds, including lpd pecatu, complement this monitoring system by using service of a public accountant to audit their management board. meanwhile, the lplpd cannot perform its function optimally due to limitation of resource and inability to impose sanctions. in addition, some lpds stop delivering the periodical report to the lplpd due to insignificant feedback they receive. an effort to improve the lplpd’s performance has been taken by imposing a stricter reporting requirement. it will be better if the lpd regulations and implementing rules also provide authority for the lplpd to impose sanctions in order to ensure regulatory compliance of lpds. lplpd is also mandated to perform the protection scheme. however, the scheme cannot be implemented properly due to the difficulty in collecting the empowerment fund. the monitoring and protection system establish based on the regulations and the implementing rules is more desirable for lpd instead of direct intervention from the ojk. the benchmark set for other modern financial institutions might be applied to lpds. however, the implementation of the monitoring and protection system should be improved in a way that respects the autonomy of customary villages. in addition, every individual lpd is encouraged to take initiative to improve the protection system otherwise, customers may choose other financial institutions. acknowledgement authors would like to express our gratitude to head and staff of faculty of law udayana university and charles darwin university school of law, as well as head and staff of lpd pecatu. the information, views, and arguments set out in this article are those of the authors in the context of academic research and do not necessarily reflect the opinion of their job affiliation. udayana journal of law and culture vol. 02 no.2, july 2018 135 bibliography book dherana, tjokorda raka. masyarakat desa dan awig-awig dalam struktur pemerintahan bali [the village people and awig-awig in government structure bali]. bali: pt. upada literature, 1995. kerr, michael, richard janda, and chip pitts. corporate social responsibility: a legal analysis. markham, ontario: lexisnexis, 2009. miru, ahmadi. hukum kontrak dan perancangan kontrak [the contract law and contract design]. jakarta: pt. raja grafindo persada, 2007. warren, 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august 24, 2011. https://sites.google.com/a/ mmunud.com/dosen/bali/15-persen-lpd-di-karangasem-bermasalah/pesantanpajudul. pemerintah kabupaten badung. “badung serahkan hadiah untuk 12 lpd berprestasi”, last modified desember 12, 2014, https://www.badungkab.go.id/index.php/ baca-berita/857/badung-serahkan-hadiah-untuk-12-lpd-berprestasi. united nations.“sustainable development goals.” accessed may 28, 2018. https:// www.un.org/sustainabledevelopment/sustainable-development-goals/. 140 human rights and the environmental protection: the naïvete in environmental culture made adhitya anggriawan wisadha and grita anindarini widyaningsih positioning adat law in the indonesia’s legal system: historical discourse and current development on customary law bono budi priambodo* amsterdam institute for social science research, the netherlands 1. introduction during the conference on adat law1 in 2017 in leiden, the netherlands, adriaan bedner, a leiden university professor of law and society and an indonesianist, raised the central question concerning the position of adat in indonesian land law: ‘where are we heading?’.2 the second part of the conference addressed the academic * e-mail/corresponding author: b.b.priambodo@uva.nl ; bonoharnowo@gmail.com 1 term ‘adat law’ refers to customary law that is practiced by traditional community in indonesia. the law is created and implemented in autonomous and peculiar ways by highly respecting local wisdom and tradition. 2 jacqueline vel and willem van der muur, report of the conference ‘adat law 100 years on: towards a new interpretation?’ national museum of ethnology leiden, released in october 2017: 4.<https:// www.universiteitleiden.nl/binaries/content/assets/rechtsgeleerdheid/instituut-voor-metajuridica/conference-report---adat-law-100-years-on.pdf> abstract adat law has been narrowly understood, mainly as part of private law, in the curricula of indonesian law schools. this is in contrary to the original intent of adat law, both as an academic and policy discourse, at the first place, which was as an attempt to develop a legal system that is suitable to govern the netherlands east indies (nei) for preventing violation against the indigenous sense of justice. this article seeks to clarify the actual purpose of adat law, as it conceived, in the living of traditional community and the relation between adat law and indonesian state law following the indonesian independence. subsequently, this article would explore how constitutional law and administrative laws (staatsrecht) would place “adat law” under the indonesian legal system that might be well claimed as an autochthonous law of indonesia. it is a legal writing that uses historical, statutory, and case approaches. it has been found out that adat law scholarship had a pragmatic purpose i.e. to administer justice and govern the nei colony that reflects a characteristic of public law. the later development showed that the law has shifted its focus into private law fields such as the law of persons, marriage and family laws, property and inheritance laws. such shifting leads adat law into an obscured relation between adat law and public laws in the era of the post-independence of indonesia. it can be concluded that under historical inquiry, the basic law of 1945 (indonesian constitution) has strongly inspired by adat law. the same goes for administrative law, which in this case is represented by bal that governs not only land administration but all kinds of natural resources in indonesia until nowadays. keywords: indonesian adat law; constitutional law; administrative law; legal system; legal theory. how to cite (chicago-16th): budi priambodo, bono. “positioning adat law in the indonesia’s legal system: historical discourse and current development on customary law.” udayana journal of law and culture 2, no. 2 (2018): 140-164. https://doi.org/110.24843/ujlc.2018.v02. i02.p02. doi: https://doi.org/10.24843/ujlc.2018.v02.i02.p02 vol. 02, no. 2, july 2018, 140 -164 udayana journal of law and culture vol. 02 no.2, july 2018 141 debate regarding the concept, use and current relevance of adat. keebet von bendabeckmann, a scholar from max planck institute for social anthropology, halle-saale, germany, addressed the value of van vollenhoven’s analyses in light of current struggles over resources and explained that his work on customary law in the dutch east indies stemmed from his concern on the ways the colonial government dealt with it.3 the stereotype of adat law in the indonesia’s constitutional law and administrative law—or, in other words, the way in which constitutional law and administrative law perceive adat law—is perhaps already well-known to most scholars. since it has been initiated by law number 5 year 1960 on the basic regulation of the essentials of agrarian affairs (or more renowned, and subsequently called as the basic agrarian law /bal), adat law is recognized “as long as in reality still exist” 4and “does not in conflict with the state interest.”5 each and every administrative law in indonesia, particularly those pertaining to the management of natural resources, follows this pattern of policy. even, the second amendment to the basic law of 19456 follows such model by stipulating the idea that “the state acknowledges jural communities and their traditional rights as long as they still live and in accordance with advancements in the society and the principle of unitary state of the republic indonesia, to be further stipulated by law.”7 however, the continuing process of the agrarian reform seems face some obstacles, such as conflict between traditional rights and the modern, western-influenced, various interests and purposes of the state. in the forestry sector, particularly with regard to the act of state on conducting control over forests, the rights of jural communities is limited to the actual existence of the community. shall be considered “as long as in reality still exist and its existence is recognized, as well as not in conflict with national interest.”8 accordingly, pertaining to plantation, if the land to be used for that purpose “is ulayat land 3 ibid.6. 4 law number 5 year 1960 on the basic regulation of the essentials of agrarian affairs (basic agrarian law /bal) art. 3. 5 ibid. art. 5. 6 the term “undang-undang dasar” is usually translated into constitution. however, i intentionally translate it into “basic law” to match the term used in the “elucidation to the 1945 basic law,” which will be discussed and elaborated later in this article. 7 second amendment to 1945 basic law. art. 18b.2. the term jural community is used to translate kesatuan masyarakat hukum adat (bahasa indonesia) and rechtsgemeenschap (dutch), that refers to customary community that implements its own customary rules. 8 law number 41 year 1999 on forestry. art. 4.3. this clause however has been amended pursuant to minister of forestry circular no. se.1/menhut-ii/2013 j.o. constitutional court decision no. 35/puux/2012 dated 16 may 2013 concerning judicial review of the consitutionality of several articles in 1999 forestry law, particularly pertaining to the stipulation that adat forests (hutan adat) are state forests (hutan negara) managed by jural communities. according to the circular, the stipulation only applies to jural communities whose existence is not yet confirmed by a regional regulation. (peraturan daerah) if its existence is already established by a regional regulation, ministry of forestry, or, currently ministry of environmental affairs and forestry shall thus establish the status of forest area claimed by the jural community as their ulayat right as adat forest pursuant to regulation of ministry of environmental affairs and forestry number p.32/menlhk-setjen/2015 on forests subject to rights. 142 positioning adat law in the indonesia’s legal system: historical discourse and current development on customary law bono budi priambodo belonging to a jural community which in reality still exist,” the granting of right over the land shall be preceded by “consultation with the jural community as the holder of hak ulayat (right of allocation; beschikkingsrecht) and its members that hold any rights over the land, shall reach an agreement concerning transfer of land and its compensation.” 9 1.2. purpose this article seeks to firstly clarify the actual purpose of adat law and the relation between adat law and indonesian national law following the independence. subsequently, this article attempts to explore how constitutional and administrative law (staatsrecht) would be situated in an “adat” legal system that might well be claimed as an autochthonous law of indonesia.10 it is not about “stereotype” as previously explained in the background. on the contrary, it discusses the other direction i.e. how would adat law11 recognizes indonesian constitutional and administrative law, as laws that govern the formation and the working of the state (staatsrecht). to a large extent, this question is far more relevant and makes more sense, because adat law is a legal system of its own while constitutional law and administrative law are only fields of law. 1.3. method this writing explores legal philosophy and concepts of adat law. it uses a historical approach to look back on how dutch government and scholars initiated adat law as well as to discover legendary debates on the position of adat law in the indonesia’s legal system by indonesian leaders and legal scholars before and after the independence of the state of indonesia. besides, this paper also employs a statutory approach in analyzing relevant law and regulations while resources are obtained from textbooks, journals, and reports. it also applies a case approach, particularly in analyzing the decision of the indonesian constitutional court on the issue of jural community rights over their customary lands. 9 law number 18 year 2004 on plantation, art. 9.2. as an impact of the constitutional court decision mentioned above, this clause, too, is amended in 2014, scrapping the words “which in reality still exist” vide law number 39 year 2014 on plantation, art. 12. the decision itself, i think, is somewhat awkward. if legislative stipulations requiring recognition to jural communities and their rights to fulfill the conditions of “as long as in reality still exist” and “not in conflict with national interests” are unconstitutional, how come the 1945 constitution still contain the clauses? or, in other words, how could those legislative stipulations be unconstitutional if the constitution itself require the same things? 10 adat law as a legal system was the views of kusumadi pujosewoyo and supomo, as discussed in bushar muhammad. asas-asas hukum adat. suatu pengantar. ed. ix. (jakarta: pradnja paramita, 1994),16-17, while adat law as indonesian autochthonous law (hukum aseli indonesia) was supomo’s opinion further developed by kusnu, as discussed in iman sudiyat. (2000) asas-asas hukum adat: bekal pengantar. ed. iii. (yogyakarta: liberty, 2000), 105. 11 in this article, i differentiate between adat law and adat law(s). i write adat law with capitalization in each word when i refer to adat law as concepts and principles that are considered as “universal” throughout indonesian archipelago, while adat law(s) in lower case, sometimes in plural, refer to the actual laws that live among the people.this is in line with m.kusnu’s differentiation between adat law in expert’s sense and in lay people’s sense. udayana journal of law and culture vol. 02 no.2, july 2018 143 the structure of this article can be described as follows. the introductory section exposes the background, aims of writing, the method of the research, and the relevant literature supporting, or providing insights into the ideas of this writing. the section of result and analysis started with a discussion on the actual purpose of adat law that developed during the colonial times. afterwards, the position of adat law in the national legal system in the independent state of indonesia is discussed. historical and scholarly debates were revisited to reaffirm that adat law is indeed an integral part of the indonesian state law. the analysis then continues to an inquiry to ideas behind the deliberations of the basic law of 1945 which very much inspired by adat law. subsequently, a discussion concerning the relation between adat law and administrative law, under the issue of land law has been forwarded. bal shall be examined, since the law has been claimed as, among others, the national agrarian law is based on adat law concerning land; and, furthermore, “agrarian law applicable to land, water and airspace is adat law.” the result of the analyses has been drawn up in the section of conclusion for framing and sharping the ideas of the writing. 1.4. literature review researches on customary laws generally discuss on how custom and tradition may be recognized and used in practice as a source of law,12 including the way authorities regarded them as binding rules with its quasi-nature. customary laws have been analyzed from various perspectives, such as socio-legal studies, especially the anthropology of law,13 constitutional law,14 legal pluralism,15 and human rights.16 scholars were also interested in discussing it in more thematic issues, for example, enforcement of the customary law,17 traditional community and indigenous peoples,18 or customary inheritance rights.19 12 morsen mosses, “custom as a source of law in vanuatu: a critical analysis,” journal of south pacific law, special edition (2017). 13 tien handayani nafi et.al., “peran hukum adat dalam penyelesaian kasus-kasus kekerasan terhadap perempuan di kupang, atambua, dan waingapu”, jurnal hukum & pembangunan 46, no. 2 (2016): 233234. 14 datu bua napoh, “recognition of the customary land law in the constitution of indonesia and malaysia,” brawijaya law journal 2, no.2 (2015). 15 robin perry, “balancing rights or building rights? reconciling the right to use customary systems of law with competing human rights in pursuit of indigenous sovereignty,” harvard human rights journal 24, no.1 (2011): 73-75. 16 ibid., 83-113. 17 jeanmarie fenrich and mary mcevoy, “promoting rule of law in customary tribunals in ghana,” harvard human rights journal 11 (september 2014). 18 lillian aponte miranda, “indigenous peoples as international lawmakers,” university of pennsylvania journal of international law 32, no. 1 (2010) 19 budi prasetyo, “contribution of adat law in the reform and development of national inheritance law in indonesia”, south east asia journal of contemporary business, economics and law 15, no.5 (april 2018). 144 positioning adat law in the indonesia’s legal system: historical discourse and current development on customary law bono budi priambodo mirza satria buana has conducted research on the practices of legal pluralism in indonesia, especially from philosophical, social and legal perspectives.20 he argued that the idea of implementing strong legal pluralism is rather naive, and thus, considered that state legal pluralism is more feasible and realistic, and therefore should be enforced.21 regarding adat law, his writing expresses disagreement to the concept established by ter haar concerning four requirements for legally-based indigenous peoples22 by considering that these may lead to a false dichotomy between culturally-based indigenous peoples and legally-based indigenous peoples. he considers the concept as a fallacy, so the concept of the legally-based indigenous peoples currently used by the indonesian constitution and legislation may lead to discrimination.23 nurjaya employes legal anthropology approach to finding another atmosphere in building a better, more holistic understanding on whether the 1945 basic law defines a genuine or pseudo-recognition and protection of adat communities and their traditions, especially concerning rights to, and tenure of, natural resources.24 when assessing provisions contained in some legislation, i.e. bal and laws on forestry, spatial use, water resources, coastal zone and small islands management, mineral and coal mining, and environmental protection and management, he highlights the conditional phrase “as long as” with regard to the recognition and respect of the adat society.25 in his view, it obviously leads to restrictions on, and neglect of, the rights of adat communities to control, manage and utilise the natural resources they depend on for survival in the territory and entails that customary environmental wisdom is automatically dominated and subordinated by the national legislation over natural resources.26 the continuous neglect and abuse have encouraged adat communities to push for a law regulating and protecting their rights.27 kallie szczepanski is a bit sceptical on how law and policies of land in indonesia would be in favour of adat communities’ interests. szczepanski views that “bal pays lip service to adat while ensuring that it can be preempted at will by the 20 mirza satria buana, “living adat law, indigenous peoples and the state law: a complex map of legal pluralism in indonesia,” international journal of indonesian studies 1, no. 3 (2016): 105. 21 ibid, 116. see also mirza satria buana, “state courts, traditional dispute resolution and indigenous peoples in south kalimantan: a socio-legal study” (ph.d diss., tc beirne school of law, university of queensland, (2017), 30. 22 ter haar requires the following, (1) the community has well organised groups; (2) the community has its own territory; (3) the community has its own tribal institution (in particular a tribal court); and (4) the community has both material and non-material (spiritual) goods. 23 mirza satria buana, op. cit., 107. 24 i nyoman nurjaya, “is the constitutional and legal recognition of traditional community laws within the multicultural country of indonesia a genuine or pseudo recognition?,”constitutional review 1, no.2 (december 2015): 52. 25 ibid., 54-55. 26 ibid., 55. 27 moses ompusunggu, ‘adat’ communities want their own special law: why?, the jakarta post, may 11, 2018. udayana journal of law and culture vol. 02 no.2, july 2018 145 slightest governmental interest. as indigenous rights and law are weakened, the national government gains an ever-greater ability to deprive indigenous peoples of their lands.”28 in addition, szczepanski assessed that indonesia’s laws and policies lead directly to despair and violence for the displaced indigenous peoples of the outer islands.29 daniel fitzpatrick argues that “bal in practice is not a syncretic amalgam of western and adat principles but instead operates contrary to adat, particularly in its imposition of western-style, individualized land titles on customary forms of tenure”.30 this inconsistency with adat has two fundamental consequences. first, the process of registering titles under the bal itself creates long-term disputation and social conflict, and, for that reason, is highly unlikely to fulfill its objective of legal certainty. second, the bal’s failure to provide legal certainty, in combination with the erosion or subjugation of adat authority in many areas, have created a dangerous legal vacuum and allowed ad hoc bureaucratic fiat to dominate the administration and development of land in indonesia. 2. result and analysis 2.1. the actual purpose of adat law it is important to firstly clarify the background and actual purpose of introducing adat law discourse as well as criticizing the fact that adat law, up until recently, concerns mainly—or even is identical with—private laws; particularly in the curricula of legal higher educations in indonesia.31 this clearly is not in accordance, not only with recent developments but also with its background, where adat law inquiries and discourses were paramount both in academic and policy realms for a very pragmatic purpose i.e. governing the colony. a proof can be presented here from as early as 1842 when dutch minister of the colonies j.c. baud stated the following. “[it was] a manifest truth that a subjected people cannot, in the long run, be kept in subjection without violence unless the foreign ruler was determined to govern this people with fairness and justice and, above all, in deference to native attitudes, customs and bias.”32 28 kallie szczepanski, “land policy and adat law in indonesia’s forests,” pacific rim law & policy journal 11, no.1 (january 2002): 241. 29 ibid., 255. 30 daniel fitzpatrick, “disputes and pluralism in modern indonesian land law,” yale journal of international law 22, no. 1 (1997): 173. 31 this tendency was observed by, among others, suryono sukanto and soleman taneko. hukum adat indonesia. (jakarta: rajagrafindo persada, 2003), 117. the first print of the book was in 1981) as follows, “nowadays, evident in the curricula of law schools in indonesia, an unsuitable systematic is being “forced” which is contrary to the living reality of nowadays adat law, where adat law course is always understood as comprising of only adat private laws.” 32 cess fasseur. “colonial dilemma: van vollenhoven and the struggle between adat law and western law in indonesia,” in european expansion and the law, ed. wolfgang j. mommsen, and jaap a. de moor (oxford/new york: berg, 1990), 241-242. 146 positioning adat law in the indonesia’s legal system: historical discourse and current development on customary law bono budi priambodo in fact, it was this kind of attitude or anything like it that later triggered a protracted debate over how the netherland east indies (nei) should be governed. on one hand, there was an idea that nei should be governed under a legal system that consists of decisions which are issued and enforced by superior authorities that are recognized just like that. on the other hand, there was this idea that emphasizes on justice for the people, where the legal system is a set of institutions unanimously known, recognized and enforced among the people, by the people themselves33 —an idea that later was elaborated into adat law. in the words of van vollenhoven, the father of adat law scholarship himself, the purpose of the scholarship is “the creation— not on paper but in reality—of a good administration of justice and a good system of government.”34 from the very beginning—more than just academic studies on private laws—adat law was understood as (i) a legal system, and,(ii) means of governance.in other words, in the late 19th century and early 20th century, the kingdom of netherlands looked for a solution to governance problems in the nei, and the chosen solution, as the history would attest, was adat law. even nowadays, as von benda-beckmann puts it; “the discussions about the interpretation of adat law and ulayat rights were always much more than mere academic exercises. they concerned the legitimation of political and economic power over natural resources and the question on which law the road to‘development’ was to be built.”35 it can, therefore, be concluded that adat law discourse is essentially a discourse concerning legal system and governance that is continuously relevant from the time it was introduced to recent times. it is indeed disheartening when adat law nowadays fossilizes within the curricula of law schools in indonesia only as a part of private laws—as one of its varieties i.e. “western,” islamic, adat private laws and now, economic laws.36 2.2. adat law is national law since1927, after previously being ignored,even oppressed under the concordance principle and unification policy, indigenous adat laws finally prevail as the only laws 33 peter burns. the leiden legacy. concepts of law in indonesia (leiden: kitlv press, 2004), xv. 34 jf, holleman, (ed.) van vollenhoven on indonesian adat law (dordrecht: springer science, business media, 1981), xxi. 35 franz von benda-beckmann,and keebet von benda-beckmann (2011) “myths and stereotypes about adat law. a reassessment of van vollenhoven in the light of current struggles over adat law in indonesia.” bijdragen tot de taal, land en volkenkunde 167, no.2-3 (2011): 180. 36 these indeed are subdepartments of private laws department in universitas indonesia faculty of law. western laws subdepartment focuses on private laws as stipulated in the dutch 1838 burgerlijk wetboek, (civil code) islamic and adat subdepartments respectively concerns with islamic and adat private laws, while economic laws develops from dutch 1924 wetboek van koophandel (commercial code) and its further development in the forms of corporate law, banking law, investment law, and other standard topics of business laws. some indonesian scholars recognize the link between adat law and islamic law. see for example review on hazairin thought in sukiati, “hazairin’s legal thought and his contribution towards the indonesian legal system,” journal of indonesian islam 6, no.1 ( 2012) udayana journal of law and culture vol. 02 no.2, july 2018 147 applicable to indigenous population in nei; while for other population groups, their own laws shall prevail respectively.37 nei colonial government from that time on abandoned unification policy and “tended to document adat laws from one locality to the others.” concerning legal policy at that time, iman sudiyat provides following explanation. “laws applicable to indigenous indonesians were established after investigation to their actual legal needs; and when it was evident that adat law cannot yet be abandoned or replaced with other laws, the necessary adat law was preserved.”38 nevertheless, after the proclamation of independence, lawyers from among indonesians themselves started to speculate on a distinct national legal system for independent indonesian state, where in general they debated over what must be done to the colonial legacy of the pluralistic legal system.39 bushar muhammad claimed that “most of them wanted to have a modern unified law” for a national legal system; while the rest, ever loyal to colonial policy from 1927, did not see a possibility to that direction and wanted “legal codification for respective population groups.”40 a noteworthy post-independence adat law theory was put forward by no other than supomo himself, who in 1941 replaced ter haar as professor of adat laws in rechtshoogeschool, batavia. dubbed by otje salman as “ideologization of adat law,”41 supomo used adat law concept of the communal trait42 to construct a distinct staatsidee or theory of the state that he called “negara [yang] integralistik,” or integralist state, as follows. “in the situation of unity between leader and the people, among groups of people, all groups will be embraced by the spirit of gotong-royong, (communal mutualism) the spirit of kekeluargaan. (familyhood) it is therefore clear that if we want to establish an indonesian state that is in accordance with the unique characteristics and traits of indonesian people, then our state must be based 37 iman sudiyat,op.cit. 93-94.see also bushar muhammad,op.cit. 173-174. 38 iman sudiyat,op.cit. 93. 39 some scholar may also argue that indonesia’s independence sought efforts to reintroduce and acknowledge not only adat law, but also islamic laws as part of indonesia’s legal system. see for instance fajri muhammadin and danusatya, hanindito, 2017. “de-secularizing legal education in indonesia: examining the ‘introduction to jurisprudence’ textbooks on norm classification” in e-proceedings international seminar on islamic civilization and thoughts, november 20, 2017, 51-59, pulau pinang: school of humanities universiti sains malaysia: 53. 40 bushar muhammad.op.cit. 179. 41 otje salman soemadiningrat. rekonseptualisasi hukum adat kontemporer. (bandung: alumni, 2002), 122. 42 this concept originated from inauguration speech by f.d.holleman as professor of adat laws in leiden university in 1935 titled de commune trekin het indonesische rechtleven (the communal trait in the indonesian jural lives) vide bushar muhammad.op.cit. 44. 148 positioning adat law in the indonesia’s legal system: historical discourse and current development on customary law bono budi priambodo on an integralist theory of the state, (staatsidee) an integralist state, a nation-state that is one with the people, be above and beyond all groups in just any fields.”43 instead of using “the pure idealization of philosophies of life and the state by the philosophers,” otje salman commented on this, supomo “returned to the system of adat law,” when asked to suggest a philosophical background (philosophische grondslag) for an independent indonesian state.44 supomo himself is an advocate of unified national law. in an occasion of the first anniversary of gadjah mada university yogyakarta on 17 march 1947, he delivered a speech that was said to “catch the world of indonesian jurisprudence and beyond by surprise” because it reversed from the 1927 policy; which, as concluded by iman sudiyat, is as follows. “it is inevitable that the people and the state of indonesia must develop into modern people and state. [however] modern law is not dutch law. instead, it is the law that contains universal modern principles. codification, as far as possible, must be in a unification nature, particularly in the field of property law. unification, on the other hand, is still difficult in the field of family law, because it is strongly related with, and influenced by, spiritual beliefs from respective groups of people. [all being told] adat law will still provide the building blocks for the structuring and development of this new law.”45 this kind of logic and those that leads to this direction are followed in a policy proposal submitted by dewan perancang nasional (depernas; national development planning agency) in 1959, which took as its stance that the only legal system which is suitable and supportive to the development of a national legal system is adat law, because it is conformable with national character. this proposal was later adopted by majelis permusyawaratan rakyat sementara (provisional people’s consultative assembly) in its decree no. ii/mprs/1960 on the broad guidelines of the first phase of universal national development plan1961-1969, which, among others, stipulated that adat law is the foundation of the national legal system, in which; (1) adat law is no longer only a part of national law i.e. unwritten part, but the national law itself, both written and unwritten; (2) adat law is no longer understood as unwritten law originating from local customs; and, 43 sekretariat negara ri. risalah sidang badan penyelidik usaha-usaha persiapan kemerdekaan dan panitia persiapan kemerdekaan indonesia (jakarta: sekretariat negara ri, (1992), 30. 44 otje salman soemadiningrat. op.cit., 124. 45 iman sudiyat,op.cit. 95. udayana journal of law and culture vol. 02 no.2, july 2018 149 (3) adat law shall be extrapolated to a higher plane i.e. national, so that it will be of an abstract nature and contains values applicable generally to all citizens of indonesia and throughout the territory of the republic of indonesia.46 mohammad kusnu provided a theoretical justification for such legal policy, when he understood adat law in two senses, which are (i) lay people’s sense; and, (ii) expert’s sense. adat law in lay people’s sense basically is the same with the way it was understood during colonial times i.e. customary institutions that are used by the people to solve their daily lives’ problems. meanwhile, adat law in expert’s sense refers to its “abstract-normative” aspects, in the form of values that “live, believed, internalized and upheld” by the people and inspire the customary institutions. adat in this sense “is situated in the spiritual world as values that contain normative legal sense and aspiration.”47 it is this adat law in expert’s sense that contains “an integral unity of normative principles in accordance with the cultural mindset of indonesian people,” which according to kusnu is “the normative system [that] shall serve as the reference or foundation of the format and materials of national law.”48 2.3. an adat law-inspired constitution thanks to the authoritarian new order regime’s exploit of his integralist state theory, supomo the legal theorist is exceptionally notorious to the outside world, even among indonesian lawyers.49 this, i would argue, is gravely unfair because foreign observers usually focus their attack only on his speech on 31 may 1945 while overlooking his other few-but-very-important works. the 1945 basic law 46 iman sudiyat,op.cit.103-104. 47 moh. koesnoe. hukum adat sebagai suatu model hukum. bagian i (historis). (bandung: mandar maju, 1992), 83. 48 ibid. 148. 49 for years, supomo has been incessantly bullied by a host of writers, foreign and indonesian alike. some of recent examples are, to name but a few, j. gillespie, “public discourse and constitutional change: a comparison of vietnam and indonesia,” asian journal of comparative law 11, no 2 (2016); damos damoli agusman, “the dynamic development on indonesia’s attitude toward international law.” indonesian journal of international law 13, no.1 (2015); agus wahyudi. “human rights and corruption: indonesian case for reconciling universalism and relativism.” in subrata sankar bagchi and arnab das (eds.) human rights and the third world: issues and discourses. (lanham: lexington books, 2013). there are at least two monographs dedicated almost exclusively to this end i.e. d. bourchier. illiberal democracy in indonesia: the ideology of the family state. (london: routledge, 2015) and marsilam simanjuntak, pandangan negara integralistik: sumber, unsur dan riwayatnya dalam persiapan uud 1945 (jakarta: pustaka utama grafiti, 1994). on the other hand, sympathetic voice concerning supomo’s thoughts, as well as those of other indonesian adat legal scholars on post-independence adat law is a valuable rarity. hooker (michael barry hooker, adat law in modern indonesia. oxford: oxford university press, 1979) is perhaps the only example of this rarity, even though he could not escape harsh critics for his views. david m. engel, “adat law in modern indonesia.” the american journal of comparative law 28, no. 2 (1980): 352 354, https:// doi.org/10.2307/839892 150 positioning adat law in the indonesia’s legal system: historical discourse and current development on customary law bono budi priambodo and—particularly—its elucidation,50 for instance, is arguably the pinnacle of his career as a lawyer and legal theorist as well. if only van vollenhoven were still alive in 1945, he would have found out that his hope of the emergence of indonesian blackstone, grotius or euripides fulfilled by supomo—although not exactly like what he had wished for.51 supomo had succeeded in elaborating a constitution for independent indonesia that is based solely and purely on adat law as the autochthonous law of indonesians. his faith in adat law is unwavering, conspicuous right from the very first sentences of the elucidation to 1945 basic law, when he said the following. “the basic law of a state is only a part of the constitution of the state. the basic law is the written [codified] constitution, while complementing the basic law is the unwritten [uncodified] constitution i.e. basic rules that emerge and are preserved in the state management practices, although unwritten.”52 how can we understand this statement? there can be no other way to do so but to have at least a minimum understanding of adat law discourses. not only that these adat law scholars observed unwritten or uncodified legal rules as the main feature of adat laws,53 they indeed have faith in the virtue of uncodified law, particularly because of their understanding of law as the “living law.”54 that is why supomo in the elucidation insisted that examining only the texts of a basic law will 50 anthony reid mentioned supomo as “van vollenhoven’s most influential student” and “ the principal author of the indonesian constitution,”(“political“tradition”in indonesia: the one and the many.” anthony reid, “political “tradition” in indonesia: the one and the many,” asian studies review, 22, no.1(1998): 26. while elson in a note, stated that the elucidation to 1945 constitution “[was] the work of supomo, [although it] did not emerge formally until its publication in the official berita republik indonesia on 15 february 1946.” robert edward elson, the idea of indonesia. a history (cambridge: cambridge university press, 2008). the version of the text of elucidation to 1945 basic law referred in this article is the one included in presidential decree 5 july 1959 which was later published as part of dewan pertimbangan agung ri. tudjuh bahan pokok indoktrinasi. (jakarta: dpa ri, 1961). 51 holleman, j.f. op.cit. 261. in 1931, van vollenhoven argued that the future of adat law will be decided not by “a dutchman. [himself?] only a buginese or javanese blackstone, a minangkabau or balinese grotius, could do this. and might not… that even enhance a national sense of justice, such as euripides inspired among the hellenes?” he mentioned blackstone, grotius and euripides in reference to their works in preserving and developing british, dutch and greek “adat law” respectively. what happened was not exactly like that, because buginese, javanese, minangkabau, balinese and all other “nations” in ex-nei apparently succeeded in 1945 to realize their oath in 1928 to unite as one nation i.e. indonesia; hence, supomo as indonesian blackstone, grotius, or euripides. 52 supomo differentiated between “undang-undang dasar” (dutch: grondwet, german: grundgesetz, english: basic law) and “hukum dasar.” (constitution) he also made references to french terms loi constitutionelle as equivalent to “hukum dasar” and droit constitutionelle as equivalent to “undang-undang dasar.” translating undang-undang dasar 1945 into 1945 constitution, if what one means is the texts, is therefore, according to supomo, incorrect. instead, it should be referred to as 1945 basic law. 53 supomo. bab-bab tentang hukum adat (jakarta: penerbitan universitas, 1962), 3. see, holleman, op.cit. xlii. 54 ibid. 2, 5. a very good example of this stance is demonstrated in a mini-publication by mm. joyodiguno. reorientasi hukum dan hukum adat (jogjakarta: pt. penerbit universitas, 1961). udayana journal of law and culture vol. 02 no.2, july 2018 151 not lead one to a comprehensive understanding of a state’s constitution. instead, one must investigate two things: firstly, how the constitution is practised in real life; and, secondly, the “geistlichen hintergrund”or the spiritual background of the texts, how and in what situation the texts were formulated.55 in this regard, there are two strong arguments posed by supomo on why the emphasis must be on the uncodified constitution. firstly, it is in the uncodified constitution, that “spiritual background,” the spirit of the people, (volkgeist) or national character will be best maintained and preserved, to ensure that the law is always in harmony with the people’s sense of justice.56 secondly, uncodified constitution, on the other hand, will also best ensure that laws are keeping up with the dynamics of societal development so that laws will never be “verouderd” (obsolete) codified constitution, therefore, must be “brief and elastic,” containing only “essential rules that serve as a broad guideline of instructions on how to manage the state and social welfare.”57 finally, for supomo, it is that spirit of the people which is the real constitution of a state, as follows. “what is most important in the governance and life of a state is the spirit, the spirit of the state officials, the spirit of government officials. although the basic law is said to be based upon the spirit of familyhood, (semangat kekeluargaan) when [in fact] the spirit of the state and government officials is that of individualism, (perseorangan) the basic law will mean nothing in practice. on the other hand, although the basic law is imperfect, if the spirit of the officials is good, [i.e. that of familyhood] that [imperfect] basic law will not be an obstacle in the running of the state. spirit, therefore, is the most important thing, the spirit that lives, or is, in other word, dynamic.”58 from this point on can one only depart to supomo’s later ideas on the development of indonesian national legal system; otherwise, one will be lost. indeed, in 1947 he proposed unification for modern indonesian national law; which was “surprising” because it was almost like a sacrilege to adat law scholarship. however, this ‘sacrilege’ has in fact been done later in the elucidation to 1945 basic law. in other words, if one examines supomo’s ideas in the elucidation, any development in his later thoughts is no surprise at all. for instance, on an occasion of “southeast asia conference” in washington on 14 august 1952, he presented a paper titled “the future of adat law in the reconstruction of indonesia,” where he provided the following explanation concerning the situation of adat law in colonial times. “adat laws are non-statutory laws most of which are customary laws and a small part of islamic law. adat laws also include case laws based on judges’ decisions 55 dpa ri. op.cit. 53. 56 holleman, j.f. op.cit. 260. 57 dpa ri. op.cit. 55. on the relation between adat law, state and social welfare, see also mm joyodiguno. op.cit. 14. 58 dpa ri. op.cit., 56. italic by me. here supomo made a reference to his speech on 31 may 1945 regarding the spirit of familyhood. 152 positioning adat law in the indonesia’s legal system: historical discourse and current development on customary law bono budi priambodo that contain legal principles applicable in respective jurisdictions. adat law finds it roots in traditional culture. adat law [therefore] is a living law, because it is an actual manifestation of people’s sense of justice. according to its own inner quality, adat law continually in a state of growth and development just like the life itself.”59 these ideas were later elaborated in a posthumous mini publication in1959 titled “the status of adat law in the future,” where supomo proposed the following “to avoid confusion” between adat laws understood during colonial times and how the term should be understood in independent indonesia. “the term “adat law” shall be used as a synonym of (i) non-statutory law in legislative rules, (ii) case laws from judges’ decisions, (iii) laws that live as conventions among state organs, [and] (iv) laws that live as customary rules preserved in the life interaction both in cities and villages. these are all adat law.”60 figure1. constitution of indonesia according to supomo if all these information are taken together, we can conclude how indonesian constitution ought to be, according to supomo. first, just like an adat legal system would be,61 it mostly is an unwritten constitution; although a small part of it is a “brief and elastic” written basic law that will be detailed further, where necessary, in statutory laws or legislation. complementing, or rather, as the major part of the constitution are unwritten or uncodified laws, as follows. 1. convention, or the “living” constitution i.e. customs that emerge and develop within the interactions between state organs or official. this will complement—or rather, crystalize into—the written basic law. 2. non-statutory laws i.e. customs that emerge and develop from interactions among administrative organs as well as between them and the people in realizing state purposes. this will complement the statutory laws or legislation. 59 supomo. “the future of adat law in the reconstruction of indonesia,” in southeast asia in the coming world, ed. philip warren thayer (baltimore: john hopkins univesity press, 1957). 60 supomo. kedudukan hukum adat di kemudian hari (jakarta: pustaka rakyat, 1959), 29-30. 61 otje salman soemadiningrat. op.cit., 125. on this he commented, “because of [supomo’s] eagerness to preserve the genuine indonesian characteristics…” udayana journal of law and culture vol. 02 no.2, july 2018 153 3. case laws i.e. judge’s decisions that contain legal principles applicable in their respective jurisdictions. 4. customary laws i.e. laws that live as customary rules preserved in the life interaction among the people. most importantly, it is in these uncodified laws the spirit of the people— that might be formulated as (i) familyhood principle (asas kekeluargaan) or communal-mutualism; (gotong-royong) and, (ii) consultative basis (dasar permusyawaratan)62 —will live, be nurtured and flourish, because the spirit— and, therefore, the law—must live dynamically. 2.4. national land law is adat law in a speech titled “the rediscovery of our revolution” to commemorate the independence day of indonesia on 17 august 1959, president soekarno asserted the following. “likewise, pertaining to land. we inherited from dutch [colonial] era several things that we must eradicate, among others, what is known as eigendom (ownership) over land. from now on we delete completely eigendom over land from indonesian land law. it is unjustifiable, in independent indonesia, a plot of land is owned by foreigners in casu dutch! we only recognize ownership over land by indonesians, in accordance with article 33 of the 1945 [basic] law.”63 the next year i.e. on 24 september 1960 the bal was enacted, stipulating that national agrarian law is based on adat land law and agrarian law applicable to land, water and air space is adat law;64 because it is adat law, as the autochthonous law of indonesians, that is “conformable with the legal sense of common people,” and “because most indonesia people are subject to adat law.”65 budi harsono’stheories concerning “the communalist-religious concept of adat (land) law”66 and “functional relation between adat law and national land law”67 might be best to help us fully understand the intention of those stipulations. to build his theories, budi harsono firstly calls to attention that adat law manifests in two features i.e. (i) a set of unwritten positive norms; and, (ii) legal concepts and principles which are the manifestation of people’s legal awareness.68 he admitted that as legal norms adat law comes in a variety of contents, “however it is mainly confined to the fields of family and inheritance law.” on the other hand, “in the field of land law basically 62 iman sudiyat, op.cit., 101. 63 dpa ri. op.cit., 126. 64 see section 1.1 65 bal. penjelasan umum, iii. 1. a. 66 budi harsono. hukum agraria indonesia. sejarah pembentukan undangundang pokok agraria, isi dan pelaksanaannya. jilid 1 hukum tanah nasional.cet. ix. (jakarta: djambatan, 2003), 181. 67 ibid., 204. this part indeed is dedicated to discussing budi harsono’s theories concerning these topics. 68 ibid. 179. see also section 2.2., notice the close similarities between this argument with that of mohammad kusnu’s. 154 positioning adat law in the indonesia’s legal system: historical discourse and current development on customary law bono budi priambodo there is uniformity, because [it] manifests from the same legal concepts and principles.” this, therefore, opens an opportunity for unification based on the adat land law.69 based on this argument, budi harsono builds his theory of “functional relation.” adat law—whichis claimed by bal as the basis,even the very national land law itself—actually is the “main source” of national land law, in a sense that national land law is developed from the concepts and principles of adat law; while adat law in the form of norms serves as complement to positive national land law.70 after clarifying this point, budi harsono proceeded to the theory of “adat law concept” that he understood as a “communalist-religious” concept that “allows individual control over land based on individual rights, while at the same time contain communal elements.”71 the land is understood as the gift from the almighty god, in the first place, to the people as a unity, to subsequently be used individually by the members of the community. it is this legal relation—that forms between the people as a unity and their land—that is understood as hak ulayat or right of allocation. the right of allocation has two aspects, as follows; (i) private aspect, where land is the communal property of all members of a community, every individual from later generations to future generations; and, (ii) public aspect, where in owning communally the land there is an authority or competence to “manage, govern and organize control, maintenance, allocation and use.”72 the authority of a public nature occurring from the right of allocation construction is basically in the hand of the community as an entity. however, its day-to-day exercise is entrusted to adat chiefs or adat elders as legal functionaries.73 this authority is solely and entirely public in nature i.e. “does not cover and influence the legal relations to the communal land of a private nature.” ownership over communal land, with the exercise of authority by the legal functionaries, stays in the hand of the community as an entity and individual members of the community, and does not transfer to adat chiefs or adat elders.74 69 ibid. 180. see also section 2.2, notice the close similarities between this argument with that of supomo’s. the relevance of customary inheritance law is evident in legal, social, and cultural problems faced by various ethnic groups in indonesia. regarding contemporary customary inheritance law of besemah, see dewi sukarti, “customary law of inheritance and migration: adoption of the old regime or adaptation to the new one?” ahkam 17, no. 2 (2017). see also a non-mainstream views on the balinese women’s right to inherit in hanna christine ndun, sarah suttor, and i gusti agung ayu dike widhiyaastuti, “does customary law discriminate balinese women’s inheritance rights?.” udayana journal of law and culture 2, no. 1 (2018): 97-114. 70 ibid., 205-206. 71 ibid., 181. 72 ibid., 182. 73 ter haar .b. asas-asas dan susunan hukum adat. transl. subakti pusponoto. (jakarta: pradnja paramita, 1985), 275. on adat chief and adat elders as legal functionaries, see also keebet von bendabeckmann, “forum shopping and shopping forums: dispute processing in a minangkabau village in west sumatra.” journal of legal pluralism 13, no.19 (1981):131. 74 budi harsono. op.cit, 182-183. udayana journal of law and culture vol. 02 no.2, july 2018 155 figure2. application of adat land law concept to national land law based on this concept, “adat land law contains legal stipulations that belong to private land law and administrative land law,” that result to “a structure and hierarchy of rights over land in adat law” as follows. 1. communities’ right, “as the highest right to control, having both private and public aspects.” 2. rights of legal functionaries, “that originate from the public aspect of communities’ right.” 3. individual rights of community members, which are entirely private in nature.”75 if this adat land law concept is applied to national land law, the resulting systematics of land rights shall be as follows.76 75 ibid., 183. 76 ibid., 208-209. 156 positioning adat law in the indonesia’s legal system: historical discourse and current development on customary law bono budi priambodo 1. the right of the nation; as the highest right to control over the entire territory of the unitary republic of indonesia, having both private and public aspects.77 2. state’s rights to control; that originate from the right of the nation which covers only its public aspect.78 3. individual rights of indonesian citizens, which are entirely private in nature.79 these unique concepts are indeed difficult to comprehend from a “western”80 point of view that understands land as a mere production factor or commercial commodity.thorburn perhaps is a rare example of western observers who manages to comprehend the concepts as they are. by grasping the two fundamental concepts of (i) inalienability of land from the people; and, (ii) the social function of land, he understands that the vision of indonesian land law is that where all indonesian citizens as an entity of “national community” communally own the territory of the unitary republic of indonesia along with all natural resources therein as “national ulayat right,”81 while the state of the republic of indonesia act as the legal functionary—or, in the wordings of bal, “the organization of the people’s sovereignty”—in managing, governing and organizing its control, maintenance, allocation and use.82 the development in the recent decade shows interesting progress. academic and political debates on the issue of ownership over communal land was ultimately addressed in a legal context, following the judicial review of indonesian foresty law before the constitutional court of the republic of indonesia, as requested by aliansi masyarakat adat nusantara (aman; nusantara indigenous people alliance) et.al.83 the petition contends that the inclusion of hutan adat (customary forest) within hutan negara (state forest) area was unconstitutional.84 the constitutional court considers that hutan adat must be categorized as that of hutan hak (forest subject 77 bal, art. 1. 78 bal, art. 2. 79 bal, art. 4. 80 the term “western” here actually is only a reference to the dichotomy in classic adat law discourse between “adat” or “orient” and “western”. in fact, what is termed as “western” here is more correct if understood as “liberal capitalist.” on this, see, for example, david bourchier, “the romance of adat in the indonesian political imagination and the current revival,” in the revival of tradition in indonesian politics: the deployment of adat from colonialsm to indigenism, ed. jamie s. davidson and david henley (oxon, new york: routledge, 2007), 114. 81 craig c. thorburn, “a long row to hoe: decentralization, reformasi, and land management policy in indonesia,” asia pacific viewpoints 45, no. 1 (2004); 35-37. the notion “state ulayat right” which fitzpatrick claimed as other name for state’s right of control is therefore incorrect. see daniel fitpatrick, “beyond dualism: land acquisition and law in indonesia” in indonesia law and society, ed. tim lindsey, fully revised and expanded 2nd edition. (singapore: the federation press, 2008), 236. the fact that there are practices of unconsented land acquisition by government does not necessarily mean that such conducts are theoretically and legally justifiable. 82 bal, art.2.1. 83 decision of the constitutional court of the republic of indonesia, no. 35/puu-x/2012, para 1.2. 84 mirza satria buana,ph.d diss, op.cit., 98. udayana journal of law and culture vol. 02 no.2, july 2018 157 to right) instead of hutan negara.85 in its ruling, the constitutional court has declared as invalid the indonesian government’s claim to millions of hectares of forest land, potentially giving indigenous and local communities the right to manage their customary forests.86 this landmark ruling was unanimously decided by all (nine) judges, without any single dissenting opinion. although this decision was considered ‘a win’ for customary community advocates, the court was also criticized as it has left substantial legal stumbling blocks in the way of most traditional communities seeking to enjoy the traditional rights to which they are constitutionally entitled.87 as previously described in section 1.1, second amendment of the 1945 basic law, basic agrarian law, and forestry law have recognized traditional rights of jural communities in indonesia, including, inter alia, the so-called hak ulayat (beschikkingsrecht; right of allocation). such right has also given a human rights character as it is stipulated in indonesia human rights law.88 the 2016 regulation of minister of agrarian affairs made a progress in terms of the rights to the land of jural community.89 it admits that jural community—that has fulfilled specific requirements—may be entitled to land rights in the form of communal rights.90 this regulation makes clear that there is no individual claim made by a member of a jural community as communal rights to land is defined as a collective/common property rights over jural community lands.91 budi harsono’s statement that bal is the “first product” of the development of national [land] law that uses the ingredients of adat law, that “[is] formulated in the structure and system of adat law,”92 is particularly noteworthy. this statement implied that other fields of law, both related or not to land law, can be formulated according to the system of adat law, and that they are only waiting for their turns! suryono sukanto also has the same conviction. he criticized that ethnological, anthropological and sociological—and, corollary, inductive—approaches are recommended for adat law jurisprudence, only when adat law is understood as the 85 ibid., para 3.13.4. mia siscawati, (“overview of forest tenure reforms in indonesia,” working paper 223, bogor barat: center for international forestry research (cifor), 2017: 10 however, understands hutan hak as “private forest” hutan negara as “state forest.” 86 rhett a. butler, “in landmark ruling, indonesia’s indigenous people win right to millions of hectares of forest” may 17, 2013 <https://news.mongabay.com/2013/05/in-landmark-ruling-indonesias-indigenous-people-win-right-to-millions-of-hectares-of-forest/> 87 simon butt, ‘traditional land rights before the indonesian constitutional court’, law, environment and development journal 10, no.1 (2014): 57. 88 law no. 39 year 1999 concerning human rights, art. 6. 89 regulation of minister of agrarian and spatial affairs / head of the national land agency of the republic of indonesia number 10 year 2016 concerning the procedures for the establishment of communal rights on jural communities’ land and communities that are in specified area. 90 ibid., arts. 2 (1) and 3(1). 91 ibid., art. 1. 92 budi harsono, op.cit., 208. 158 positioning adat law in the indonesia’s legal system: historical discourse and current development on customary law bono budi priambodo “living law”93 i.e. law that “lives” among the people—or, in other words, customary law. for suryono sukanto, a normative-deductive approach is also necessary to achieve completeness in a more sophisticated systematics of law, that covers (i) public laws and private laws; and, (ii) substantial laws and procedural laws.94 besides, by summoning the help of ter haar’s decision theory—that adat law may originate from both the decisions of legal functionaries and community members as well, and that the decisions of legal functionaries pertain to public interests so they are imperative in nature, while the decisions of community members pertain to private interests so they are facultative in nature—he argued that “it is certain that [division into public laws and private laws] is applicable to adat law as well.” 95suryono sukanto, therefore, includes “hukum tantra” or staatsrecht that consists of constitutional and administrative law in his systematics of law, “at least, as a jurisprudence. [i.e. adat law jurisprudence]”96 in fact, if that is suryono sukanto’s actual intention—breaking through traditional and conventional obstacles of adat law jurisprudence to use it as ingredients in developing the national legal system—then bal and budi harsono have succeeded brilliantly to a very great extent. bal, supported by budi harsono’s theoretical justification, has managed to extrapolate and transcend adat law to a higher and wider plane i.e. the national legal system of indonesia. unique categories of adat law i.e. (i) the communalist-religious concept of adat law, that transcends into a national communalist-religious; and, (ii) the role and status of legal functionaries in a jural community; are proven to be potential in developing legal theories that is uniquely indonesian, and, most importantly, in harmony with the worldview of indonesians. pertaining to constitutional and administrative law, the theory of the role and status of indonesian state in an indonesian national community that is parallel with the role and status of legal functionaries in their concerning communities— that is formulated by bal as the “organization of people’s sovereignty”—may serve as a starting point to build legal theories and practices in the fields of constitutional and administrative law that are uniquely indonesian, in accordance with the needs of indonesian national community. furthermore, should indonesian lawyers genuinely and sincerely wish to do so, adat law—as the “aseli” (autochthonous) law of indonesians, as demonstrated by bal—provides more than enough inspiration and ingredients to build indonesia’s own national legal system and theories. 93 franz von benda-beckmann and kebet von benda-beckmann, “the social life of living law in indonesia” in living law. reconsidering eugen ehrlich, ed. marc hertogh (oxford, portland: hart publishing, 2009), 180. 94 surjono sukanto. op.cit. 120-121. in this regard, suryono sukanto also does not directly rebut supomo’s (1962) theory that adat law does not recognize a distinction between public laws and private laws vide supomo. (1962) op.cit., 2-3. 95 surjono sukanto. op.cit. 121. 96 ibid., 122. he even went as far as dedicating a separate discussion on “hukum negara” or staatsrecht under the chapter “adat law: an analytical description” vide ibid. 137-163. udayana journal of law and culture vol. 02 no.2, july 2018 159 3. conclusion from the very beginning, adat law scholarship had a pragmatic purpose i.e. to administer justice and govern the colony, the nei. hence, its very nature was public, which is in contrast with its later development that focused on private law fields such as the law of persons, marriage and family laws, property and inheritance laws. due to this later development, particularly after world war two and in postindependence indonesia, the relation between adat law and public laws was obscured. in fact, the 1945 constitution main architect was indonesia’s leading adat law scholar, supomo—hence, the constitution is, to say the least, heavily inspired by adat law. it is not exaggerating at all to say that one can never comprehend the constitution without sufficient insight on adat law. in other words, indonesian constitution is actually an “adat” constitution. the same goes to administrative law, which in this case is represented by bal that governs not only land administration, but all kinds of natural resources in indonesia until nowadays. just like the 1945 constitution, one will surely fail miserably to understand this law should one does not have an acceptable command of adat law. it is, however, must be quickly added that, in doing so, a clear distinction must be made between adat law and adat laws, with the former refers to theories and concepts resulting from deductive examination of findings in research concerning the laws that actually live among the people, while the latter is the multitude laws that actually live among the multitude people of indonesia themselves. failure in understanding this difference will certainly mislead one to understand the true and actual position of adat law in indonesia’s national legal system. 160 positioning adat law in the indonesia’s legal system: historical discourse and current development on customary law bono budi priambodo bibliography book bourchier, d. illiberal democracy in indonesia:the ideology of the family state. london: routledge, 2015. burns, peter. the leiden legacy. concepts of law in indonesia. leiden: kitlv press, 2004. bushar muhammad. asas-asas hukum adat. suatu pengantar. ed. ix. jakarta: pradnja paramita, 1994. dewan pertimbangan agung ri. tudjuh bahan pokok indoktrinasi. jakarta: dpa ri, 1961. elson, robert edward. the idea of indonesia. a history. cambridge: cambridge university press, 2008. harsono, budi. hukum agraria indonesia. sejarah pembentukan undangundang pokok agraria, isi dan pelaksanaannya. jilid 1 hukum tanah nasional. cet. ix. jakarta: djambatan, 2003. holleman, j.f. 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(1992) risalah sidang badan penyelidik usaha-usaha persiapan kemerdekaan dan panitia persiapan kemerdekaan indonesia. jakarta: sekretariat negara ri. case law constitutional court of the republic of indonesia decision no. 35/puu-x/2012. website content ompusunggu, moses, ‘adat’ communities want their own special law: why?, the jakarta post, may 11, 2018. vol. 03, no. 1, january 2019, pp. 30-52 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3028 e-issn 2549-068 30 addressing global and national concerns into local actions: reflecting customary institution’s involvement in combating drug abuses anak agung ngurah wirasila*1 faculty of law udayana university, bali-indonesia jana takáčová** faculty of law, comenius university, bratislava-slovakia article received: 30th december 2018; accepted: 28th january 2019; published: 31st january 2019 abstract the massive movement of transnational drug-dealers has now been approaching society at the lowest level. this article is aimed at exploring how customary institution in bali-indonesia, namely desa pakraman (customary village) is involved in any efforts of combating drug abuse, as a complementary means of the official measures taken by indonesian agencies that responsible for this matter. it is legal research that inquiries relevant legal documents. besides, it discovers customary village leaders opinion by using informant interview questionnaires as well as impression obtained from direct observation. this paper discovers that there have been many customary villages modified their customary rule by incorporating the norms on prohibition of the use and sale of narcotics as well as adopted customary sanction to be imposed on those who violate it. this article also suggests that the involvement of customary institution may be used as a lesson learned regarding how the non-state actors, especially a community-based institution, may play a role to support the government in the eradication of drug abuses and crimes. keywords: drug abuses; combat; customary institution; village how to cite (chicago-16th): wirasila, anak agung ngurah, and jana takáčová. "addressing global and national concerns into local actions: reflecting customary institution’s involvement in combating drug abuses." udayana journal of law and culture 3, no. 1, 30-52. https://doi.org/10.24843/ujlc.2019.v03.i01.p02. doi: https://doi.org/10.24843/ujlc.2019.v03.i01.p02 * email/corresponding author: ngurah_wirasila@unud.ac.id ** email: jana.takacova55@gmail.com https://ojs.unud.ac.id/index.php/ujlc/issue/view/3028 https://doi.org/10.24843/ujlc.2019.v03.i01.p02 mailto:ngurah_wirasila@unud.ac.id mailto:jana.takacova55@gmail.com addressing global and national concerns into local actions: reflecting customary institution’s involvement in combating drug abuses anak agung ngurah wirasila and jana takáčová 31 1. introduction 1.1. background “bali is currently in an emergency situation of drug abuse!” this statement was repeatedly spoken by government officials, politicians, and activists.2 it is, of course, not a surprising fact as data shows an increasing number of drug cases in bali. this can be seen from the increasing trend of 120 percent drug cases in denpasar, the capital of bali in 2018, comparing to the year of 2017. 3 besides, the integrated service center for the protection of women and children discovered that it handles cases in which 70 percent of them are about drugs, and the most common case is that children become drug couriers.4 these facts strengthen the general opinion that the more bali opens for global tourism, the more risk of negative impact of tourism and transnational activities, such as drugs circulation, would potentially endanger the locals. the national government, especially through the national antinarcotics agency of the republic of indonesia (badan narkotika nasional/bnn), has made a set of efforts to overcome this problem. this including some criminal law enforcement measures that have been taken to perpetrators. some severe types of the sentence imposed on the perpetrators, including a death penalty, in facts, do not effectively decrease the numbers of drug abuse. the government then looks at some alternative approaches in complementing its programs. one of the alternative approaches used by the bnn is to make a collaboration with a religious organization in disseminating that drug abuse is a behavior that contrary to religious values. in 2017, bnn published a book that describes the hindu religious views about the dangers of drug abuse by citing hindu holy books of bhagavadgita and sarasamuscaya.5 in line with this efforts, a balinese-hinduism leader also expressed his views that according to hindu belief, the drug can be classified as a poison that 2 bali darurat narkoba? 1.488 desa diminta bentuk perarem narkoba. tribunbali.com. last modified august 22, 2017. http://bali.tribunnews.com/2017/08/22/balidarurat-narkoba-1488-desa-diminta-bentuk-perarem-narkoba 3 busrah ardans, angka kasus narkoba di denpasar naik 120 persen, ini penjelasan pihak polda bali. tribun bali.com. last modified august 16, 2018. http://bali.tribunnews.com/2018/08/16/angka-kasus-narkoba-di-denpasar-naik-120persen-ini-penjelasan-pihak-polda-bali 4i wayan erwin widyaswara, peredaran narkoba di bali kian mengkhawatirkan, anak-anak jadi kurir narkoba, tribun bali.com. last modified july 31, 2018. http://bali.tribunnews.com/2018/07/31/peredaran-narkoba-di-bali-kianmengkhawatirkan-anak-anak-jadi-kurir-narkoba 5 i putu suhartama and bnn team. pandangan agama hindu tentang bahaya penyalahgunaan narkoba. (jakarta: deputi bidang pencegahan badan narkotika nasional, 2017), 22-27. http://bali.tribunnews.com/2017/08/22/bali-darurat-narkoba-1488-desa-diminta-bentuk-perarem-narkoba http://bali.tribunnews.com/2017/08/22/bali-darurat-narkoba-1488-desa-diminta-bentuk-perarem-narkoba http://bali.tribunnews.com/2018/08/16/angka-kasus-narkoba-di-denpasar-naik-120-persen-ini-penjelasan-pihak-polda-bali http://bali.tribunnews.com/2018/08/16/angka-kasus-narkoba-di-denpasar-naik-120-persen-ini-penjelasan-pihak-polda-bali http://bali.tribunnews.com/2018/07/31/peredaran-narkoba-di-bali-kian-mengkhawatirkan-anak-anak-jadi-kurir-narkoba http://bali.tribunnews.com/2018/07/31/peredaran-narkoba-di-bali-kian-mengkhawatirkan-anak-anak-jadi-kurir-narkoba udayana journal of law and culture vol. 3 no. 1, january 2019 32 can kill persons, in which the user may lose his/her character and identity as a human being.6 another unique alternative approach is to involve desa pakraman (hereinafter refer to as customary village) to work hand in hand with the government to address this issue. in july 2018, a customary village, desa pakraman jelekungkang, taman bali, bangli regency was declared as ‘a drugs clean area’ by the republic of indonesia state police, bangli police resort. this customary village is one of the religious-tourism villages that was appreciated for its community commitment to fight drug trafficking.7 an extreme idea stated by head of jembrana regency i putu artha. he did not only urge customary village to include drug abuse into the rule of the customary village but also proposed that the drug abuser must be imposed a sanction of kasepekang, a kind of exclusion, as an ultimum remedium punishment recognized by bali customary law.8 the enactment of regulation of bali province number 7 of 2017 concerning facilitation of prevention of narcotics abuse intentionally includes customary village as one of the main pillars in preventing narcotics abuse in bali. in addressing this issue, through this regulation, customary village is expected to participate in a series of community empowerment as well as collaborate with the government in addressing this issue. a legal issue arises as this regulation enable governor to advice customary villages in bali to transform the legal content of drug prevention into their customary rules called awig-awig and perarem. these customary rules are made by and applied to the customary community in a certain village in bali that, in facts, exist along with national law adopted by the official government. it is a unique situation in which the customary village members have to obey both customary rules and official laws made by indonesian governments, due to facts that members of the customary community are also a citizen of indonesia. the intention to insert drug prevention into awig-awig and perarem was widely expressed even before the provincial regulation was created. head of 6 phdi jembrana dukung penyalahgunaan narkotika masuk peraturan adat. antaranews.com. last modified october 3, 2018. https://bali.antaranews.com/berita/132558/phdi-jembrana-dukung-penyalahgunaannarkotika-masuk-peraturan-adat 7 penetapan desa pakraman jelengkung sebagai desa bersih narkoba. balitribune.co.id. last modified october 3, 2018. http://balitribune.co.id/content/penetapan-desa-pakraman-jelengkung-sebagai-desabersih-narkoba 8 phdi jembrana dukung penyalahgunaan narkotika masuk peraturan adat. antaranews.com. last modified october 3, 2018. https://bali.antaranews.com/berita/132558/phdi-jembrana-dukung-penyalahgunaannarkotika-masuk-peraturan-adat and mantap! dua kilogram sabu dan ribuan pil koplo dimusnahkan kejari jembrana. baliberkarya.com. last modified september 28, 2018. https://baliberkarya.com/index.php/read/2018/09/28/201809280003/mantap-duakilogram-sabu-dan-ribuan-pil-koplo-dimusnahkan-kejari-jembrana.html https://bali.antaranews.com/berita/132558/phdi-jembrana-dukung-penyalahgunaan-narkotika-masuk-peraturan-adat https://bali.antaranews.com/berita/132558/phdi-jembrana-dukung-penyalahgunaan-narkotika-masuk-peraturan-adat http://balitribune.co.id/content/penetapan-desa-pakraman-jelengkung-sebagai-desa-bersih-narkoba http://balitribune.co.id/content/penetapan-desa-pakraman-jelengkung-sebagai-desa-bersih-narkoba https://bali.antaranews.com/berita/132558/phdi-jembrana-dukung-penyalahgunaan-narkotika-masuk-peraturan-adat https://bali.antaranews.com/berita/132558/phdi-jembrana-dukung-penyalahgunaan-narkotika-masuk-peraturan-adat https://baliberkarya.com/index.php/read/2018/09/28/201809280003/mantap-dua-kilogram-sabu-dan-ribuan-pil-koplo-dimusnahkan-kejari-jembrana.html https://baliberkarya.com/index.php/read/2018/09/28/201809280003/mantap-dua-kilogram-sabu-dan-ribuan-pil-koplo-dimusnahkan-kejari-jembrana.html addressing global and national concerns into local actions: reflecting customary institution’s involvement in combating drug abuses anak agung ngurah wirasila and jana takáčová 33 the head of the empowerment of society and village government, bali province ketut lihadnyana agreed if the bnn involved village officials for drug prevention. he reflected successful government program, namely family planning, that approach local content have involved customary villages.9 in facts, there has been a successful program namely village free from narcotics, initiated by bnn. the cooperation between bnn and customary village was supported by governor of bali.10 in 2017, some 42 customary villages in badung regency have incorporated the anti-narcotics provisions into their perarem.11 recently, as of november 2018, there have been 16 customary villages in gianyar regency that created anti-narcotics perarem.12 the perarem of banjar adat sampiang, gianyar regency can be used as an example article 72 (8) of this perarem explicitly prohibits its members or other people are prohibited to keep, use and circulate drug. those who violate this rule can be fined idr 500.000 (currently, equivalent to us$ 35) and conduct prascita gumi ceremony, following the guidance of the sulinggih (hindu-bali priest).13 there are two issues that appear in the current situation. first of all, there are two entities, namely the state of indonesia as represented by national and local governments as well as bnn and the customary institution, that may be joining in addressing the drug abuse. the second issue is there are two different legal systems, namely the state law (of indonesia) and customary law (of bali) that will be used as instruments to overcome drug abuse. the formal national and local law and regulations, issued by authoritative state organs and officials, have already been existed but remaining not fully effective yet.14 if looking back at the history, before 9 bali darurat narkoba? 1.488 desa diminta bentuk perarem narkoba. tribun bali.com. last modified august 22, 2017. http://bali.tribunnews.com/2017/08/22/balidarurat-narkoba-1488-desa-diminta-bentuk-perarem-narkoba 10 perarem anti narkoba persempit ruang gerak pengedar di desa pekraman. beritabali.com. last modified november 15, 2018. https://beritabali.com/read/2018/11/15/201811150015/perarem-anti-narkobapersempit-ruang-gerak-pengedar-di-desa-pekraman.html 11 suyatra, i putu. sudah 42 desa di badung masukkan narkoba ke awig-awig dan pararem. baliexpress.jawapos.com. last modified november 22, 2017. https://baliexpress.jawapos.com/read/2017/11/22/28579/sudah-42-desa-di-badungmasukkan-narkoba-ke-awig-awig-dan-pararem 12 nusa bali. bnn resmikan 7 desa bebas narkoba dan 16 perarem anti narkoba di gianyar. skanaa.com. last modified november 16, 2018. https://www.skanaa.com/en/news/detail/bnn-resmikan-7-desa-bebas-narkoba-dan-16perarem-anti-narkoba-di-gianyar/nusabali 13 i made sumada, op.cit, 513 and 10 desa pakraman ditarget punya pararem anti narkoba. nusabali.com. last modified june 23, 2018. https://www.nusabali.com/berita/32557/10-desa-pakraman-ditarget-punya-pararemanti-narkoba 14 suhendi adi. hukum adat lebih ditakuti warga bali dibanding hukum positif. tribunnews.com. last modified march 6, 2014. http://www.tribunnews.com/nasional/2014/03/06/hukum-adat-lebih-ditakuti-wargabali-dibanding-hukum-positif http://bali.tribunnews.com/2017/08/22/bali-darurat-narkoba-1488-desa-diminta-bentuk-perarem-narkoba http://bali.tribunnews.com/2017/08/22/bali-darurat-narkoba-1488-desa-diminta-bentuk-perarem-narkoba https://beritabali.com/read/2018/11/15/201811150015/perarem-anti-narkoba-persempit-ruang-gerak-pengedar-di-desa-pekraman.html https://beritabali.com/read/2018/11/15/201811150015/perarem-anti-narkoba-persempit-ruang-gerak-pengedar-di-desa-pekraman.html https://baliexpress.jawapos.com/read/2017/11/22/28579/sudah-42-desa-di-badung-masukkan-narkoba-ke-awig-awig-dan-pararem https://baliexpress.jawapos.com/read/2017/11/22/28579/sudah-42-desa-di-badung-masukkan-narkoba-ke-awig-awig-dan-pararem https://www.skanaa.com/en/news/detail/bnn-resmikan-7-desa-bebas-narkoba-dan-16-perarem-anti-narkoba-di-gianyar/nusabali https://www.skanaa.com/en/news/detail/bnn-resmikan-7-desa-bebas-narkoba-dan-16-perarem-anti-narkoba-di-gianyar/nusabali https://www.nusabali.com/berita/32557/10-desa-pakraman-ditarget-punya-pararem-anti-narkoba https://www.nusabali.com/berita/32557/10-desa-pakraman-ditarget-punya-pararem-anti-narkoba https://www.nusabali.com/berita/32557/10-desa-pakraman-ditarget-punya-pararem-anti-narkoba https://www.nusabali.com/berita/32557/10-desa-pakraman-ditarget-punya-pararem-anti-narkoba http://www.tribunnews.com/nasional/2014/03/06/hukum-adat-lebih-ditakuti-warga-bali-dibanding-hukum-positif http://www.tribunnews.com/nasional/2014/03/06/hukum-adat-lebih-ditakuti-warga-bali-dibanding-hukum-positif udayana journal of law and culture vol. 3 no. 1, january 2019 34 the law of the republic of indonesia no.9 year 1976 concerning narcotics was enacted that clearly establish crime of narcotics, the criminalization for drug abuser or dealers used to refer to article 204 of the indonesian criminal code) that punish those who sells, offers for sale, delivers or distributes goods, knowing that they are harmful to life or to health and conceals said harmful nature. after the law of the republic of indonesia no. 35 the year 2009 concerning narcotics was enacted, in which the crime on narcotics have been further advanced, some norms contained in indonesian criminal code regarding participation in punishable acts, such as article 55 (penyertaan /deelneming) and article 56 on aiding (pembantuan/medeplichtigheid), were still used. the existence of those formal laws, again, do not significantly decrease any drug abuses and crimes. therefore, in order to strengthen such formal law, some alternative ideas and measures are tried. one of the alternative ideas, that has already been implemented in practice, was to create customary law that is made by, and applied for, a customary community in bali, which regulates the rule and punishment for any drug abuses. 1.2. purpose the idea behind this writing is to alternate the common perception that views the eradication of drug abuses and crimes are the exclusive domain of state and would only be effectively implemented by government programs and measures as well as international cooperation. besides, this paper would like to reveal that customary law in form of awig-awig and perarem that created and adopted by the customary community may have relevance to strengthen the national law and regulation on narcotics eradication. therefore, this article aims to analyze the needs to use an alternative approach to combating drug abuse. in particular, it explores how customary institution in bali-indonesia, namely desa pakraman (customary village) may be involved in any efforts of eradicating drug abuse, as a complementary means to support measures taken by indonesian agencies that responsible for this matter. 1.3. method the present article is legal research that inquiries legal documents on the topic discussed. it analysis some indonesian legislation at the national and local level besides law and regulation of other countries, as a comparison, and international instruments. some primary information was obtained from the informant interview questionnaire circulated to some customary village leaders (bendesa and klian) in bali between novemberdecember 2018. the result of questionnaires showed the knowledge, perception, expression, and expectation of customary village leaders regarding the efforts to combat drug abuse in general and in a specific issue addressing global and national concerns into local actions: reflecting customary institution’s involvement in combating drug abuses anak agung ngurah wirasila and jana takáčová 35 that is the involvement of the customary community.15 besides, arguments were also built from direct observation by authors. this article is presented by an assumption that local efforts of combating drug cannot be separated from national and global works. therefore, the analysis is begun by firstly exploring the concern of international society in dealing with such all human being threat that can be seen from the creation of international legal instruments, the role of the international organization, and state practices. it will then continued by the description of the indonesian national law and regulation. the central issue of this writing is analyzed in section 2.3. 1.4. literature review in indonesia, the activity of using drugs or narcotics is generally known as nyandu or madat. it should be clarified that this paper does not make a strict definition or the legal or conceptual meaning of specific words and phrases. for example, the term ‘drugs’ and ‘narcotics’ for some experts may be understood differently as well as some legal documents that define those terms in a different way. both ‘drugs’ and narcotics’ are used interchangeably in this article. it also does not specifically focus on one issue among several steps or measures in overcoming drug problems, for example, pre-emption, prevention, repression, criminalization, rehabilitation, or social reintegration. this article is intentionally intended to explore how wide the customary community may be involved in addressing the issue of drug abuse. studies show that the local community would be given a role in the process of social rehabilitation for those who have been rehabilitated. to achieve a major goal is to integrate a person into society, it is the responsibility for organizing rehabilitation programmes falls primarily on the social and welfare authorities and voluntary associations in the local community 16 muhamad amin imran studies the functional relationship between bnn and lembaga kemasyarakatan (correctional institutions/penitentiary) in dealing with the issue of narcotics at correctional facilities.17 the reality is that the existence of the memorandum of understanding (mou) that has been established at the national level does not have a positive impact on the sustainability of agency cooperation in the prevention and eradication of 15 list of informant is provided in section 2.3.3 16 bror rexed, ken edmondson, inayat khan, and robert j. samsom. "guidelines for the control of narcotic and psychotropic substances: in the context of the international treaties." (geneva: who, 1984), 107 17 muhamad amin imran, hubungan fungsional badan narkotika nasional dengan lembaga pemasyarakatan dalam penanganan narkotika di lembaga pemasyarakatan. jurnal ius-kajian hukum dan keadilan 1, no. 2 (2013): 327-345. udayana journal of law and culture vol. 3 no. 1, january 2019 36 illicit drug trafficking in the regions.18 this suggested by a recent empirical study that was conducted by risa andika sari et.al that analyze the integrated prevention and suppression efforts of drug abuses at the penitentiary, by observing two correction facilities in the province of aceh, indonesia. 19 the research suggested that such efforts have not been optimally worked, as there is no synergic relationship between related institutions (correction institution, police and bnn) as they did not establish good communication and coordination.20 besides, some obstacles were faced with e.g information leakage, the involvement of officers, criminal procedures, lack of budget and infrastructure.21 a study focuses on decriminalization policy to decrease the number of victims of drug abuse.22 it concluded that such policy programs have not been effective in breaking the chain of drug circulation in indonesia due to some factors, e.g. a very long coastline of indonesia that leads to inability of bnn to perform surveillance, especially at small ports and lack of law enforcement.23 restiana pasaribu conducting research concerning the strengthening of the community to fight narcotics by specifying its research on community policing in semarang. she considers that community policing serves as one of the strategies in using the preemptive and preventive approach in the handling of crime. however, in one spot she discovered that the works of bhayangkara pembina keamanan dan ketertiban masyarakat (bhabinkamtibmas) seems not so optimal yet due to concerns of structural, resources, budget, and cultural aspects.24 research carried out by i made sumada25 discusses the quite similar topic with the present article. it focuses on the issue of the collaboration between the national narcotics agency's policy with perarem of the customary village in bali in handling drug abuse.26 18 risa andika sari, suhaimi, and muazzin. "upaya terpadu pencegahan dan pemberantasan penyalahgunaan peredaran gelap narkotika di lapas klas ii a banda aceh dan rutan klas ii b sigli." syiah kuala law journal (sklj) 2, no. 1 (2018):162. 19 ibid, 155-156. 20 ibid, 168-169. 21 ibid, 162-169. 22 haniyah and m. hidayat. juridical review of decriminalization on efforts to cut drugs users’ addiction in indonesia. yurisdiksi: jurnal wacana hukum dan sains 11, no.1 (2018): 3. 23 ibid, 10-11. 24 restiana pasaribu, fight narcotics with community strengthening: crime control management by community policing. journal of indonesian legal studies 3, no.2 (2018): 249. 25 i made sumada, "collaboration policy of regional office of national anti-narcotics agency with local wisdom (perarem desa pekraman) in bali handling drug abuse." in international conference on business, economic, social science and humanities (icobest 2018). atlantis press, 2018: 510-514 26 ibid, 511. addressing global and national concerns into local actions: reflecting customary institution’s involvement in combating drug abuses anak agung ngurah wirasila and jana takáčová 37 2. result and discussion 2.1. global efforts to overcome drug abuse over the last decade, we can see rapid social and economic development which created an appropriate environment for drug abuse in many countries all around the world. it is not a problem of one or two countries, but its nature has turned out to be transnational. it can be simply argued that this transnational problem goes beyond the capacity of the state as national organizations and institutions cannot manage it through its own resources and legal channels. the options that remain at the state’s disposal are either a wider multilateral and global governance approach or covert operations that would be deemed a violation of international law. it now becomes clear that the drug abuse problem has become an international concern. in this regard, some international organizations, primarily the united nations (un), play a role to overcome this problem. as an instance, the united nations office on drugs and crime (unodc) makes an annual report regarding global data related to drugs. the report covers the issue of drug abuse analysis, which also includes the impact on social and economic development as well as a rising threat. according to undoc world drug report 2018, about 275 million people worldwide (5.6 percent of the global population) aged 15-64 years, used drugs at least once during 2016. the world health organization (who) also pays its attention to the problem of drug abuses. who released that around 450,000 people died as a result of drug use in 2015, in which 167,750 of them were directly associated with drug use disorders (mainly overdoses).27 within the un there is also the commission on narcotic drugs that has a mandate, as expanded by the united nations general assembly, to enable it to function as the governing body of the unodc that exercises the administrative and financial functions entrusted to it by the general assembly. the main function of this commission is to approve the programme budget for the fund of the united nations international drug control programme made according to report of unodc. in practice, unodc conducted joint activities to include a human rights-based approach in national drug policy that, among others, strengthening the capacities of communities and promoting the involvement of social actors.28 27 unodoc. executive summary conslusions and policy implications. world drug report 2018. austria: united nations publications, 2018. https://www.unodc.org/wdr2018/prelaunch/wdr18_booklet_1_exsum.pdf 28 unodoc. international cooperation against the world drug problem report of the secretary-general to the united nations general assembly a/73/135. united nations publications, 1999. https://www.unodc.org/documents/commissions/cnd/drug_resolutions/19901999/1999/ecosoc_res-1999-30.pdf https://www.unodc.org/wdr2018/prelaunch/wdr18_booklet_1_exsum.pdf https://www.unodc.org/documents/commissions/cnd/drug_resolutions/1990-1999/1999/ecosoc_res-1999-30.pdf https://www.unodc.org/documents/commissions/cnd/drug_resolutions/1990-1999/1999/ecosoc_res-1999-30.pdf udayana journal of law and culture vol. 3 no. 1, january 2019 38 another international organization that is also very proactive in drug abuse problem is the european union, which currently has 28 members. its agency called european monitoring centre for drugs and drug addiction (emcdda) was established in 1993 to provide factual, objective, reliable and comparable information on drugs and drug addiction. the responsibilities of emcdda is to: 29  monitor the drugs problem in europe (including emerging trends)  monitor solutions applied to drug-related problems  provide information on best practice in eu countries and encourages them to share it  assess the risks of new psychoactive substances  run an early warning system on new psychoactive substances  develop tools and instruments to help eu member states monitor and evaluate their national policies and the european commission to monitor and evaluate eu policies. in order for this agency to be able to show the results every year, there is a need for more consultations with other agencies of the european union. the emcdda and these eu agencies produce joint publications, services, and initiatives. for example, the emcdda works with europol and the european medicines agency to operate the eu early warning system on new psychoactive substances. a european approach to addressing drugs sustainably have been developed by the european union and its member states. such an approach is laid down in the eu drugs strategy 2013-2020 and two consecutive fouryear action plans on drugs. in implementing the eu drugs policy, civil society, especially ngos, becomes an important partner. a civil society forum on drugs (csf) was also created as a particular consultative body.30 a state practice may be observed from the slovak republic, a small country located in central europe and a member of the eu, with a population around 5.000.000 inhabitants. drug abuse is also a major problem in the slovak republic. slovak young people, aged 15-34 years, mostly used cannabis.31 under the conditions of the slovak republic, any possession of drugs is considered a criminal offence. according to section 172 of the penal code, the punishments are different according to the amount of drug possessed: 29 european union. european monitoring centre for drugs and drug addiction (emcdda). europa.eu. https://europa.eu/european-union/about-eu/agencies/emcdda_en 30 european union, migration affairs, eu’s response to drugs, https://ec.europa.eu/home-affairs/what-we-do/policies/organized-crime-and-humantrafficking/drug-control/eu-response-to-drugs_en 31 european monitoring centre for drugs and drug addiction, slovakia country drug report 2018, http://www.emcdda.europa.eu/countries/drugreports/2018/slovakia/drug-use_en https://europa.eu/european-union/about-eu/agencies/emcdda_en https://ec.europa.eu/home-affairs/what-we-do/policies/organized-crime-and-human-trafficking/drug-control/eu-response-to-drugs_en https://ec.europa.eu/home-affairs/what-we-do/policies/organized-crime-and-human-trafficking/drug-control/eu-response-to-drugs_en http://www.emcdda.europa.eu/countries/drug-reports/2018/slovakia/drug-use_en http://www.emcdda.europa.eu/countries/drug-reports/2018/slovakia/drug-use_en addressing global and national concerns into local actions: reflecting customary institution’s involvement in combating drug abuses anak agung ngurah wirasila and jana takáčová 39 imprisonment (3-5 years), home imprisonment and community service. the penalty of imprisonment up to 10 years may be imposed for drug trafficking, supply or production of drugs. the penalties may increase to a range of 1015 years’ imprisonment or 15-20 years, depending on the value involved and aggravating circumstances (repeat offence, the involvement of minors). if the crime was committed in the context of an organized group, it may be up to 25 years. in addition, automatic imprisonment for 25 years or even life sentence may be imposed in case of three convictions for certain serious offences.32 within the ministry of health, there is the department of drug strategy coordination and monitoring of drugs which represents the national focal point for the european monitoring centre for drugs and drug addiction (emcdda) as one of the eu’s decentralized agencies. 33 the main function of the department is to oversee the coordination and implementation of the national drugs strategy. we can also find a unit dealing with institutional and international relations and information transfers related to drug issues within this department. in terms of prevention, the national anti-drug strategy for years 20132020 defines the main objectives and framework for drug prevention in the slovak republic. two main objectives are increasing the quality and improving the effectiveness of prevention activities, with a focus on addressing risk factors leading to the initiation of substance use. prevention is embedded in the activities of numerous institutions representing the education, health, social affairs and family, and criminal justice sectors.34 some stakeholders play a major role in drug abuse prevention. ministries are responsible for implementing universal prevention programmes in school settings. the main activities in schools are focused on alcohol, smoking, illicit drugs, and risk behavior. besides, community and non governmental organizations (ngos) also involved in such an issue. community prevention programmes are targeted at recreational activities, such as organizing summer camps and sports activities for young people and children within leisure centers while ngos play an important role in prevention activities across the country. the state and other institutions in slovakia try to put emphasis especially on sufficient education in the field of drugs, at a young age, thus prevent their abuse, production or trafficking at the time of maturity. 32 the 2014 national report year (2013 data) to the emcdda by the reitox national focal point slovakia new development and trends , 13, http://www.emcdda.europa.eu/system/files/publications/1010/14nr_en_1st_prn.pdf 33 ibid, 12. 34 ministertvo zdravotnictva solvenskej republiky. national anti-drug strategy of the slovak republic for the period 2013 – 2020. http://www.emcdda.europa.eu/attachements.cfm/att_229784_en_sk_national% 20antidrugs%20strategy% 20of%20the%20slovak% 20republic%202013-2020.pdf http://www.emcdda.europa.eu/system/files/publications/1010/14nr_en_1st_prn.pdf http://www.emcdda.europa.eu/attachements.cfm/att_229784_en_sk_national%20anti-drugs%20strategy%20of%20the%20slovak%20republic%202013-2020.pdf http://www.emcdda.europa.eu/attachements.cfm/att_229784_en_sk_national%20anti-drugs%20strategy%20of%20the%20slovak%20republic%202013-2020.pdf udayana journal of law and culture vol. 3 no. 1, january 2019 40 2.2. indonesian law and regulations mandated the participation of community to overcome the drug problems law of the republic of indonesia no. 35 the year 2009 concerning narcotics (hereinafter refer to as indonesian narcotics act), a legislation product jointly adopted by indonesian president and the national parliament, regulates the means of community participation in the prevention of narcotics abuses. this law, particularly in article 104 and 105 regulates that communities have the widest possible opportunity, right, and to contribute and help the prevention and eradication of abuse and illicit narcotics and narcotics precursor. article 106 of the indonesian narcotics act makes clear that the society rights in efforts to prevent and eradicate abuse, illicit narcotics trafficking, and narcotics precursors are manifested in the form of: a. seek, obtain and provide information regarding the alleged criminal acts of narcotics and narcotics precursor has occurred; b. obtain service in finding, obtaining, and provide information on alleged criminal acts of narcotics and of narcotics precursor has occurred, to the law enforcement authorities or the bnn, that handles criminal acts cases of narcotics and of narcotics precursor; c. submit suggestions and opinions in a responsible manner to the law enforcement authorities or the bnn, that handles criminal acts cases of narcotics and of narcotics precursor; d. obtain answers to the question about the report, that has been provided to the law enforcement officers or the bnn; e. obtain legal protection during is concerned exercise their rights or be present in court proceedings. article 108 makes clear that community roles, as stipulated in article 104, 105, and 106, can be formed in a forum that is coordinated by the bnn as regulated by the regulation of head of bnn. in addition, article 107 of indonesian narcotics act determines that communities, if aware of any abuse or illicit of narcotics and of narcotics precursor, can make a report to them. there is no doubt that this law formalizes the link between the community and official authorities or bnn. in order to recognize the role of law enforcement officers and the community, as well as to encourage the further involvement, this law enables the government to give the award to both officers and community who would have been rendering service in efforts to prevent and eradication abuse and illicit of narcotics and narcotics precursor. 35 elucidation of article 55 (1) of this act also emphasizes the participation of the community, in the context of medical and social 35 article 109 law of the republic of indonesia no. 35 year 2009 concerning narcotics addressing global and national concerns into local actions: reflecting customary institution’s involvement in combating drug abuses anak agung ngurah wirasila and jana takáčová 41 rehabilitation36 for those who are narcotics addicts but have not reached the age of 18 (eighteen), to improve the oversight and guidance responsibilities towards the children. the national administration also made guidelines to local governments to include the participation of the community in the efforts to overcome drug abuse. the ministry of home affairs' regulation no. 21 year 2013 on the facilitation of narcotics abuse prevention, governor and regent/mayor in facilitating the narcotics abuse prevention carrying out some tasks. these include the enactment of regional regulations regarding narcotics that contain some elements, including community participation, and the increasing of community participation in the context of prevention narcotics abuse.37 recently, the instruction of the president of the republic of indonesia no. 6 year 2018 concerning national action plan for strengthening the prevention and eradication of the misuse and illicit circulation of narcotics and narcotics precursors (2018-2019) instructs heads of national ministries and agencies and local governments implement such national action plan. this presidential instruction underlines the needs to take preventive action on community empowerment through the development of community potential in vulnerable and susceptible areas of narcotics and narcotics precursors. 38 the bnn is appointed as a responsible agency on the implementation of this action, in cooperation with relevant institutions (ministries and local governments). 2.3. the involvement of customary village in eradicating drug abuses 2.3.1. functions of customary village in bali under indonesian law, village is defined as “a unit of community that has boundaries with the authority to regulate and manage the affairs of government, interests of the local communities based on the community’s initiatives, right of origin, and/or traditional rights recognized and respected in the system of government of the republic of indonesia.”39 according to 36 social rehabilitation is an integrated process of recovery physical, mental and social activities in order to enable the former narcotics addicts to pursue their social function in community life. see article 1 (1) of the law of the republic of indonesia no. 35 year 2009 concerning narcotics 37 article 4 ministry of home affairs’s regulation no. 21 year 2013 on the facilitation of narcotics abuse prevention 38 elucidation of instruction of the president of the republic of indonesia no. 6 year 2018 concerning national action plan for strengthening the prevention and eradication of the misuse and illicit circulation of narcotics and narcotics precursors (2018-2019), section a.4.b 39 article 1 (1) of law of the republic of indonesia no. 6 year 2014 concerning village udayana journal of law and culture vol. 3 no. 1, january 2019 42 article 6 (1) of law of the republic of indonesia no. 6 year 2014 concerning village (hereinafter refer to as indonesian village act) the village is classified into two types: desa (village) and desa adat (customary village/traditional village). the first category refers to a village that is regulated by indonesian law and regulation; while the second category, that is primarily discussed in this paper, refers to a village that basically created by the customary community and upholds customary law and tradition. article 103 of the indonesian village act further regulates that the authority of a customary village based on the rights of origins as referred to in article 19 letter a shall include: a. regulation and implementation of government based on the original arrangement; b. regulation and management of communal or customary territories; c. preservation of the socio-cultural values of the customary village; d. settlement of customary disputes based on customary law in force in customary villages in areas that are in harmony with human rights principles by prioritizing settlement in consultation e. the organization of a peace trial for the customary village in accordance with the provisions of the laws and regulations; f. maintenance of peace and order in customary village communities based on customary law that has been applied in customary village; and g. the development of the life of customary law in accordance with the socio-cultural conditions of the customary village society. subsequently, article 104 of indonesian village act further regulates that the exercise of authority based on the rights of origin local-scale authority of the customary village as referred to in article 19 letters a and b, as well as article 103, shall be governed and administered by the customary village based on the principle of diversity. moreover, article 110 indonesian village act states that customary village regulation shall be tailored with the prevailing traditional laws and customs in the customary village to the extent not inconsistent with the provisions of the legislation. customary village) in bali is called as desa pakraman (pakraman village) or desa adat (adat village). as defined in article 1 (4) of the regulation of bali province no. 3 year 2001 concerning desa pakraman, it is a unit of the customary community in the province of bali which has one unit traditions and life manners of hindu community hindus from generation to generation in a bondage of kahyangan tiga or kahyangan desa that have its certain areas and assets and has the right to take care of its household. according to article 1 (11) of this provincial regulation, customary village may create a codified customary rulesand basic principles that is so called as awig-awig, which is used as a guideline in the addressing global and national concerns into local actions: reflecting customary institution’s involvement in combating drug abuses anak agung ngurah wirasila and jana takáčová 43 implementation of balinese life philosophy of tri hita karana. awig-awig is a type of customary law that resulted from paruman (the highest level meeting of the customary community). 40 in addition to its authority to establish awig-awig, customary village may also create perarem.41 perarem reflects the dynamic character of customary law and is evidence of customary law that grows following changes in society.42 article 8 (a) jo article 1 (12) of this provincial regulation determines that awig-awig is implemented by prajuru desa pakraman (the executive agency). besides, prajuru has tasks for regulating the arrangement of religious ceremonies at pakraman village, in accordance with religious literature and each tradition; strive for peace and settlement of customary disputes; represent customary village in acting to perform legal actions both inside and outside the court by the approval of paruman (customary meeting); manage of assets customary village; and foster religious harmony within the region customary village. the assembly of customary village (majelis desa pakraman/mdp) is a customary institution established by chapter ix of the regulation of bali province no. 3 year 2001 concerning desa pakraman. this assembly has the task to:43 (a) protect customs; (b) give suggestions, suggestions and opinions to various parties both individuals, groups/institutions including the government about the problem customary issues; (c) carry out every decision of paruman according to the rules set; (d) assist the writing of awigawig; and (e) carry out dissemination on customs and traditions thoroughly. whatsoever this assembly was established through a provincial regulation, a court decision clarifies that the decision adopted by the assembly of customary issued by cannot be regarded as an administrative decision in the meaning of administrative law.44 the assembly of dealing with conducting the following issues: (a) deliberate on various things concerning issues of adat and religion for the benefit of friendship; (b) as mediator in customary cases cannot be resolved at the village level; and (c) help organize religious ceremonies at sub regency, regency/municipality, and province levels. 40 article 12 (1) jo article 1 (13) of the regulation of bali province no. 3 year 2001 concerning desa pakraman 41 see elucidation article 6(c) of regulation of bali province no. 3 year 2001 concerning desa pakraman 42 i wayan yuda krisna, ni nyoman dewi pascarani and i ketut winaya. partisipasi perempuan dalam proses pembuatan pararem di desa pakraman panjer, kecamatan denpasar selatan, kota denpasar. citizen charter 1, no.2 (2015): 1-2. 43 article 16 (1) of the regulation of bali province no. 3 year 2001 concerning desa pakraman 44 decision of adminisitrative court of denpasar no. 05/g/2012/ptun.dps, 33. udayana journal of law and culture vol. 3 no. 1, january 2019 44 2.3.2. normative contents that enabling customary village in bali to address the issue of drug abuse article 5 (1) (f) of the regulation of bali province no. 7 year 2017 concerning facilitation of prevention of narcotics abuse determines that primary prevention, that is the effort to prevent someone from abusing narcotics, can be done by increasing the active role of the community and customary village to help prevent narcotics abuse. article 15 (1) and (2) jo. article 8 (c) of this provincial regulation determines that prevention through the community environment is done by empowering community elements consisting of village heads/lurah, hamlet heads, and heads of the customary village to carry out prevention activities against narcotics abuse. article 29 further regulates that the governor in facilitating the prevention of narcotics abuse can cooperate with: a. the provincial national narcotics agency and the regency / city national narcotics agency; b. desa pakraman (customary village); c. educational institutions; d. religious institutions; e. community organization; f. youth organization; g. professional organization; h. legal entity business entity; and/or i. individual. the elucidation of article 29 explains that the governor (of bali) in collaboration with customary village organize facilitation to prevent narcotics abuse can advise the pakraman village to insert the substance of narcotics abuse prevention into awig-awig or perarem. it is a new situation in the life of the customary village that needs to be regulated. the regulation also makes clear that assembly of customary village (majelis desa pakraman) is involved by the governor in organizing narcotics prevention facilitation. 45 article 31 further regulates that cooperation (collaboration) is carried out through the following activities: seminar, lokakarya; workshop, performances, arts and culture festivals, outbound, race, community empowerment, community training, scientific papers; and socialization, dissemination, assistance, and technical guidance. elucidation of this article pays attention to the issue of community empowerment. it explains that such empowerment covers the preparation of curriculum for counselling materials, training, and preparation of extension workers from various elements of the community, including the customary village. 45 article 30 of the regulation of bali province no. 7 year 2017 concerning facilitation of prevention of narcotics abuse determines. addressing global and national concerns into local actions: reflecting customary institution’s involvement in combating drug abuses anak agung ngurah wirasila and jana takáčová 45 2.3.3. should customary village in bali play a pivotal role in addressing drug abuse? the following part will describe and analyze the knowledge, perception, expression, and expectation of customary village leaders regarding the efforts to combat drug abuse in general and in a specific issue that is the involvement of the customary community. as mentioned in section 1.3, information was obtained from qualitative questionnaires circulated to some customary village leaders (bendesa and klian) in bali between novemberdecember 2018. the table below indicates the name and position of the customary village leaders. table 1 detail of informant no name occupation date of filling in questionaire 1 i made sarja sekretaris and bendahara desa pakraman sidakarya-denpasar 3 november 2018 2 i nyoman nariata klian desa adat batubayan 30 november 2018 3 putu wendra klian/bendesa adat desa mengwitani-badung 1 december 2018 4 i gusti made rai dirga klian adat banjar taman griya, jimbaran-badung 2 december 2018 5 i made budiarta bendesa adat jimbaran-badung 5 december 2018 6 i made asa bendesa adat desa sulangai, petang-badung 7 december 2018 source: manage by author most informants are leaders of the customary village located in badung regency.46 most of them convey their concern and feel anxious about the situation of the increasingly widespread circulation, abuse and narcotics crimes in bali.47 the informants also express their disappointment for the facts that young generations are involved in narcotics circulation, abuse, and crimes. they think that this situation would disrupt the future of the younger generation who are expected to be responsible for national development. i gusti made rai dirga frankly stated that the increasing 46 badung regency is the regency that much enjoyed the benefit of tourism industry, comparing to others regencies and municipality in bali province 47 i made sarja, “informant interview questionnaire,” bali, november 3, 2018; i nyoman nariata, “informant interview questionnaire,” bali, november 30, 2018; i gusti made rai dirga, “informant interview questionnaire,” bali, december 2, 2018; i made budiarta, “informant interview questionnaire,” bali, 5 december 2018; and i made asa, “informant interview questionnaire,” bali, december 7, 2018. udayana journal of law and culture vol. 3 no. 1, january 2019 46 involvement of youngers in this situation would threat all aspects of traditional and cultural life of the customary village in bali. the questionnaires feedback revealed that most customary village leaders appreciated the works done by law enforcement agencies in eradicating narcotics abuse including the hard punishment imposed on perpetrators. 48 besides, there are also messages from customary village leaders addressed to law enforcement agencies to intensify and thorough their works due to globalization and technological development 49 and the increasing numbers of population that may potentially expand the spread of drug dealing activities.50 the above information implies that most customary leaders aware of the agencies responsible for narcotics eradication as well as have knowledge of their activities. the appreciation is given to, as well as abstention of specific critics addressed to, anti-narcotics-state law enforcement agencies may be regarded as a positive perception and acknowledgment to the works of the agencies in concern. the message to intensify the agencies’ work may be deemed as moral support and suggestion to the better task of the agency. section 1.1 described that there was an aspiration to create perarem that prohibits the use and selling of narcotics. perarem, as explained in 2.3.1, is a type of customary legal instrument adopted by customary village community that may include sanction for any violations against the norm. i made budiarta, i made asa, i gusti made rai dirga, putu wendra, and i nyoman nariata have a common understanding that this incorporation is needed to give a deterrence effect and embarrassment to the customary community. i made asa supported this aspiration in order to restrain the escalation of narcotics spread to rural areas. besides, he regarded that customary village members mostly respect customary sanction rather than positive laws. i gusti made rai dirga thought that perarem may prevent customary village members to involve in any narcotics crime and if it implements properly, it would support the works of law enforcers. putu wendra underlines that the creation of perarem should be discussed with other stakeholders e.g klian dinas, law apparatus and government officers. interestingly, there is reluctance. i made sarja, a customary village leader, thought that creation of perarem that prohibits the use and selling of narcotics is not needed. he argues that customary institutions as a supporting element for culture and religion will be very burdened with the task of overcoming the problem of narcotics. he thought the limitation of customary institution besides the society readiness to address this issue. he also feels that, as a bendesa adat (customary leader), he does not have a 48 putu wendra. “informant interview questionnaire,” bali, december 1, 2018; i gusti made rai dirga, op.cit.; i made budiarta, op.cit.; i made asa, op.cit. 49 i nyoman nariata, op.cit. 50 i made budiarta, op.cit. addressing global and national concerns into local actions: reflecting customary institution’s involvement in combating drug abuses anak agung ngurah wirasila and jana takáčová 47 capacity to perform preventive action for narcotics circulation and abuse. he expects law strengthening of the customary community.51 facts show that there is a massive external influence that strongly encourages customary village to create perarem. such encouragement frankly stated by heads and apparatus of provincial and regency governments, bnn, and civil society groups. it is reasonable to understand why they demand customary village to involve in this efforts as they seem to realize that balinese peoples, especially members of the customary village, feels that the obeyment to customary rules as stipulated in awig-awig and perarem has psychological and social repression. most informants welcome and agree to the aspiration and encouragement of external parties. in fact, there have been many customary villages already create anti-drug abuse perarem, indicating the goals of there parties were a success. whatever so, i made sarja’s statement seem unpopular as most customary leaders support the involvement of customary village. but if we read article 8 of bali provincial regulation concerning desa pakraman, as discussed in 2.3.1., implementing this program is not the principal task of prajuru. this may be regarded as a reflection that each customary village has its own autonomy. a repressive measure should be taken by customary village leaders prajuru. for example, they may temporarily isolate the drug abuser and its family in their house or specific location. some may argue that pecalang or jagabaya, customary police, that responsible for controlling the order and security in the customary village, should be optimally involved in combating drug abuse. but one should be understood that pecalang has a limitation in authority as its main task to enforce the awig-awig and perarem, not the ultimate decision maker. furthermore, in case of the drugs circulations and abuses massively occur in the customary village, the leaders and members of the customary village may convene a paruman to impose a customary punishment called as kasepekang. this kind of sanction is regarded as an ultimum remedium under customary law that strongly restricts and limits the rights of the punished person or family. therefore, in case drug abuser or dealer is a member of customary village, he/she and also his/her family may be imposed kasepekang. there is of course pros and contras: some support kasepekang to be applied for giving deterrence effect,52 while some others unwilling by considering that type customary penalty is a human rights violation. this paper would like to argue that the kasepekang should be included as one of the sanctions in the anti-drug perarem. it will keep the ethics and morality as well as will definitely give deterrence effect to all 51 i made sarja, op.cit. 52 see i made sumada, op.cit,. 513-514. udayana journal of law and culture vol. 3 no. 1, january 2019 48 customary village members. simply, all family will keep eyes to prevent its members would involve in any drugs abuse. 3. conclusion the ‘global war on narcotics abuse’ is implemented in various ways by countries. in indonesia, actions were not only taken by state organs e.g the national anti-narcotics agency of the republic of indonesia (badan narkotika nasional/bnn), but also involved many stakeholders. an interesting alternative approach can be seen in bali province, where many customary villages (desa pakraman), due to their awareness as well as in responding to external encouragement, voluntarily participated in supporting the government actions. as what has been discovered in this research, most customary village leaders appreciated the works done by law enforcement agencies in eradicating narcotics abuse including the hard punishment imposed on perpetrators. interestingly, there is a massive effort to transform the antinarcotics agenda into customary norms as stipulated in written customary law, so-called awig-awig and perarem. there have been many customary villages modified their perarem to prohibit the use and selling of narcotics as well as include the sanction to be imposed on those who violate it. this clearly indicates their awareness to work hand in hand with the official government to address such a serious problem. in contrast, there is still an opposing opinion, urging customary village should not take this extra work. this non-mainstream view tends to argue that combating drug abuse is the job of government officials, and therefore, suggests customary structure to merely focus on organizing cultural activities as originally mandated. there should be no hesitance to adopt a repressive measure by customary village leaders. the imposing of temporary isolation or even kasepekang, as an ultimum remedium that strongly restrict and limit the rights of the punished person or family, may be executed. the customary community should open their eyes that current legal and societal problems can not be dealt with only by using a traditional means. they should realize that customary structures and instruments could optimally support the measures taken by the governments. acknowledgement authors express a great appreciation to a.a.p ramaduffa okabay n., ayu trisna, chandra wirawan, i p destra wirawan, krisna bagaskara d, and kadek widhi pradnya gita for their generous efforts in collecting information related to this research. addressing global and national concerns into local actions: reflecting customary institution’s involvement in combating drug abuses anak agung ngurah wirasila and jana takáčová 49 bibliography book rexed, bror, ken edmondson, inayat khan and robert j. samsom. 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for drugs and drug addiction (emcdda). europa.eu. https://europa.eu/european-union/about-eu/agencies/emcdda_en gembong ismadi, phdi jembrana dukung penyalahgunaan narkotika masuk peraturan adat, antara bali. last modified october 3, 2018. https://bali.antaranews.com/berita/132558/phdi-jembrana-dukung-penyalahgunaan-narkotika-masuk-peraturan-adat mantap! dua kilogram sabu dan ribuan pil koplo dimusnahkan kejari jembrana. baliberkarya.com. last modified september 28, 2018. https://baliberkarya.com/index.php/read/2018/09/28/201809280003/mantap-dua-kilogram-sabu-dan-ribuan-pil-koplo-dimusnahkan-... nusa bali. bnn resmikan 7 desa bebas narkoba dan 16 perarem anti narkoba di gianyar. skanaa.com. last modified november 16, 2018. https://www.skanaa.com/en/news/detail/bnn-resmikan-7-desa-bebas-narkoba-dan-16-perarem-anti-narkoba-di-gianyar/nusabali perarem anti narkoba persempit ruang gerak pengedar di desa pekraman. beritabali.com. last modified november 15, 2018. https://beritabali.com/read/2018/11/15/201811150015/perarem-anti-narkoba-persempit-ruang-gerak-pengedar-di-desa-pekraman.html suyatra, i putu. sudah 42 desa di badung masukkan narkoba ke awig-awig dan pararem. baliexpress.jawapos.com. last modified november 22, 2017. https://baliexpress.jawapos.com/read/2017/11/22/28579/sudah-42-desa-di-badung-masukkan-narkoba-ke-awig-awig-d... udayana journal of law and culture vol. 02 no.2, july 2018 191 weighting approaches on online sexual abuse of children: cultural prevention or crime-based enforcement? ahmad sofian* business law program, law department, faculty of humanities, bina nusantara university, jakarta. bambang pratama** business law program, law department, faculty of humanities, bina nusantara university, jakarta. chiara talerico*** crime analysis, elephant action league, los angeles. abstract online child sexual exploitation (ocse) is a form of crime against children that can be reviewed from various perspectives such as criminal law, criminology and culture. this offence is governed in several international legal instruments because perpetrators and victims are often located in different territories or have different nationalities. the optional protocol on sale of children, child prostitution and child pornography (opsc) is one that provides a reference in combating this crime, but this instrument has the disadvantage of not providing specific guidance in overcoming sexual crimes of children who are in the online sphere. opsc focuses more on child pornography, whereas ocse has evolved rapidly enough to give birth to new forms of crime that are not just child pornography. another weakness can be found in national laws, due to the lack, or limited, response to address the issue. therefore, a cultural approach is important to prevent and tackle this problem. this paper is aimed to weight the needs to use a preventive cultural approach and a crimebased enforcement in addressing online sexual abuse in indonesia. it is a normative legal research that reads various primary and secondary legal materials. the study recommends that there is a need to use appropriate legal terminology and provide a clear interpretation of the terminology in national law so that these crimes can be quickly addressed. in addition, it also argued that cultural approaches may be used to prevent the occurrence of osce by means of involving the community and religious leaders, educating family, as well as raising the awareness of children. keywords: sexual abuse of children; internet; crime; cultural approach; indonesia.` . how to cite (chicago-16th): sofian, ahmad, bambang pratama, and chiara talerico. “weighting approaches on online sexual abuse of children: cultural prevention or crime-based enforcement?”udayana journal of law and culture 2, no. 2 (2018): 191-219. https://doi.org/110.24843/ujlc.2018. v02.i02.p04. doi: https://doi.org/10.24843/ujlc.2018.v02.i02.p04 vol. 02, no. 2, july 2018, 191-219 1 * email /corresponding author: asofian@binus.edu and ahsofian@gmail.com ** email: bpratama@binus.edu *** email chiaratale@yahoo.it 192 1. introduction 1.1. background indonesian people represents the same situation of southeast asian countries’ people, indicates the lack of awareness of the risks of online child grooming and child sexual abuse.1 indonesian children were targeted for pornography crime and exposure to pornography. there are a number of facts that children in indonesia have subjected to pornography both by unorganized criminals and by organized criminals to be commercialized. one of the most shocking facts is the case that was revealed in may 2017, in which a father, lives in kutai kartanegara regency, east kalimantan, had a regular sexual scene with his daughter that is connected with skype to be broadcast live and witnessed by paedophiles around the world.2 in january 2018, indonesian ministry for communication and information received some 8.166 complains regarding the pornography contents.3 after 2017, the ministry blocked almost 800,000 sites, in which more than 90 per cent of these sites were pornographic.4 a commissioner of the indonesian child protection revealed that the commission had seen the results of the screening conducted by indonesian ministry of health that to primary school children by the end of 2017 and published in march 2018. it is a shocking fact that the data shows that 91,58% of the 6.000 samples taken have been exposed to pornography, some 6,3% have experienced light pornography addiction, and some 0.07% experienced heavy addiction.5 another survey also discovered a shocking data as 97% of respondents, junior and senior high school students in 12 big cities in indonesia have admitted themselves ever accessing sites that offer pornography content and watching porn video through the internet.6 currently, internet use remains largely concentrated in indonesia’s major cities, where people are better able to afford internet-enabled devices, but as technological developments continue and prices drop, this is expected to spread into more rural 1 deanna davy “regional overview: sexual exploitation of children in southeast asia” bangkok: ecpat international, september 2017, 54. 2 nabila maharani “bejat! ayah tega cabuli anaknya secara live di grup pedofil” may 11, 2017, https://www.inspiradata.com/bejat-ayah-tega-cabuli-anaknya-secara-live-grup-pedofil/ 3 tempo, “kominfo kantongi 8.166 aduan konten pornografi di januari 2018”, bisnis.com-tempo. co, february 23, 2018.https://bisnis.tempo.co/read/1063823/kominfo-kantongi-8-166-aduan-kontenpornografi-di-januari-2018 4 reuters, new indonesia internet system blocks more than 70,000 ‘negative’ sites, jakarta, february 19, 2018, http://indianexpress.com/article/technology/tech-news-technology/new-indonesiainternet-system-blocks-more-than-70000-negative-sites-5069746/ 5 davit setyawan, “kpai: darurat pornografi pada anak sd, orangtua harus tingkatkan pengawasan”, march 31, 2018, http://www.kpai.go.id/berita/kpai-darurat-pornografi-pada-anak-sdorangtua-harus-tingkatkan-pengawasan 6 ahmad budiman, “pemblokiran konten porno pada layanan over the top,” info singkat pemerintahan dalam negeri ix, no. 22 (november 2017): 18. weighting approaches on online sexual abuse of children: cultural prevention or crime-based enforcement? ahmad sofian, bambang pratama and chiara talerico udayana journal of law and culture vol. 02 no.2, july 2018 193 areas.7 a popular way to go online is through mobile internet. the use of smartphones and tablets are on the increase, but internet-capable feature phones are still the preference of the majority of mobile internet users.8 indonesians use the internet predominantly for information and communication purposes, especially via internetbased instant messages, such as blackberry messenger, and social media, such as facebook. indonesia has been listed as one of the top 10 countries with the highest cases of online sexual abuse of children since 2005.9 the recently arisen issue of osac has received great attention from various parties, including government institutions, non-governmental organizations and media. cases of osac that have been reported in the media have fuelled national concern about the safety of children online and raised questions of the magnitude of osac and how it can be prevented. it is worth to make known that mainstream views in indonesia tends to urge the use of criminal law means to enforce the perpetrator. they thought that criminalizing the doer will bring an impact, especially psychological deterrence, to the potential perpetrator. it is also interesting to discover that some non-legal approaches have been used to provide a breakthrough of this matter. for example, research conducted by prima angkupi offers moral and cultural approaches to prevent cyberporn crime.10 the author argues that as cyberporn in nature is contradicts both norm and culture, it can be resolved by strengthening the moral and legal culture of the society.11 these two perspectives, cultural approach and criminal law, will become the main issue of this article. 1.2. purposes this article investigates the specific role of internet access in child sexual abuse, determine different forms of online abuse, and attempts to characterize the magnitude of this issue in indonesia. additionally, this research aims to make a first step in indicating possible factors that contribute to the online sexual abuse of children and formulates recommendations on how to combat this phenomenon. it is also aimed at determining some contributing factors to online child abuse and 7 emarketeer, in indonesia a new digital class emerges: internet and mobile internet will see significant adoption in the next few years. retrieved from http://www.emarketer.com/article/ indonesia-new-digital-class-emerges/1009723 8 ibid. 9 kompas, “situs porno kian mengkhawatirkan,” kompas.com, march 16, 2012, https:// travel.kompas.com/read/2012/03/16/02354152/situs.porno.kian.mengkhawatirkan%e2%80%a c%e2%80%ac and margie mason, “facebook used to kidnap, traffic indonesian girls,” usa today, october 30, 2013. http://www.usatoday.com/story/news/world/2012/10/29/facebook-used-tokidnap-traffic-indonesian-girls/1665321/ 10 prima angkupi, “cultural approaches in cyberporn crime prevention”, jurnal dinamika hukum 17, no.2 (may 2017): 225, 231. 11 ibid, 230. 194 formulate recommendations on how to combat online child abuse. those issues are formulated in a general purpose of this writing that is to weight the needs to use a preventive cultural approach and a crime-based enforcement in addressing online sexual abuse in indonesia. 1.3. method as a legal research, this writing reads some relevant legal instruments, both international legal instruments and national law and regulations of indonesia. concepts and reviews are cited from textbooks and academic papers while facts are very much obtained from government and non-governmental organizations reports, online sources, and interview. by virtue of providing comparative insights, this writing also looks at case studies and developments of regulating as well as enforcement measure imposed to online sexual abuse of children, as can be traced from relevant reports and publications. 1.4. literature review several research studies have found the effects of watching online pornographic materials on children to be detrimental. watching pornography can cause a child to experience distress and can cause a child to adopt unhealthy notions of sex and relationships.12 a recent study regarding online child sexual exploitation offending was carried out by tony krone and russell g smith by taking a study focus in australia.13 it aims at improving the understanding of the risks posed by those investigated by the australian federal police (afp) for online-only cse offences, principally online cem offences with some grooming offences.14 the result of the study shown that of the 152 offenders, 148 (97%) were cem offenders convicted of at least one cem index offence, 131 (86%) were offenders convicted of cem-only offenders, and 17 (11 percent) were convicted of index offending involving both cem offending and either grooming or contact offences (dual cem offenders).15 the study also revealed that a median collection size of offenders is 1.000 files (a file being a single item like an image or a video); 25 per cent had collections of more than 10,000 files and five per cent had collections of over 100,000 files.16 12 michael flood, “the harms of pornography exposure among children and young people.” child abuse review, 18 (2009): 384–400. 13 tony krone and russell g smith, “trajectories in online child sexual exploitation offending in australia,” trends & issues in crime and criminal justice 524 (2017). 14 ibid. 15 ibid, 6. 16 ibid, 7. weighting approaches on online sexual abuse of children: cultural prevention or crime-based enforcement? ahmad sofian, bambang pratama and chiara talerico udayana journal of law and culture vol. 02 no.2, july 2018 195 mohamed chawki is an egypt law practitioner as well as a scholar that pays attention to the issue of online sexual abuse of children. he made a critical assessment of the problem of internet child sexual abuse and its governance through both french legal and non-legal means.17 in discussing french approach to child abuse regulation, he realizes that there appears not to be a single solution for the regulation of illegal and harmful content on the internet because countries defined child pornography offences in various ways and the meaning of ‘harmful’ will depend upon cultural differences.18 this study also recommends law-makers to develop forfeiture laws, similar to those used for drug traffickers, to seize the property of child pornographers and abusers to pass legislation prohibiting the mere possession of child pornography and to translate their criminal codes to facilitate international cooperation.19 chawki, in a joint article with yassin el shazly, addresses the growing threat of sexual harassment in cyberspace and provides an overview of the issues and risks pertinent to sexual harassment and seeks to offer some solutions based on the necessity of pursuing a tri-fold policy encompassing strategic and regulatory, technical, and cultural approaches.20 some indonesian scholars have carried out a study that highlights the issue of pornography through the internet. hwianchristianto identified functions of act against material law for pornography criminal act through the internet and inquiries whether or not judges in indonesia applied act against the material law in considering the verdict of pornography case through the internet.21 the study discovers that judge, in practice, applied morality norm as a source of defamation of pornographic acts through the internet in case legal provisions was relatively unclear.22 angga astian putra et.al conducted a research that asses whether or not law and regulations in indonesia have provided protection in preventing them becoming a victim of an internet-based crime of pornography as well as discusses the ideal policy to be issued in resolve the case in concern.23 while the result shows that indonesian law and regulations have included some legal protections, although not comprehensively yet, authors recommend the establishment of a special agency that is authorized to oversee and assess sites or online games that are allowed to a certain age of children.24 17 mohamed chawki, child sexual abuse: the french response, journal of digital forensics, security and law 4, no.4 (2009): 9. 18 ibid, 25. 19 ibid, 35. 20 mohamed chawki and yassin el shazly, “online sexual harassment: issues and solutions,” journal of intellectual property, information technology and electronic commerce law 4, no.2 (2013): 71. 21 hwian christianto, “imposition of nature against material law under judge verdict of cyberporn case in east java,” jurnal dinamika hukum 17, no. 3 (2017): 289. 22 ibid, 294. 23 angga astian putra, prija djatmika, and nurini aprilianda, bentuk perlindungan hukum bagi anak agar tidak menjadi korban dari tindak pidana pornografi melalui situs internet,” jurnal hukum (2016): 3-4. 24 ibid, 20. 196 some research on the legal protection of children has not highlighted the issue of online sexual abuse of children. wilson ola diriwari conducted an academic phd research that focuses on the issue of child trafficking in nigerian society in order to demonstrate the ineffectiveness of law and policies approaches, both at international and national levels, to address the issue in concern.25 the research was very much looking at some concepts and theories such as child abuses, child exploitation, and child protection, cultural relativism, social constructionism, and legal pluralism.26 this thesis finally urges that traditional approaches to child abuses, child protection, and the pressure of economic realities in nigeria require an immediate response and also postulates that the way forward for nigeria can be found in new legal, political, as well as socio-economic paradigms.27 2. result and analysis 2.1. online sexual abuse of children: terms and concepts children can be inducted into exploitation by making use of a position of supremacy, a vulnerability or other circumstances. in other cases, the child could believe the sexual exploitation being an integrated part of a loving relationship with a trusted adult. literature has discovered any form of children and formulated some definitions. sexual abuse in one among four kinds of abuses to which a child is usually subjected. the others types are physical, neglect, and emotional.28 it may be defined as the sexual molestation of children by adults or older children that leads to sexual arousal in the perpetrator.29 online sexual abuse of children (hereinafter, osac) is a form of child sexual abuse, which takes place on, or is facilitated by the internet. in cases of osac, the internet has used either primary, for example by using the internet to display and distributing child abuse material, or secondary, by using the internet to get in contact with children to facilitate offline child sexual abuse, prostitution and trafficking. in this research, online child sexual abuse (osac) is meant in the broadest sense of the word: any form of child sexual abuse, on or facilitated by the internet. there are some other phrases to indicate the issue of osac. one example is online child sexual exploitation (ocse), as used by ecpat international and 25 wilson ola diriwari, “efficacy of the legal frameworks for child protection in nigeria” (phd diss., department of politics, history and the brunel law school brunel university london, 2016), 37. 26 ibid, 233. 27 ibid, 234. 28 wilson ola diriwari, op. cit, 31. 29 ibid, 37-38. weighting approaches on online sexual abuse of children: cultural prevention or crime-based enforcement? ahmad sofian, bambang pratama and chiara talerico udayana journal of law and culture vol. 02 no.2, july 2018 197 religions for peace (rfp).30 they also prefer to use term “child sexual abuse material (csam)”31 instead of “child pornography”, and term “child sexual exploitation material” (csem) to encompass all other sexualised material depicting children in a broader sense.32 despite csem, some other studies are in favour of using child exploitation material (cem) to indicate sexually abusive images of children and to refers to child pornography.33 child abuse material, also often called child pornography, and the internet seems to be entangled, and information technology plays a crucial role in possession, circulation and production of child abuse images.34 child abuse material exploits children in many ways:35 children may be tricked or coerced into engaging in sexual acts for the • production of child abuse material. these images are then sold, traded or otherwise distributed. the demand for images of children maintains the incentive to produce such • materials. thus, those who “consume” and/or possess abusive depictions of children continue to exploit these children. child abuse materials are frequently used by child abusers to dimish a • child’s inhibitions and to convey the impression that sex between adults and children is normal, acceptable and enjoyable. this is part of the “grooming” process. the makers of child abuse material commonly use their “products” to • coerce, intimidate or blackmail the children used in the making of such material. 2.2. international concern on online sexual abuse of children during the period 2016-2017, the united nations published the un glossary on glossary on sexual exploitation and abuse.36 it defines sexual abuse as “actual 30 ecpat international and religions for peace,“protecting children from online sexual exploitation: a guide to action for religious leaders and communities,”, june 2016, 4. https://www.unicef.org/protection/files/fbo_guide_for_religious_leaders_and_communities_eng(1).pdf 31 see also mohamed chawki, op.cit, 11. 32 ibid, 7. 33 tony krone and russell g smith, op.cit, 1-2. see also carmen madrinan, “worst form of child labor: commercial sexual exploitation of children”, in the world of child labor: an historical and regional survey, ed. hugh d hindman (new york: routledge, 2015), 97. 34 john carr. child abuse, child pornography and the internet (london: nch, 2004). 35 catherine beaulieu, strengthening laws addressing child sexual exploitation (bangkok: ecpat international, 2008). 36 united nations glossary on sexual exploitation and abuse thematic glossary of current terminology related to sexual exploitation and abuse (sea) in the context of the united nations second edition, prepared by the task team on the sea glossary for the special coordinator on improving the united nations response to sexual exploitation and abuse. the first version was created on 5 october 198 or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions.37 in addition, the glossary made the following comments: “all sexual activity with a child is considered as sexual abuse. ‘physical intrusion’ is understood to mean ‘sexual activity’. ‘sexual abuse’ is a broad term, which includes a number of acts described below, including ‘rape’, ‘sexual assault’, ‘sex with a minor’, and ‘sexual activity with a minor’. the glossary explicitly refers to the problem of consent when defining that both ‘sexual penetration of’ and ‘sexual activity with’ a child is prohibited regardless of the age of majority or consent locally and is considered as sexual abuse.”38 another un product, the sustainable development goals targeted the elimination of all forms of violence against all women and girls in the public and private spheres, including trafficking and sexual and other types of exploitation as well as an end of abuse, exploitation, trafficking, and all forms of violence against and torture of children.39 sdg 8.7, in accordance with international labour organization (ilo) convention 182, is also not in favour of the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances. as a broader shield, the agenda features children protection, in order to ensure every child grows up free from exploitation of every kind. deputy high commissioner for human rights kate gilmore said that online sexual exploitation is likely to rise in the coming years with the demand for new child sexual abuse material. she also reveals fact that many states do not have an adequate legislative framework to perform thorough investigations into and prosecution of online sexual exploitation and abuse of children.40 the global alliance against child sexual abuse online, launched by the european commission and the us in 2012, was established to raise standards worldwide and unite efforts around the world to more effectively combat online sexual crimes against children.41 its report in december 2013 comprises four policy targets that further detailed in specific operational goals and actions.42 one of the targets is reducing as much as possible the availability of child pornography online and 2016 and was modified into the second edition on 24 july 2017.https://hr.un.org/sites/hr.un.org/ files/sea%20glossary%20%20%5bsecond%20edition%20-%202017%5d%20-%20english_0.pdf 37 ibid, para 4. 38 ibid, para 10-11. 39 united nations general assembly (2015), “transforming our world: the 2030 agenda for sustainable development”, undoc, a/70/l.1, 5.2 and 16.2. 40 the office of the united nations high commissioner for human rights, “new digital technologies produce unprecedented levels of child abuse material online”, 18 march 2016. 41 european commission, migration and home affairs, “the global alliance against child sexual abuse online”. https://ec.europa.eu/home-affairs/what-we-do/policies/organized-crimeand-human-trafficking/global-alliance-against-child-abuse_en 42 european commission, home affairs, report of the global alliance against child sexual abuse online, december 2013, 7-21. weighting approaches on online sexual abuse of children: cultural prevention or crime-based enforcement? ahmad sofian, bambang pratama and chiara talerico udayana journal of law and culture vol. 02 no.2, july 2018 199 reducing as much as possible the re-victimization of children whose sexual abuse is depicted that is implemented by action of improving cooperation between law enforcement and the private sector in the fight against child sexual abuse online in an appropriate legal framework and development and use of technologies and training to identify and remove child pornography images.43 two leading international non-governmental organizations, ecpat international and religions for peace, jointly initiated an establishment of a guide to action for religious leaders and communities that is aimed to protect children from online sexual exploitation. this guide was expected to provide some basic tools to equip religious leaders and communities to act, advocate, educate, and collaborate both among themselves and with broader initiatives so that each and every child can live without fear, develop their true potential and enjoy the inviolable gift of their human dignity.44 in the international context, there are several regulations that are used as the basis for criminalizing child sex offenders online.45 for example, the optional protocol on sale of children, child prostitution and child pornography (opsc) to the convention on the rights of child. article 3 opsc expresses the act of offering, transmitting or receiving in any way, a child for the purpose of sexual exploitation of the child. in addition, the act of creating, distributing, distributing, importing, exporting, selling or possessing child pornography for the purpose of sexual exploitation of children is prohibited and criminalized. international labour organization (ilo) also contributed on the war against child labour that may lead to a child sexual exploitation by creating the ilo convention on the author and immediate action for the abolition of the worst forms of child labor. this convention does not contain any definition of ‘child pornography’ or csam/csem but it does make clear that “the use of, the attempt to obtain or offer a child for prostitution, the manufacture of pornography or pornographic performances” can be defined as one of the worst forms of child labour.46 2.2.1. development in europe in europe, council of europe convention on the protection of children against sexual exploitation and sexual abuse was established to prevent and combat sexual exploitation and child sexual abuse, to prevent and protect the rights of victims and to promote national and international cooperation. this convention reflects a 43 ibid, 18-19. 44 ecpat international and religions for peace,op.cit, 2. 45 african charter on the rights and welfare of the child (acrwc), article 2; ecpat international and ecpat luxembourg, op. cit., p. 5-6. 46 ilo convention no. 182 concerning the prohibition and immediate action for the elimination of the worst forms of child labour. 200 progressive nature as it became the first international instrument that enables the criminalization for acts of solicitation of children for sexual purposes through ict, as stipulated in article 23. when assessing the context of solicitation, the committee of the parties of this convention recommends state parties to consider encouraging law enforcement to prevent the commission of sexual offences against children, including online grooming, through ict.47 the committee also made a note on the progress in spain, where its national authority and autonomous communities manage a national online database containing the transferred data (registro unificado de maltrato infantil/unified child abuse register).48 in addition, the council of europe convention on cyber crimes also sets an obligation for state parties to adopt such legal measures to establish criminal offences for any act of making child pornography through a computer system; offer or provide child pornography through a computer system and distribute or transmit child pornography through a computer system.49 article 4 of the european union directive on combating the sexual abuse and sexual exploitation of children and child pornography (directive 2011/93/ eu)50 defines sexual exploitation as “causing or recruiting a child to participate in pornographic performances, or profiting from or otherwise exploiting a child for such purposes” as well as “coercing or forcing a child to participate in pornographic performances, or threatening a child for such purposes”. in the first case, the offence is punishable by a maximum term of imprisonment of at least 5 years when the age of consent was not reached or 2 years when the age requirement is met. in the second case, the maximum term of imprisonment in the absence of the age of consent is 8 years, otherwise is 5 years. the directive punishes as well the mere attending pornographic performances with a maximum imprisonment term of 2 or 1 year according to the age of consent requirement. the maximum penalty of 10 years is reserved to “coercing or forcing a child into prostitution or threatening a child for such purposes”. european financial coalition (efc) identifies commercial sexual exploitation of children as the sale of child abuse images. “this could include a website designed 47 committee of the parties to the council of europe convention on the protection of children against sexual exploitation and sexual abuse (t-es), “opinion on article 23 of the lanzarote convention and its explanatory note solicitation of children for sexual purposes through information and communication technologies (grooming),” adopted by the lanzarote committee on 17 june 2015, para 16. 48 committee of the parties to the council of europe convention on the protection of children against sexual exploitation and sexual abuse (t-es), 1st implementation report “protection of children against sexual abuse in the circle of trust the framework” adopted by the lanzarote committee on 4 december 2015, para 58. 49 european treaty series 185 – convention on cybercrime, 23.xi.2001, art. 9 (1). 50 directive 2011/93/eu of the european parliament and of the council of 13 december 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing council framework decision 2004/68/jha, http://eur-lex.europa.eu/legal-content/ en/ txt/?uri=celex%3a32011l0093 weighting approaches on online sexual abuse of children: cultural prevention or crime-based enforcement? ahmad sofian, bambang pratama and chiara talerico udayana journal of law and culture vol. 02 no.2, july 2018 201 to provide child abuse images for a cost…”51 as well as setting up paid online facilities which can be used to store and/or share abusive contents. it is interesting to note that in some instances the monetary element can as well be absent, still realizing the same offence. this happens, for instance, when the pornographic material is exchanged in order to obtain other abusive material, which becomes the currency itself. 2.2.2. the issue of digitally generated images the optional protocol to the convention on the rights of the child on the sale of children, child prostitution and child pornography (opsc) includes art 3(c):52 “producing, distributing, disseminating, importing, exporting, selling or possessing ‘child pornography’ for the purpose of sexual exploitation of the child”. however, the protocol is lacking in the way it excludes from its provision the “accessing and mere possession of child pornography”. although “child pornography means any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes”,53 definition of ‘child pornography’ is not inclusive of digitally/ computer generated csam as defined in the terminology guidelines. the council of europe convention on cybercrime (budapest convention) includes producing, offering or making available, distributing or transmitting, procuring and possessing ‘child pornography’ through a computer system. definition of ‘child pornography’ covers ‘realistic images representing a minor engaged in sexually explicit conduct’ and ‘a person appearing to be a minor engaged in sexually explicit conduct’,54 but does not make any specific reference to digitally created images. the council of europe convention on the protection of children against sexual exploitation and sexual abuse (lanzarote convention) leaves aside digitally/computer generated csam too. thus, contributing to the existing gap. art 20 (3), explicitly states that “each party may reserve the right not to apply, in whole or in part, paragraph 1.a and e to the production and possession of pornographic material: – consisting exclusively of simulated representations or realistic images of a non-existent child”55. the lack of solid international regulations in this sense constitutes an 51 european cybercrime centre (ec3) – europol, “efc commercial sexual exploitation of children online, a strategic assessment”, 2015, p. 7, www.europol.europa.eu/publications-documents/ commercialsexual-exploitation-of-children-online 52 p optional protocol to the convention on the rights of the child on the sale of children, child prostitution and child pornography. new york, 25 may 2000. https://treaties.un.org/doc/ treaties/2000/05/20000525%2003-16%20am/ch_iv_11_cp.pdf 53 ibid, art 2 (c). 54 art 9 (2), convention on cyber crime, 23 november 2001. http://www.europarl.europa.eu/ meetdocs/2014_2019/documents/libe/dv/7_con budapest_/7_conv_budapest_en.pdf 55 art 20 (3), council of europe convention on the protection of children against sexual exploitation and sexual abuse, cets no.201, lanzarote, 25/10/2007 202 important issue, because the digitally generated material, although not carrying a physical offence to any child, sustain, anyway, a market for child exploitation and forage a cultural acceptance of sexualization of children. 2.2.3. the issue of transnationality when child sexual abuse online is limited to the consumption of child exploitation materials online, without leading to a physical encounter between the victim and the offender, its prosecution faces the issues concerned to transnationality. due to the nature of the crime, it is often necessary to proscribe transnational criminal activity in order to use online child sexual exploitation legislation. the most used way to deal with this issue is to “by enabling prosecutions to take place where the accused or victim are located in different jurisdictions as long as there remains a sufficient connection with the place in which the prosecution is commenced.”56 for example, if someone commits an online crime towards a german citizen, germany may request extradition from the country the person finds him self in. an important principle to consider is the criterion of dual criminality. this means that the act must be recognized as an offence under both the laws of the extradition country and the requesting one. the concept can be applied with different strength according to a state to another, indeed, some require duality for all request for assistance and some other just for extradition purposes. although this is an internationally binding and recognize principle it is able to create obstacles in the prosecution of online crimes, i.e. online sexual crimes. in this respect, it is interesting to note that the uk is one of the very few states whose jurisdiction abolished the necessity to respect dual criminality as to child sexual offences. section 72(1) of the criminal justice and immigration act 200857 (uk) provides that: “if a british citizen commits an act in a country outside the uk, and the act would constitute an offence when committed in england, wales or northern ireland, then the uk national is deemed guilty in that part of uk for that sexual offence”. 2.3. cultural approach to prevent online sexual abuse of children in indonesia indonesian children are abused in the making of child pornography. exact figures are not available, which makes it hard to define the magnitude of this phenomenon. however, it is known that children who grow up in poverty are especially 56 philip reichel and jay albanese, handbook of transnational crime and justice (us: sage publication, 2014). 57 criminal justice and immigration act, 2008, united kingdom, art 72(1). weighting approaches on online sexual abuse of children: cultural prevention or crime-based enforcement? ahmad sofian, bambang pratama and chiara talerico udayana journal of law and culture vol. 02 no.2, july 2018 203 vulnerable to become victims of sexual exploitation, such as child pornography, child prostitution and trafficking. in recent years, an alarming new development is the emergence of online prostitution syndicates in the major cities of indonesia. child sex workers and their pimps use the internet to find their customers and communicate with them. revealing pictures are posted on their social media profiles, or the profiles of multiple child sex workers are displayed on specific blogs or websites. potential customers can scan through these children’s profiles and get in contact with whomever they choose (sometimes through a ‘mamih’, another child who functions as a pimp). the communication with the customers then moves from the sites to internet-facilitated instant messaging services such as blackberry messenger. the financial transaction is done either through the internet or face-to-face when the child meets the customer. these child prostitution ‘syndicates’ are closely related to (biker) gangs, and children who work as child sex workers in these groups can later go on to become pimps themselves. the internet has also become a method to facilitate child kidnapping and trafficking. social media and instant messenger services are used to get in contact with potential victims, charm them and lure them to an agreed location. there they are raped and drugged, which can be followed by extortion or even trafficking to be forced into prostitution. there is no accurate data on the number of children kidnapped and trafficked after meeting their abductor on the internet. in recent years, however, child sexual exploitation seems to have shifted from taking place in public and visible areas, to increasingly private domains, in large part due to the rise of internet technologies. chat conversations are held in private chat boxes, instead of on the streets. this makes this form of child abuse extra difficult to detect and therefore stop. the internet has many features that can be used to facilitate the sexual abuse of children. in indonesia, this has led to several distinct forms of online sexual abuse of children. with the emerge of the internet in indonesia, different forms of abuse of children via the internet have developed. based on a recent case report in the media and on interviews with child victims and other key informants, four different forms of online sexual abuse of children in indonesia have been determined. indonesian law states that causing pornography to be accessible to a child is a crime and a child who accesses pornography is a victim. law number 44 year 2008 on pornography mandates the protection of children from the impacts of pornography and the prevention of children from accessing pornographic information.58 mobile internet technologies also help facilitate child prostitution and are used 58 see law number 44 on pornography, arts. 4 (1) and (2) and 16. 204 by prostitution syndicates in indonesia. online sex workers (and their pimps) use social media, blogs and specific websites to promote themselves and get in contact with customers, and chat rooms and online instant message services to communicate with them. looking for customers online gives child sex workers certain advantages compared to working on the streets or in bars: by looking for customers and arranging meetings with them over the internet, they feel safer. they are protected from police raids as they do not need to solicit in the streets or in red-light districts. particularly for child sex workers, the use of the internet has advantages, because through online messages police cannot differentiate between child sex workers and adult sex workers, as opposed to working on the streets, where they are easily spotted by police officers. additionally, by using the internet as a way to attract customers, children do not necessarily need an adult pimp to act as a broker. the occurrence of online sexual abuse of children in indonesia is due to a factor that allows the perpetrators and the connecting parties to exploit certain groups of vulnerable children. children are often used as commodities that provide financial benefits to the family. cultural factors nourish this crime. even in certain cases it seems that there is a social tolerance that embodies cultural practices that exploit children. there are some other factors that without being realized have made it occurs, such as allowing children to access the internet without any conscientiousness and consumerism that takes place in most children. many actors take advantage of this weakness in trapping children to enter in an exploitative situation, so they freely exploit a culture that does not control the use of gadget by parents as an opportunity to make children as prey. in many cases of online sexual abuse of children in indonesia, girls are the largest group targeted by perpetrators. the vulnerability of this group of girls is due to cultural stereotypes that assess girls as weak, passive, obedient when compared with boys. in addition to this, the demand for girls is higher because girls are considered innocent and can give sexual satisfaction to the perpetrators of sexual crimes. meanwhile, boys’ groups, though in some cases, are targeted by sexual objects, but the numbers are small. from a gender perspective, girls should be acknowledged advancendely with regards to their equal status with boys. as most children exploitation put girls as a victim, a cultural approach may also be used by educating girls to get their awareness of the dangers of the online world, that especially may exploit their physical bodies. this would create a self-protection from online sexual abuse of children, so in case girls are persuaded by anyone or any online program, they will automatically reject it. another cultural factor that contributes to the high level of online sexual abuse of children in indonesia is the unwillingness of parents to take a legal action by reporting violence experienced by their children. it seems that society has a lack weighting approaches on online sexual abuse of children: cultural prevention or crime-based enforcement? ahmad sofian, bambang pratama and chiara talerico udayana journal of law and culture vol. 02 no.2, july 2018 205 of understanding of what is experienced by the child is a form of sexual violence. this situation is exacerbated by the absence or availability of reporting mechanisms provided by both law enforcement and government agencies. so the legal culture of reporting the case of the child is low and then aggravated by the unpreparedness of the government/law enforcement in encouraging the community to report it by providing an easy and credible reporting mechanism by the community. in the community, there is also sought of sensitivity in preventing children from becoming victims of online sexual abuse. society does not much involved in knowing these evil forms. they are indifferent to this situation, so this situation is used rightly by child sex offenders. even public figures, as well as customary and religious leaders, do not properly aware about this issue. such lack of awareness leads to a less prevention of the occurrence of online sexual abuse of children in indonesia. for the situations described above, this article submits that prevention measures should take into consideration the using of cultural approaches. from a basic knowledge of the law, a lesson on the purpose of law could be addressed. as it is generally known, the law does not only function to maintain the life of society only but also for the cultural values that remain sustainable and providing moral lessons.59 it may be reasonably argued that such an approach will gradually change the behaviour of society, especially families. a practical example, a socio-cultural campaign may be initiated to warn parents to take a proper means of supervision and control over their children when they use gadget. such a campaign should be addressed to build a society sensitivity to the impact of information and technology on the safety of their children in the online world. fully considering that in developing countries like indonesia, community and religious leaders play an important role to influence society mindsets, they should be targetted to become an agent of socio-cultural efforts in combating online child exploitation. therefore, there is a necessity to not let them live in a traditional way by introducing an online world, especially gadget that has been widely used by children and teenagers. once they realized the danger of online sexual abuse of children, they might react and disseminate it to the wider community by cultural means. 2.4. criminal law perspective on online sexual abuse of children in indonesia according to the indonesian legal framework, causing pornography to be accessible to a child is a crime, and a child who accesses pornography is a victim. the chances for a child to come in contact with harmful online content is reinforced by 59 alimuddin siregar, “pornography criminal act on pictures under the law number 44 year 2008 about pornography and islamic law in indonesia” iosr journal of humanities and social science 22, no. 10 (2017): 89. https://doi.org/10.9790/0837-2210118795 206 the fact that in indonesia, parents are often not internet-knowledgeable and are unable to sufficiently guard and educate their children in this sense. law enforcers need to comprehensively understand the criminal acts of online prostitution because in many cases they can use more than one article from different laws for prosecuting the perpetrator. in table 1 the different articles are displayed that can be attributed to cases of online sexual abuse of children. table 1 a comparison of regulation related to online prostitution in the criminal code, law number 11 year 2008 on electronic information, transactions and law number 44 year 2008 on pornography and law number 23 year 2002 on child protection. act provision sanction criminal code articles 269 and 506: an act which facilitates and • eases other people’s indecent act for his/her own gain. as a habit and livelihood.• the perpetrator’s act must be • done more than once. imprisonment of one • year and four months and a fine of indonesian rupiah (idr) 15.000 (article 296) imprisonment of one • year (article 506) law number 11 year 2008 on electronic information and transactions article 27 (1) regulates prohibited acts: any person who knowingly • and without authority distributes and/or transmits and/ or causes to be accessible electronic information and/or electronic documents with contents against propriety. any person who sat-• isfies the elements as intended by article 27 shall be sentenced to imprisonment not exceeding 6 (six) years and/or a fine not exceeding idr 1.000.000.000 law number 19 year 2016 article 27 paragraph (1) juncto article 45 paragraph 1 prohibits and convicts a person who transcribes or distributes images containing decency. not limited to the tangible property, but also the inta weighting approaches on online sexual abuse of children: cultural prevention or crime-based enforcement? ahmad sofian, bambang pratama and chiara talerico udayana journal of law and culture vol. 02 no.2, july 2018 207 law number 44 year 2008 on pornography article 30 juncto article 4: more specifically regulates • criminal acts of running online prostitution. the law categorizes prostitution into some sexual services such as explicitly presenting genitals, exploiting or exposing sexual activities; or offering or advertising, directly or indirectly, sexual services as an objective element of the criminal act. a minimum term of • imprisonment of six months and a maximum term of imprisonment of six years and a minimum fine of idr 250.000.000 and a maximum fine of idr. 3.000.000.000. law number 44 year 2008 on pornography article 88 prohibits: every person who economically • or sexually exploits a child for his/her own gain or the gain of some third party imprisonment of not • more than ten (10) years and/or a maximum fine of idr 100,000,000) (euro 6300). law number 35 year 2014 on revision law number 23 year 2002 article 76 d, 76 e and article 82 paragraph (1) of law no. 35 of 2014. article 76 d is used if there is a threat of violence against a child to engage in sexual intercourse with another child. such threats can be frightening or threatening to spread pictures or other forms of threat. article 76 e children are persuaded to commit abuse with another child. it should be proven whether intercourse has occurred or is just obscenity. in a case law before district court of surabaya, the court sentenced tjandra adi gunawan four year in jail.60 he has been proven guilty of criminal acts to distribute and/or transmit and/or make accessible electronic information and/or electronic documents possessing violations of morality.61 in addition, the court also found that he committed several acts of disseminating pornography containing nudity or an impressive display of nudity, sex, or child pornography.62 60 decision of district court of surabaya (putusan pengadilan negeri surabaya) no. 2191/ pid.b/2014/pn.sby, verdict para 1 61 ibid, para 2. 62 ibid. 208 the cases illustrated above show that positive law still has not been able to give the perpetrator fear to not engage in sexual violence in children online. in addition, the proof of criminal acts of child sexual violence online is also not easy. law enforcement takes a long time, and it takes an investigation strategy that uses technological means so that the perpetrators and victims can be identified. 2.5. online sexual abuse of children through the lens of environmental criminology: a situational crime prevention approach the environmental criminology (ec) is a group of theories, which focus on the criminal events and the immediate environment in which those happen. ec is different from traditional criminology, which focuses on the offender in order to understand the “why” of the criminal action and, therefore elaborates treatments destined to the individual propensities. ec theories, albeit not denying the role of personal inclinations, investigate the interactions between offenders, targets and the setting they find themselves in, highlighting the role of opportunity and circumstances in the commission of crimes.63 immediate environment is not an incidental background of actions, but it has a primary role in incentivizing an action and influencing the way a behaviour develops. since crime depends on situational factors, it cannot be random; hence, ec is practically oriented, being concerned with the individuation of patterns, in order to find feasible solutions to criminal events and elaborate effective crime prevention strategies. 2.5.1. routine activity theory (rat) applied to online child sexual abuse the routine activity theory (rat)64 upholds that crimes tend to concentrate where there is a convergence of three elements: a suitable target, a suitable offender and a hot location. those elements – theoretically encapsulated in a double triangle65 come into alignment due to the offender’s and the victims’ routines, which tend to separate them from guardians.66 crimes’ occurrence probability can be, therefore, determined as a function of the convergence of the aforementioned elements (fig.1). the rat does not deny the role of personal inclinations but emphasizes the importance of the surrounding situation and opportunity when it comes to realizing the offence. 63 richard wortley and lorraine mazerolle, “environmental criminology and crime analysis: situating the theory, analytic approach and application,” in environmental criminology and crime analysis, ed. richard wortley and lorraine mazerolle, 1-15. (london: willan, 2008): 1-15. 64 lawrence e cohen and marcus felson, “social change and crime rate trends: a routine activity approach,” american sociological review 44 (1979): 588-608. doi: 10.2307/2094589 65 john eck, “police problems: the complexity of problem theory, research and evaluation,” crime prevention studies 15 (2003),79-113. 66 meghan e. hollis, marcus felson, and brandon c. welsh. “the capable guardian in routine activities theory: a theoretical and conceptual reappraisal,” crime prevention and community safety 15, no. 1 (2013): 65-79. https://doi.org/10.1057/cpcs.2012.14 weighting approaches on online sexual abuse of children: cultural prevention or crime-based enforcement? ahmad sofian, bambang pratama and chiara talerico udayana journal of law and culture vol. 02 no.2, july 2018 209 figure 1 the crime triangle the target suitability is evaluated in terms of both “targets’ characteristics and surroundings.”67 offences are more likely to happen when a suitable target and a motivated offender meet in the absence of a guardian. the rat has a wide applicability, since it can operate at different levels of analysis, both at micro and macro68 and can be applied to the case of child sexual abuse online as well. it is known that cyberspace can largely facilitate the commission of traditional crimes that acquire, in this way, a new occurring dimension. several cases in the chronicles show how easily a man can lure into his prostitution ring young girls and then advertise their services online for other men to use. at the same time, the cyber space makes it way easier for offenders to get in touch with other offenders, creating a sort of network of like-minded perpetrators who can share information, suggestions and strategies. from this point of view, it immediately emerges how the internet functions as a “hot place”. children have a remarkably easy access to the internet and most of the times in the almost total absence of parental control. alongside this factor, the situation is worsened by the lack of social skills in children, compared with those of adults,69 67 patricia l. brantingham, and paul j. brantingham, “environment, routine and situation: toward a pattern theory of crime” advances in criminological theory 5, no. 2 (1993): 259-94. 68 lawrence e. cohen, lawrence e., and marcus felson., op.cit. 69 loreen n. olson, joy l. daggs, barbara l. ellevold, and teddy kk rogers, “entrapping the innocent: toward a theory of child sexual predators’ luring communication,” communication theory 17, no. 3 (2007): 231-251. https://doi.org/10.1111/j.1468-2885.2007.00294.x 210 and the absence of cues in the web to help them making a judgment about the trustworthiness of their interlocutors. hence, “suitable targets” come closer to “offenders”, when capable guardians are unable to intervene. given the role that opportunity plays in respect to child sexual exploitation, considering the occurrence of motivated offenders who are financially motivated, weak or mostly absent guardians and easy targets,70 situational crime prevention (scp) offers feasible and effective solutions to address the issue. 2.5.2. situational crime prevention in online sexual abuse of children when applied to the problem of child abusive material, the situational approach upholds the effects of opportunity over-consumption. indeed, individuals can access resources, follow and satisfy their instincts in a cheap, fast and risk-free way. several studies demonstrated that the issue of child pornography is escalated since the 1980s, with the spreading of the internet, which allows for a multiplication of materials immediately available and anonymously accessible.71 given these considerations, it is obvious that the problem of cse online cannot be addressed as a problem of individual sexual deviancy.72 the main approach of sct is to reduce this opportunity while increasing the risks and diminishing rewards for perpetrators. the strengths of sct’s suggested measures is that they are meant to prevent the act, instead than intervening on the consequences of it, and are not directed to one single individual, but aim to hit the environment facilitating the behavior of all. the main form of intervention is to reduce the opportunities for perpetrators.73 when the environment is manipulated in order to alter the offender’s perception of the costs of his action, then the opportunities envisaged are reduced. opportunities reduction when it comes to cseo is enacted in three ways: increased the effort, increased the perceived risk and reduce the perceived reward.74 first of all, it is a matter of fact that offenders are more prone to commit crimes 70 henry hillman, christopher hooper, and kim-kwang raymond choo. “online child exploitation: challenges and future research directions.”computer law and security review 30, no. 6 (2014): 687698. https://doi.org/10.1016/j.clsr.2014.09.007 71 philip jenkins, beyond tolerance: child pornography on the internet (new york: new york university press, 2001); see also john carr, op.cit. 72 richard wortley, “situational prevention of child abuse in the new technologies,” in preventing online exploitation of children, ed. k. ribisl and e. quayle (london: routledge, 2012), 188-203. 73 ronald v.clarke, “situational crime prevention,” in environmental criminology and crime analysis, ed. richard wortley and lorraine mazerolle (london: willan, 2008). 74 note that the lastly theory formulated by cornish and clark (2008) outlines 5 strategies. the additional two are “removing excuses” and “reducing provocations”. see also derek blaikie cornish and ronald v. clarke, “opportunities, precipitators and criminal decisions: a reply to wortley’s critique of situational crime prevention,” crime prevention studies 16 (2003): 41-96. weighting approaches on online sexual abuse of children: cultural prevention or crime-based enforcement? ahmad sofian, bambang pratama and chiara talerico udayana journal of law and culture vol. 02 no.2, july 2018 211 that appear easier to realize. when child abuse materials are made more difficult to access, this creates an increase in the effort needed by the offender. indeed, already by indirectly soliciting the moving of child pornography from the public to more hidden sides (which are used to escape policing radars), offenders are required a greater effort to access the contents: getting secret passwords, learning which wording to be used for searches, learning how to navigate the dark web. other ways to obtain a similar effect is to make it harder to send and receive pornography. sometimes, the effort is increased by requiring a registration and/or identification to sites. however, there are many ways to share ce materials without recurring to those websites: peer-to-peer networks and anonymous remailers.75 by enacting stricter regulations of p2p networks and remailers systems, it would be possible to control the tools contributing to the realization of offences. when the abusive material is sold, hence it has to be paid online, credit card companies could create mechanisms to automatically block, and maybe identify, the transaction.76 a solution like this would have a twofold effect: to raise the effort for users and reduce the monetary reward for those running the business. therefore, by increasing the effort, if not a total reduction of crimes, there will be at least an influence on the number of offences committed by the same perpetrator.77 second, increase the perceived risks. given the sadly enormous amount of child abusive material consumers, it results almost impossible to prosecute all offenders.78 however, scp theories stress the fact that perceived risks are something different from real risks. internet anonymity is surely a factor prompting most of the offenders to act.79 if perpetrators had the feeling that they might be easily identified and eventually caught and prosecuted, their perception of risks would increase. this is the objective of internet policing, to create the impression of unsafety of the internet when it comes to retrieving child pornography. 75 robert lemos, “p2p investigation leads to child-porn busts,” security focus. august 19, 2008. https://www.securityfocus.com/brief/801; jay lynam, “feds crack down on p2p child porn”. tech news world, may 17, 2004. http://www.technewsworld.com/story/technology/33836.html 76 maxwell taylor and ethel quayle, “the internet and abuse images of children: search, precriminal situations and opportunity,” in situational prevention of child sexual abuse, ed. richard wortley and stephen smallbone (ny: criminal justice press, 2006) 77 an interesting view over this point can be found in ronald v. clarke and patricia mayhew, “the british gas suicide story and its criminological implications,” in crime and justice, vol 10, ed michael tonry and narval morris (chicago: university of chicago press, 1998). 78 yvonne jewkes and carol andrews, “policing the filth: the problems of investigating online child pornography in england and wales,” policing and society 15, no. 1 (2005): 42-62. https://doi. org/10.1080/1043946042000338922 79 christina demetriou and andrew silke, “a criminological internet ‘sting’: experimental evidence of illegal and deviant visits to a website trap,” british journal of criminology 43, no.1 (2003): 213-222. https://doi.org/10.1093/bjc/43.1.213 212 police can adopt different strategies, involving infiltration into web-groups pretending to be fellow-offenders looking for cse material, or children offering pornographic images or videos, in the attempt to unveil offenders. undercover operations demonstrated to increase the number of arrests already in the usa.80 on a greater scale, police could also use so-called “honey trap sites,”81 which are able to identify the offender’ s ip or store credit cards information. when largely publicizing policing successes and increased rates in processes, law enforcement authorities could greatly contribute to raising the risks perception. from another perspective, working on victims’ identification could serve as an efficient tool as well. victim identification is a methodology focused on images, photos and films analysis with which specialist all over the world work alongside their counterparts in order to get as much information as possible about the child abuse offence online starting from the victim. this type of approach is based on fact that online child pornography of any kind generally portraits and shows victims much more than it does with perpetrators; hence, the necessity of an accurate analysis of the victims. victim identification aims to identify and locates the exploited children in order to lately bring the abuser to justice. in march 2009, interpol launched the international child sexual exploitation (icse) database, through which investigators and specialists all over the world are able to share data.82 victims, offenders and places are carefully collected and compared into the database, in order to establish relevant connections and plan targeted operations. the icse database has been largely improved since 2016 to reaching a number of 29 countries, plus europol, currently linked to this and therefore able to cooperate. lastly, the opportunity thesis upholds that offenders commit crimes in order to achieve a certain reward. in cseo, the first outcome is sexual gratification. making it more difficult to access child abusive material online would surely have an impact on the benefits perceptions. services providers (isp) should, therefore, implement self-regulations able to impact on the sharing of such images and video or, more generally, binding members to remove entire illegal websites. the use of hotlines, as well, is a way to enable other user reporting the existence of child pornography 80 janis wolak, kimberly j. mitchell, and david finkelhor. internet sex crimes against minors: the response (alexandria, va: crime against children research center, university of new hampshire, 2003). 81 an example of a successfull operation is “operation pin”. for more information see bbc news, “police trap online paedophiles,” december 18, 2003, http://news.bbc.co.uk/2/hi/uk_news/3329567.stm 82 interpol, “towards a global indicator on unidentified victims in child sexual exploitation material,” technical report. bangkok: interpol and ecpat international, 2018. weighting approaches on online sexual abuse of children: cultural prevention or crime-based enforcement? ahmad sofian, bambang pratama and chiara talerico udayana journal of law and culture vol. 02 no.2, july 2018 213 on the web, alongside the utilization of filters applied to the browser that either return no results to the search or alert the consumer if an illegal website is about to be entered. in order to stimulate isps to adopt such regulations, some measures implying financial pitfalls for the providers may be applied. adegoke brings the example of major brands which have stopped advertising on networks that make child abusive material available. the application of scp to online child exploitation has been quite limited so far, but it has clear theoretical confirmation. it is undoubtedly that it would be a powerful and effective tool to address an endemic and often overlooked issue. 3. conclusion online child sexual abuse is evolving along with the rapid development of information technology. this crime is too strong to be dammed by relying solely on the law, because in reality the law does not frighten the perpetrator, and the law acts only when this crime has been committed. a criminal justice approach will not be effective in warding off this crime but a cultural approach is needed as an alternative to how to deal with it. a cultural approach is important because online child sexual violence appears unbalanced with the cultural ability to counter it. the current culture is incapable of preventing and even tackling this crime. no local wisdom has been able to cope with it and even tends to nourish this crime. therefore, there needs to be a new culture that emerges based on local cultural values to tackle this crime problem. the trick is to strengthen the family’s presence, foster gender justice and strengthen the knowledge of community leaders to be technologically literate and understand this new model of crime. acknowledgement opinion set out in this article are those of the authors. it does not reflect the opinion of their job affiliation. 214 bibliography book beaulieu, catherine. strengthening laws addressing child sexual exploitation. bangkok: ecpat international, 2008. carr, john. child abuse, child pornography and the internet. london: nch, 2004. jenkins, philip. beyond tolerance: child pornography on the internet. new york: new york university press, 2001. reichel, philip and jay albanese. handbook of transnational crime and justice. us: sage publication, 2014 thornburgh, dick, 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bangkok: ecpat international, september 2017 ecpat international and religions for peace, “protecting children from online sexual exploitation: a guide to action for religious leaders and communities,” bangkok and new york, june 2016. european commission, home affairs, report of the global alliance against child sexual abuse online, december 2013. interpol, “towards a global indicator on unidentified victims in child sexual exploitation material,” technical report. bangkok: interpol and ecpat international, 2018. the office of the united nations high commissioner for human rights, “new digital technologies produce unprecedented levels of child abuse material online”, 18 march 2016. united nations glossary on sexual exploitation and abuse thematic glossary of current terminology related to sexual exploitation and abuse (sea) in the context of the united nations second edition, prepared by the task team on the sea glossary for the special coordinator on improving the united nations response to sexual exploitation and abuse, 24 july 2017. case law decision of district court of surabaya (putusan pengadilan negeri surabaya) no. 2191/ pid.b/2014/pn.sbythe sea glossary for the special coordinator on improving the united nations response to sexual exploitation and abuse, 24 july 2017. weighting approaches on online sexual abuse of children: cultural prevention or crime-based enforcement? ahmad sofian, bambang pratama and chiara talerico udayana journal of law and culture vol. 02 no.2, july 2018 219 website content bbc news. “police trap online paedophiles.” december 18, 2003. http://news.bbc. co.uk/2/hi/uk_news/3329567.stm davit setyawan. “kpai: darurat pornografi pada anak sd, orangtua harus tingkatkan pengawasan.” march 31, 2018. http://www.kpai.go.id/berita/kpai-daruratpornografi-pada-anak-sd-orangtua-harus-tingkatkan-pengawasan emarketeer. “in indonesia a new digital class emerges: internet and mobile internet will see significant adoption in the next few years.” march 12, 2013. http:// www.emarketer.com/article/indonesia-new-digital-class-emerges/1009723 european commission, migration and home affairs, “the global alliance against child sexual abuse online.” european commission, migration and home affairs, “the global alliance against child sexual abuse online” https:// ec.europa.eu/home-affairs/what-we-do/policies/organized-crime-and-human-trafficking/global-alliance-against-child-abuse_en kompas, situs porno kian mengkhawatirkan kompas.com, march 16, 2012, https:// travel.kompas.com/read/2012/03/16/02354152/situs.porno.kian.mengkha watirkan%e2%80%ac%e2%80%ac lemos, robert. “p2p investigation leads to child-porn busts,” security focus. august 19, 2008. https://www.securityfocus.com/brief/801 lynam, jay. “feds crack down on p2p child porn”. tech news world, may 17, 2004. http://www.technewsworld.com/story/technology/33836.html mason, margie. facebook used to kidnap, traffic indonesian girls. usa today, october 30, 2013. http://www.usatoday.com/story/news/world/2012/10/29/ facebook-used-to-kidnap-traffic-indonesian-girls/1665321/ reuters, new indonesia internet system blocks more than 70,000 ‘negative’ sites, jakarta, february 19, 2018, http://indianexpress.com/article/technology/ tech-news-technology/new-indonesia-internet-system-blocks-more-than70000-negative-sites-5069746/ tempo, “kominfo kantongi 8.166 aduan konten pornografi di januari 2018”, bisnis. com-tempo.co, february 23, 2018.https://bisnis.tempo.co/read/1063823/ kominfo-kantongi-8-166-aduan-konten-pornografi-di-januari-2018 vol. 03, no. 1, january 2019, pp. 95-122 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3028 e-issn 2549-0680 95 data profiling and elections: has data-driven political campaign gone too far? alia yofira karunian*1 institute for policy research and advocacy (elsam), indonesia. helka halme** faculty of law university of helsinki, finland. ann-marie söderholm*** faculty of law university of helsinki, finland. article received: 12nd december 2018; accepted: 28th january 2019; published: 31th january 2019 abstract in the age of digitalization, data-driven political campaign has rapidly shifted into sophisticated data profiling and big data analysis. in indonesia, the privacy implications of data profiling for political purposes have not been thoroughly studied, much less regulated. this paper aims to conduct a comparative regulatory study between the european union general data protection regulation (eu gdpr) and indonesian laws concerning personal data protection in facing the growing practice of data profiling for political purposes. in conclusion, in order to prevent unfair and non-transparent data profiling for political purposes in the upcoming 2019 general election, indonesia should enact a comprehensive data protection law which provides data subjects with the right to information related to profiling and establishing independent supervisory authority. keywords: big data; data profiling; data protection; election how to cite (chicago-16th): karunian, alia yofira, helka halme, and ann-marie söderholm. "data profiling and elections: has data-driven political campaign gone too far?"udayana journal of law and culture3, no. 1, 95-122. https://doi.org/10.24843/ujlc.2019.v03.i01.p05. doi: https://doi.org/10.24843/ujlc.2019.v03.i01.p05 *email/corresponding author: alia@elsam.or.id ** email :helka.halme@hotmail.com ***email :ann-marie.soderholm@helsinki.fi https://ojs.unud.ac.id/index.php/ujlc/issue/view/3028 https://doi.org/10.24843/ujlc.2019.v03.i01.p05 mailto:alia@elsam.or.id mailto:helka.halme@hotmail.com mailto:ann-marie.soderholm@helsinki.fi data profiling and elections: has data-driven political campaign gone too far? alia yofira karunian, helka halme and ann-marie söderholm 96 1. introduction 1.1. background the way cambridge analytica transformed facebook ‘likes’ into a lucrative business by poisoning countries’ political system has been significantly increasing public discussions around the topics of data profiling and elections all around the world.2 the british political consulting firm has reportedly had a role not only in 2016 us election but also in 2013 and 2017 kenya election. big data has been taking old data-driven political campaign techniques to whole another level. big data itself refers to the collection and aggregation of large quantities of data produced by and about people, things or the interactions between them.3 big data is characterised by 3v, volume, velocity and variety.4 volume means big data comprises large amounts of data. velocity means the data streams coming at great speed, updated on a real-time basis. while variety means data come from different data sources, both internal and external data source. thanks to big data, the volume, variety and velocity of data used in data-driven political campaigns have been developing significantly. from the seemingly mundane data, politicians can now predict the personality traits, financial condition, and most importantly, the political belief, meaning that politicians know exactly who will be voted in the upcoming election.5 and all of this often happens, without us, the data subjects6, fully understand how and by whom, our personal data is being processed and analysed, as well as which decisions can be drawn from it. big data analysis, therefore, raises a 2balázs bodó, natali helberger, and claes h. de vreese. "political micro-targeting: a manchurian candidate or just a dark horse?." internet policy review 6, no. 4 (2017): 3. see also for example, the guardian, "india to investigate alleged cambridge analytica data breach", https://www.theguardian.com/world/2018/jul/26/india-to-investigate-allegedcambridge-analytica-data-breach-facebook; kompas.com, "1 juta data pengguna asal indonesia bocor, menkominfo panggil facebook”, https://nasional.kompas.com/read/2018/04/05/17361101/1-juta-data-pengguna-asalindonesia-bocor-menkominfo-panggil-facebook; the new york times, "cambridge analytica had a role in kenya election, too", https://www.nytimes.com/2018/03/20/world/africa/kenya-cambridge-analyticaelection.html; reuters, "what are the links between cambridge analytica and a brexit campaign group?", https://www.reuters.com/article/us-facebook-cambridge-analyticaleave-eu/what-are-the-links-between-cambridge-analytica-and-a-brexit-campaign-groupiduskbn1gx2io. 3 primavera de filippi, “big data, big responsibilities”, internet policy review 3, no. 1 (2014): 1. 4rob kitchin and gavin mcardle, ”what makes big data, big data? exploring the ontological characteristics of 26 datasets”, big data & society 3, no.1 (2016): 1. 5david w. nickerson and todd rogers, political campaigns and big data." journal of economic perspectives 28, no. 2 (2014):6. 6 article 4(1) gdpr defines data subject as an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. https://www.theguardian.com/world/2018/jul/26/india-to-investigate-alleged-cambridge-analytica-data-breach-facebook https://www.theguardian.com/world/2018/jul/26/india-to-investigate-alleged-cambridge-analytica-data-breach-facebook https://nasional.kompas.com/read/2018/04/05/17361101/1-juta-data-pengguna-asal-indonesia-bocor-menkominfo-panggil-facebook https://nasional.kompas.com/read/2018/04/05/17361101/1-juta-data-pengguna-asal-indonesia-bocor-menkominfo-panggil-facebook https://www.nytimes.com/2018/03/20/world/africa/kenya-cambridge-analytica-election.html https://www.nytimes.com/2018/03/20/world/africa/kenya-cambridge-analytica-election.html https://www.reuters.com/article/us-facebook-cambridge-analytica-leave-eu/what-are-the-links-between-cambridge-analytica-and-a-brexit-campaign-group-iduskbn1gx2io https://www.reuters.com/article/us-facebook-cambridge-analytica-leave-eu/what-are-the-links-between-cambridge-analytica-and-a-brexit-campaign-group-iduskbn1gx2io https://www.reuters.com/article/us-facebook-cambridge-analytica-leave-eu/what-are-the-links-between-cambridge-analytica-and-a-brexit-campaign-group-iduskbn1gx2io udayana journal of law and culture vol. 3 no. 1, january 2019 97 series of privacy concerns to the extent that – even if users did actually consent to the processing of some of their personal data – they did not explicitly consent to the collection (or, in this case, the extrapolation) and processing of information which has been derived from it by means of big data analysis.7 the problem becomes more intricate because the big data analysis for political purposes is often conducted by data brokers. these data brokers typically collect consumers’ public and non-public data that are available both online and offline.8with the help of data brokers, for years, political campaigns have been able to combine public voter files with commercial information, to develop detailed and comprehensive profile of voters9 and further use it to craft tailored campaign messages. the role of data broker here is therefore essential. however, the business model of the data brokers is known to be very complex and opaque or lack of transparency, thereby raising privacy concerns. 10 the data brokers typically collect, manipulate, and share consumers’ data without interacting directly with the data subjects, resulting in data subjects’ unawareness about data brokers’ roles in these practices.11as soon as the data subjects ask for more information, data brokers decline to answer, arguing that their data practices constitute trade secrets and must, therefore, be protected and kept secret.12 in indonesia itself, personal data protection issue within election context recently has been gaining public's attention when one of indonesian political parties, gerindra, sent a legal warning (surat somasi) to indonesia general election commission (kpu). this happened because kpu had previously denied gerindra's request of access to kpu’s voter list that contains voters’ uncensored national identity card number and family card number.13 gerindra’s action has been widely criticized by indonesian civil society organizations, especially indonesia coalition of personal data 7 primavera de filippi, op.cit., 4. 8 federal trade commission. ”data brokers: a call for transparency and accountability”. may 2014, 46-47.https://www.ftc.gov/reports/data-brokers-calltransparency-accountability-report-federal-trade-commission-may-2014. 9 jeff chester dan kathryn c. montgomery, “the role of digital marketing in political campaigns”, internet policy review journal on internet regulation, vol.6, issue 4, (2017), 3. 10federal trade commission, op.cit.,3. 11ibid. 12 wolfie christi and sarah spiekermann, ”networks of control. a report on corporate surveillance, digital tracking, big data & privacy”, 121-123, http://crackedlabs.org/en/networksofcontrol;see also wolfie christi, "how companies use personal data against people: automated disadvantage, personalized persuasion, and the societal ramifications of the commercial use of personal information", 8.https://crackedlabs.org/dl/crackedlabs_christl_dataagainstpeople.pdf, 13farisa, fitria chusna. "somasi kpu, dpd gerindra dki dikritik". kompas.com. last modified november 30, 2018 https://nasional.kompas.com/read/2018/11/30/18085861/somasi-kpu-dpd-gerindradki-dikritik https://www.ftc.gov/reports/data-brokers-call-transparency-accountability-report-federal-trade-commission-may-2014 https://www.ftc.gov/reports/data-brokers-call-transparency-accountability-report-federal-trade-commission-may-2014 http://crackedlabs.org/en/networksofcontrol https://crackedlabs.org/dl/crackedlabs_christl_dataagainstpeople.pdf https://nasional.kompas.com/read/2018/11/30/18085861/somasi-kpu-dpd-gerindra-dki-dikritik https://nasional.kompas.com/read/2018/11/30/18085861/somasi-kpu-dpd-gerindra-dki-dikritik data profiling and elections: has data-driven political campaign gone too far? alia yofira karunian, helka halme and ann-marie söderholm 98 protection, who stated that gerindra has violated law no.23 of 2006 on population administration that classify national identity card number and family card number as citizens’ personal data that must be protected by state.14 another political party, golkar, has also publicly declared that its campaign strategy for the upcoming 2019 election would be the utilization of big data analysis combined with political micro-targeting.15 1.2. purpose this paper addresses two main legal issues: firstly, what is the nexus between data profiling and elections, and secondly, how data subjects can control their personal data from the practice of data profiling by companies for the purpose of political campaign. this paper aims to analyse how does the existing legal framework of the european union (eu) and indonesian laws concerning personal data protection help to prevent the practice of unfair and non-transparent data profiling for political campaign purposes. the writers choose the eu for the comparative study because the eu general data protection regulation 2016 (gdpr) is considered as the “world’s toughest personal data protection law”.16 1.3. research methodology and structure research method applied in this paper is normative legal research, using a combination of comparative, statutory, analytical and conceptual approach. a comparative-statutory study between the european union and indonesia was conducted in order to further understand the existing legal framework regulating the practice of data profiling, whilst analytical and conceptual approach were conducted by analysing books, academic journal articles, organization reports, news, etc, concerning data protection in general, as well as data profiling and elections in particular. section 2.1. of this paper provides analysis regarding the concept of data profiling as well as the nexus between data profiling and elections. furthermore, section 2.2 provides a comparative analysis between the eu and indonesia regulation on personal data protection, especially concerning the right of data subjects relating to data profiling for political purposes. 14 koalisi perlindunngan data pribadi: pemilu demokratis harus menjamin perlindungan data privasi pemilih”. elsam. https://elsam.or.id/2018/12/koalisiperlindungan-data-pribadi-pemilu-demokratis-harus-menjamin-perlindungan-data-privasipemilih/ 15golkar manfaatkan big data untuk pemenangan legislatif 2019. tribunnews. last modified december 21, 2018 www.tribunnews.com/nasional/2018/12/21/golkarmanfaatkan-big-data-untuk-pemenangan-legislatif-2019 16adam satariano. g.d.p.r., a new privacy law, makes europe world’s leading tech watchdog. the new york times. last modified march 24, 2018. https://www.nytimes.com/2018/05/24/technology/europe-gdpr-privacy.html https://elsam.or.id/2018/12/koalisi-perlindungan-data-pribadi-pemilu-demokratis-harus-menjamin-perlindungan-data-privasi-pemilih/ https://elsam.or.id/2018/12/koalisi-perlindungan-data-pribadi-pemilu-demokratis-harus-menjamin-perlindungan-data-privasi-pemilih/ https://elsam.or.id/2018/12/koalisi-perlindungan-data-pribadi-pemilu-demokratis-harus-menjamin-perlindungan-data-privasi-pemilih/ http://www.tribunnews.com/nasional/2018/12/21/golkar-manfaatkan-big-data-untuk-pemenangan-legislatif-2019 http://www.tribunnews.com/nasional/2018/12/21/golkar-manfaatkan-big-data-untuk-pemenangan-legislatif-2019 https://www.nytimes.com/2018/05/24/technology/europe-gdpr-privacy.html udayana journal of law and culture vol. 3 no. 1, january 2019 99 1.4. theoretical framework 1.4.1. the right to privacy and data protection the right to privacy is a fundamental right enshrined in many constitutions around the world, as well as in international human right slaw. 17 article 12 of the universal declaration of human rights 1948 (udhr) proclaims that: “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence…… everyone has the right to the protection of the law against such interference or attacks.” the udhr itself is generally agreed to be the foundation of international human rights law and has served as the basis for major international human rights treaties 18 which similarly enshrine the right to privacy including, international covenant on civil and political rights 1966 (iccpr) in article 17, european convention of human rights 1950 in article 8 and american convention on human rights 1969 in article 11. comprehensive personal data protection regulation is critical to help minimise state and corporate surveillance as well as data exploitation. 19 personal data protection has long been recognized as a fundamental aspect of the right to privacy, for instance, in 1988, un human rights committee recognized the need for data protection laws to safeguard the fundamental right to privacy:20 “the gathering and holding of personal information on computers, data banks, and other devices, whether by public authorities or private individuals or bodies, must be regulated by law…. every individual should have the right to ascertain in an intelligible form, whether, and if so, what personal data is stored in automatic data files, and for what purposes. every individual should also be able to ascertain which public authorities or private individual or bodies control or may control their files. if such files…. have been collected or processed contrary to the provisions of the law, every individual should have the right to request rectification or elimination.” furthermore, un special rapporteur on the promotion and protection of the right to freedom of opinion and expression issued reports similarly noting that “the protection of personal data represents a special form of respect for the right to privacy”21 and that the right to privacy includes “the 17privacy international, “the keys to data protection: a guide for policy engagement on data protection”, 2018, 4.https://privacyinternational.org/data-protection-guide 18 the foundation of international human rights law. united nations. www.un.org/en/sections/universal-declaration/foundation-international-human-rightslaw/index.html 19 privacy international (2018), op.cit., 9. 20un doc. hri/gen/1/rev.9, general comment no. 16: article 17, ¶10. 21un doc. a/hrc/17/27, ¶58 (may 16, 2011). https://privacyinternational.org/data-protection-guide http://www.un.org/en/sections/universal-declaration/foundation-international-human-rights-law/index.html http://www.un.org/en/sections/universal-declaration/foundation-international-human-rights-law/index.html data profiling and elections: has data-driven political campaign gone too far? alia yofira karunian, helka halme and ann-marie söderholm 100 ability of individuals to determine who holds information about them and how […] that information is used.”22 in december 2016, the un general assembly passed a resolution (by consensus) on the right to privacy in the digital age, which reaffirmed previous unga resolutions regarding the importance of data protection to safeguard the right to privacy.23 as of january 2018, over 100 countries around the world have enacted comprehensive data protection legislation, and around 40 countries are in the processing of enacting such laws. 24 indonesia has not yet enacted the personal data protection bill and is currently in the process of drafting the bill.25 1.4.2. data profiling data, particularly when aggregated, can reveal a lot about a person.26 including one’s political belief. political opinion is considered sensitive data and is subject to specific processing conditions.27 gdpr defines profiling in article 4 as: “any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person's performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements.” valeria ferraris et.al. distinguish between group and individual profiling, as well as between direct and indirect profiling.28 group profiling identifies a group of individuals. members of a group can either share a certain attribute (distributed profiling), or profiling can group people into a group without necessarily having the same attributes or without sharing all attributes (non-distributive profiling). 29 while personalised or individual profiling aggregates information about an individual and/or uses that 22un doc. a/hrc/23/40, ¶22 (apr. 17, 2013). 23 un doc. a/res/71/199, 3; see also un doc. a/hrc/34/7. 24 privacy international (2018), op.cit., 17. 25kementerian hukum dan hak asasi manusia republik indonesia, "rancangan undang-undang tentang perlindungan data pribadi", https://peraturan.go.id/rancanganundang-undang-tentang-perlindungan-data-pribadi.html. 26 data is power: profiling and automated decision-making in gdpr.privacy international. 2017,2. https://privacyinternational.org/report/1718/data-power-profilingand-automated-decision-making-gdpr 27the general data protection regulation 2016/679 of the european union (gdpr), art.9(1). 28 valeria ferraris et.al., “defining profiling”, http://www.unicri.it/special_topics/citizen_profiling/wp1_final_version_9_gennaio.pdf, 89. 29 privacy international (2017), op.cit., 3. https://peraturan.go.id/rancangan-undang-undang-tentang-perlindungan-data-pribadi.html https://peraturan.go.id/rancangan-undang-undang-tentang-perlindungan-data-pribadi.html https://privacyinternational.org/report/1718/data-power-profiling-and-automated-decision-making-gdpr https://privacyinternational.org/report/1718/data-power-profiling-and-automated-decision-making-gdpr http://www.unicri.it/special_topics/citizen_profiling/wp1_final_version_9_gennaio.pdf udayana journal of law and culture vol. 3 no. 1, january 2019 101 information to derive, infer, or predict unknown characteristics or future behaviour.30 both individual and group profiling may be conducted directly or indirectly. direct profiling occurs when the end user and the original data subject used to define the virtual person with its profile are the same.31while indirect profiling aims at applying profiles deduced from other data subjects to an end user. 32 in general, data profiling was conducted for several purposes. for instance, to infer or predict information, to score, rank, evaluate and assess people, to make or inform a decision about an individual as well as a decision that personalises an individual’s environment:33 i. profiling to infer or predict information through profiling, highly intimate information, including sensitive information, can be inferred, derived or predicted from personal and often non-sensitive data at varying degrees of accuracy. e.g. personality traits, such as the big-five personality traits (extraversion, agreeableness, conscientiousness, neuroticism, and openness to experience), can be predicted from standard mobile phone logs, such as call logs and contact data. 34 researchers were able to use cell phone usage history (call logs, contact data and location) to predict users’ socioeconomic status.35 ii. profiling to score, rank, evaluate and assess people profiling does not just result in descriptive profiles but through profiling individuals may also be measured against benchmarks of 30ibid. 31david-olivier jaquet-chiffelle, “direct and indirect profiling in the light of virtual persons.” in profiling the european citizen: cross-disciplinary perspectives edited by mireille hildebrandt and serge gutwirth, 35-40, (germany: springer, 2008); direct profiling can be used to uniquely characterise a person within a population or to infer, for example, future behaviour, needs or habits of a specific target. 32ibid.; in indirect profiling, data is collected from a large population. groups and categories of subjects with similar properties emerge from the collected data. each group has its own identity defined through a small amount of information. the typical member of one group can be modelled using the concept of virtual persons. it is then sufficient to identify a subject as a member of the group, i.e., with the corresponding virtual person to be able to infer, for this subject, knowledge inherited from the group itself: probable behaviour, attributes, risks, etc. 33 privacy international (2017), op.cit., 4-6. 34yves-alexandre de montjoye, jordi quoidbach, florent robic, and alex sandy pentland. "predicting personality using novel mobile phone-based metrics." in international conference on social computing, behavioral-cultural modeling, and prediction. (berlin, heidelberg: springer, 2013), 53. 35joshua blumenstock, gabriel cadamuro, and robert on, “predicting poverty and wealth from mobile phone metadata,” science 350, no. 6264 (2015): 1073. data profiling and elections: has data-driven political campaign gone too far? alia yofira karunian, helka halme and ann-marie söderholm 102 “predefined patterns of normal behaviour”36 to establish whether and to what extent they deviate from such patterns. e.g. in 2016, ibm launched a tool that would help governments separate “real asylum seekers” from potential terrorists by assigning each refugee a score that would assess their likelihood to be an imposter.37 iii. profiling to make or inform a decision about an individual profiling generates information which may in turn be used to make or significantly inform decisions about individuals. such decisions can be taken with varying degrees of human intervention and automation. e.g.a hiring company assigns software to automatically scores and sorts resumes as well as ranks applicants. the hiring company only considers applicants that score above a certain threshold.38 iv. profiling to make or inform a decision that personalises an individual’s environment profiling is also used to automatically personalise experiences and information exposure, both online and increasingly offline. real-time personalisation gears information towards an individual’s presumed interests. e.g. billboards on the tokyo express way—on one of japan’s busy expressways— detect and identify cars to then select and display content based on the types of cars.39 when an inaccurate or otherwise systematically biased profile is used to inform or feed into a decision that affects individuals, such inaccuracies may result in harm.40 un human rights council reaffirmed this by stating that automatic processing of personal data for individual profiling may lead to discrimination or decisions that have the potential to affect the enjoyment of human rights, including economic, social and cultural rights.41 36fanny coudert, "when video cameras watch and screen: privacy implications of pattern recognition technologies." computer law & security review 26, no. 4 (2010): 377384. 37patrick tucker, defense one, “refugee or terrorist? obm thinks is software has the answer”. defenseone.com. last modified january 27, 2016.http://www.defenseone.com/technology/2016/01/refugee-or-terrorist-ibm-thinksits-software-hasanswer/125484/ 38 alex rosenblatet.al., “networked employment discrimination”, https://datasociety.net/pubs/fow/employmentdiscrimination.pdf 39intel, et.al., “deep learning enables intelligent billboard for dynamic, targeted advertising on tokyo expressway”, https://builders.intel.com/docs/storagebuilders/deep_learning_enables_intelligent_billboar d_for_dynamic_targeted_advertising_on_tokyo_expressway.pdf 40 privacy international (2017), op.cit., 7. 41 un doc. a/hrc/34/l.7/rev.1 http://www.defenseone.com/technology/2016/01/refugee-or-terrorist-ibm-thinks-its-software-hasanswer/125484/ http://www.defenseone.com/technology/2016/01/refugee-or-terrorist-ibm-thinks-its-software-hasanswer/125484/ https://datasociety.net/pubs/fow/employmentdiscrimination.pdf https://builders.intel.com/docs/storagebuilders/deep_learning_enables_intelligent_billboard_for_dynamic_targeted_advertising_on_tokyo_expressway.pdf https://builders.intel.com/docs/storagebuilders/deep_learning_enables_intelligent_billboard_for_dynamic_targeted_advertising_on_tokyo_expressway.pdf udayana journal of law and culture vol. 3 no. 1, january 2019 103 2. result and analysis 2.1. data profiling and elections: the shift of political campaigns methodology 2.1.1. political micro-targeting and political behavioural targeting in order to effectively deliver their campaigns messages to respective constituents, political candidates and parties have long been identifying its ‘voter market’. this practice of classifying and segmenting the ‘voter market’ is called political micro-targeting (pmt). pmt demonstrated a partial retreat from undifferentiated mass audiences in favour of tailoring messages to the “needs, wants, expectations, beliefs, preferences, and interests” of a target audience as determined by data profiling.42 in short, pmt’s core concept is the use of data and analytics to craft and convey a tailored message to a subgroup or individual members of the electorate.43pmt has been widely implemented by political actors because it allows political parties to allocate their resources efficiently 44 and it supports new ways of delivering individualized messages using both old media (traditional narrowcasting methods like direct mail, door-to-door canvassing, and phone calls) and new media (targeted email, personalized phone calls, and targeted political ads via social media).45 another phenomenon of data profiling and elections was introduced by, tom dobber, as political behavioural targeting (pbt). pbt refers to the creation of voters’ profile based upon voters’ online behaviour and other data provided by data brokers, as well as the use of this profile to target the voters’ individually with tailored political ads.46 pbt itself originates from the commercial marketing system. the rise of big data has led campaign operatives to harness digital technologies and tools to mobilize voter turnout, engage young people, raise money, and support grassroots ground operations. 47 electoral politics has now become fully integrated into a growing, global commercial digital media and marketing ecosystem that has already transformed how corporations’ market their products and influence consumers. 48 for instance, many of the digital strategies, tools, and 42ira s. rubinstein, ”voter privacy in the age of big data”, wis. l. rev. (2014): 882. 43balázs bodó, natali helberger, and claes h. de vreese, loc.cit. 44 sasha issenberg, the victory lab: the secret science of winning campaigns, (portland: broadway books, 2012), 12. 45 ira s. rubinstein, op.cit., 883. 46tom dobber, damian trilling, natali helberger, and claes h. de vreese. "two crates of beer and 40 pizzas: the adoption of innovative political behavioural targeting techniques." internet policy review 6, no. 4 (2017): 2-3. 47 jeff chester, op.cit., 2. 48election 2016: marriage of big data, social data will determine the next president. wired. https://www.wired.com/insights/2013/05/election-2016-marriage-of-big-datasocial-data-will-determine-the-next-president/ https://www.wired.com/insights/2013/05/election-2016-marriage-of-big-data-social-data-will-determine-the-next-president/ https://www.wired.com/insights/2013/05/election-2016-marriage-of-big-data-social-data-will-determine-the-next-president/ data profiling and elections: has data-driven political campaign gone too far? alia yofira karunian, helka halme and ann-marie söderholm 104 techniques employed in the 2016 us election were initially developed, deployed, tested, and refined by the commercial sector.49 pmt and pbt share similarities. both pmt and pbt use digital campaigns as one of the core strategies, because it enhances campaign effectiveness and cost efficiency. 50 both pmt and pbt starts with data profiling to profile prospective voters then continued with the delivery of a tailored message that matches with the prospective voters’ profile. data brokers and analytics companies, social media platforms, online messenger applications, perhaps are the main actors of today’s pmt and pbt. data brokers and analytics companies took part in data profiling and analytics of the prospective voters, while the social media platforms and online messenger applications took part in delivering the tailored campaign message (a research shows that the use of whatsapp messaging app to spread political messages has led to large increases in voter turnout among younger voters in brazil).51 the increasingly central role of commercial digital marketing in contemporary political campaigns is reshaping modern-day politics in fundamental ways, altering relationships among candidates, parties, voters, and the media.52there are several risks associated with the practice pmt and pbt, which also mirrors concerns raised in the commercial advertising domain, inter alia: profiling entails a loss of user privacy, targeting opens the door for selective information exposure, potential manipulation, 53 and enables campaigns to send tailored messages directly to citizens, thereby avoiding scrutiny from journalists.54 as a result, campaigns can potentially make opposite promises to different people, without anyone noticing.55 2.1.2. how does data profiling affect elections: lesson learned from cambridge analytica while the practice of data-driven political campaign is actually nothing new, manipulating the entire country’s psychology to help a certain candidate to win the election, is obviously detrimental to the very existence of democracy. this section provides an example of cases in which pmt and pbt were implemented by cambridge analytica, to influence voters during us and kenya election. 49jeff chester, loc.cit.. 50mauricio moura and melissa r. michelson, “whatsapp in brazil: mobilising voters through door-to-door and personal messages”, internet policy review 6, no. 4 (2017):3. 51ibid. 52 jeff chester, op.cit, 7. 53balázs bodó, natali helberger, and claes h. de vreese, op.cit, 4. 54 tom dobber, damian trilling, natali helberger, and claes h. de vreese op.cit, 2. 55ibid. udayana journal of law and culture vol. 3 no. 1, january 2019 105 2.1.2.1. the 2016 us election cambridge analytica scandal was perhaps facebook’s biggest data breach ever. the data was initially collected for academic purposes through an app called thisisyourdigitallife, developed by aleksandr kogan. 56 facebook users who took personality tests on the app were paid and agreed to have their data (and their friends’ data, too) collected by kogan. 57 cambridge analytica then entered into an agreement with kogan and used the 50 million facebook data to create personality profiles for voters and used it to target individuals with specifically tailored content.58 one example of manipulation caused by cambridge analytica during the us 2016 presidential elections was to identify specific hillary’s voters and target them with psychographic messaging designed to discourage them from voting.59unlike the eu gdpr, the us does not have a dedicated data protection law, but instead regulates primarily by industry, on a sector-bysector basis.60 2.1.2.2. the 2013 and 2017 kenya election kenya has a long history of ethnically divided politics and electionrelated violence. the weeks of bloodletting took place in 2007, where it is estimated 1,200 people were killed and 600,000 fled their homes during the inter-ethnic violence after a disputed election.61 for this reason, kenyans prepare for elections in the same way other prepare for war or natural disasters. 62 as the memories of the 2007 elections linger, tensions have 56 revealed: 50 million facebook profiles harvested for cambridge analytica in major data breach. the guardian. last modified march 17, 2018. https://www.theguardian.com/news/2018/mar/17/cambridge-analytica-facebookinfluence-us-election 57ibid. 58sean llling. cambridge analytica, the shady data firm that might be a key trumprussia link, explained. vox. last modified april 4, 2018 https://www.vox.com/policy-andpolitics/2017/10/16/15657512/cambridge-analytica-facebook-alexander-nix-christopherwylie 59 jeff chester, op.cit., 8; see also green, joshua and sasha issenberg. inside the trump bunker meet the people powering his campaign. the irish examiner. last modified november 5, 2016. https://www.irishexaminer.com/viewpoints/analysis/inside-the-trumpbunker--meet-the-people-powering-his-campaign-429091.html 60 rosemary p jay, data protection & privacy, 2015, https://www.huntonprivacyblog.com/wpcontent/uploads/sites/28/2011/04/ddp2015_united_states.pdf, 208. 61 kenya president's election campaign used firm hired by trump: privacy group. reuters. last modified december 15, 2017. https://www.reuters.com/article/us-kenyapolitics/kenya-presidents-election-campaign-used-firm-hired-by-trump-privacy-groupiduskbn1e82qs 62 amid fears of election violence, kenyans seek a way past inter-ethnic conflict. the guardian. last modified august 4, 2017. https://www.theguardian.com/commentisfree/2017/aug/04/fear-election-violence-kenyaethnic-divisions-hope-new-generation https://www.theguardian.com/news/2018/mar/17/cambridge-analytica-facebook-influence-us-election https://www.theguardian.com/news/2018/mar/17/cambridge-analytica-facebook-influence-us-election https://www.vox.com/policy-and-politics/2017/10/16/15657512/cambridge-analytica-facebook-alexander-nix-christopher-wylie https://www.vox.com/policy-and-politics/2017/10/16/15657512/cambridge-analytica-facebook-alexander-nix-christopher-wylie https://www.vox.com/policy-and-politics/2017/10/16/15657512/cambridge-analytica-facebook-alexander-nix-christopher-wylie https://www.irishexaminer.com/viewpoints/analysis/inside-the-trump-bunker--meet-the-people-powering-his-campaign-429091.html https://www.irishexaminer.com/viewpoints/analysis/inside-the-trump-bunker--meet-the-people-powering-his-campaign-429091.html https://www.huntonprivacyblog.com/wp-content/uploads/sites/28/2011/04/ddp2015_united_states.pdf https://www.huntonprivacyblog.com/wp-content/uploads/sites/28/2011/04/ddp2015_united_states.pdf https://www.reuters.com/article/us-kenya-politics/kenya-presidents-election-campaign-used-firm-hired-by-trump-privacy-group-iduskbn1e82qs https://www.reuters.com/article/us-kenya-politics/kenya-presidents-election-campaign-used-firm-hired-by-trump-privacy-group-iduskbn1e82qs https://www.reuters.com/article/us-kenya-politics/kenya-presidents-election-campaign-used-firm-hired-by-trump-privacy-group-iduskbn1e82qs https://www.theguardian.com/commentisfree/2017/aug/04/fear-election-violence-kenya-ethnic-divisions-hope-new-generation https://www.theguardian.com/commentisfree/2017/aug/04/fear-election-violence-kenya-ethnic-divisions-hope-new-generation data profiling and elections: has data-driven political campaign gone too far? alia yofira karunian, helka halme and ann-marie söderholm 106 risen in western kenya and parts of nairobi amid confusion and discrepancies surrounding the country’s repeated presidential election on october 2017, with deadly violence breaking out in some areas.63 kenya national commission on human rights (knchr) published a statement reporting that 24 people were killed during the election period, between august 8 and august 12, 2017.64 human rights watch further reported that over 100 people were injured later that month.65 furthermore, the knchr recorded 25 deaths from 1 25 october 2017, with the second election taking place on october 26.66 on march 2018, the kenyan daily, the star, reported that cambridge analytica confirmed its involvement in not only in 2017, but also in 2013 kenyan presidential elections. 67 later it was disclosed that cambridge analytica’s strategy for mr. kenyatta, was “divisive propaganda,” raising ethnic enmity.68 the 2017 presidential candidates were, uhuru kenyatta, a kikuyu, the largest ethnic group, while raila odinga, a luo, a major community whose members chafe at years of exclusion, primarily at the hands of kikuyu elites.69 it is reported that during the campaign season, kenyan citizens received targeted text messages which led to the speculation that individuals’ voter registration information, social media data and telephone numbers were being independently linked.70 it also manipulated voters with 63jina moore, violence flares and tensions rise after kenya presidential vote. the new york times. last modified october 28, 2017 https://www.nytimes.com/2017/10/28/world/africa/kenya-election-uhuru-kenyattaraila-odinga.html. 64 justina crabtee. "here’s how cambridge analytica played a dominant role in kenya’s chaotic 2017 elections". cnbc.com. last modified march 23, 2018.https://www.cnbc.com/2018/03/23/cambridge-analytica-and-its-role-in-kenya2017-elections.html 65nairobi. "kenya: post-election killings, abuse". human right watch. last modified august 27, 2017, https://www.hrw.org/news/2017/08/27/kenya-post-election-killingsabuse. 66 cnbc, loc.cit. 67 cambridge analytica confirms involvement in kenyan elections. the star. last modified march 20, 2018 "https://www.the-star.co.ke/news/2018/03/20/cambridgeanalytica-confirms-involvement-in-kenyan-elections_c1732986. 68moore, jina. cambridge analytica had a role in kenya election, too. the new york times. last modified march 20, 2018. https://www.nytimes.com/2018/03/20/world/africa/kenya-cambridge-analyticaelection.html 69 amid fears of election violence, kenyans seek a way past inter-ethnic conflict. the guardian. last modified august 4, 2017. https://www.theguardian.com/commentisfree/2017/aug/04/fear-election-violence-kenyaethnic-divisions-hope-new-generation 70moore, jina. cambridge analytica had a role in kenya election, too. the new york times. last modified march 20, 2018. https://www.nytimes.com/2018/03/20/world/africa/kenya-cambridge-analyticaelection.html https://www.nytimes.com/2017/10/28/world/africa/kenya-election-uhuru-kenyatta-raila-odinga.html https://www.nytimes.com/2017/10/28/world/africa/kenya-election-uhuru-kenyatta-raila-odinga.html https://www.cnbc.com/2018/03/23/cambridge-analytica-and-its-role-in-kenya-2017-elections.html https://www.cnbc.com/2018/03/23/cambridge-analytica-and-its-role-in-kenya-2017-elections.html https://www.hrw.org/news/2017/08/27/kenya-post-election-killings-abuse https://www.hrw.org/news/2017/08/27/kenya-post-election-killings-abuse https://www.the-star.co.ke/news/2018/03/20/cambridge-analytica-confirms-involvement-in-kenyan-elections_c1732986 https://www.the-star.co.ke/news/2018/03/20/cambridge-analytica-confirms-involvement-in-kenyan-elections_c1732986 https://www.nytimes.com/2018/03/20/world/africa/kenya-cambridge-analytica-election.html https://www.nytimes.com/2018/03/20/world/africa/kenya-cambridge-analytica-election.html https://www.theguardian.com/commentisfree/2017/aug/04/fear-election-violence-kenya-ethnic-divisions-hope-new-generation https://www.theguardian.com/commentisfree/2017/aug/04/fear-election-violence-kenya-ethnic-divisions-hope-new-generation https://www.nytimes.com/2018/03/20/world/africa/kenya-cambridge-analytica-election.html https://www.nytimes.com/2018/03/20/world/africa/kenya-cambridge-analytica-election.html udayana journal of law and culture vol. 3 no. 1, january 2019 107 disinformation, apocalyptic attack ads and smeared kenyatta’s opponent raila odinga as a violent, corrupt and dangerous political figure. 71 the absence of a comprehensive data protection law safeguarding how data should be collected, processed, stored and retained, has also contributed to making the situation even worse. an improvement on personal data protection in kenya took place in 2015 when data protection bill was tabled in parliament, however, the bill has not yet passed until today.72 2.2. data protection law as a toolkit to control data profiling: a comparative study betweenthe european union andindonesia 2.2.1. the european union data protection has been acknowledged as a distinct fundamental right under eu law. it is affirmed, for instance, in article 16 of the treaty of the functioning of the eu as well as article 8 of the eu charter of fundamental rights. furthermore, the adoption of the eu gdpr in april 2016 marked a major development on personal data protection in europe. as eu regulation, the eu gdpr became directly applicable law in all eu’s member states and didn’t require implementation by the member states. however, some national legislation has been enacted in the member states to complete privacy protection legislation on a national level. the gdpr that entered into force on 25 may 2018, is comprehensive, covering almost all personal data processing. it is also significant, as its implementation will affect not only data controllers based within the eu, but also those that offer goods or services to or monitor the behaviour of, eu citizens. 73 or in other words, gdpr has extraterritorial effect. privacy international, a uk-based organization which aims to “fight for the right to privacy across the world”, outlines seven key principles of data protection that can be found in gdpr: 71 larry madowo. how cambridge analytica poisoned kenya’s democracy. the washington post. last modified march 20, 2018 https://www.washingtonpost.com/news/global-opinions/wp/2018/03/20/howcambridge-analytica-poisoned-kenyasdemocracy/?noredirect=on&utm_term=.4cf283c6a0ed 72 state of privacy indonesia. privacy international. january 2018, https://privacyinternational.org/state-privacy/1003/state-privacy-indonesia 73 privacy international (2018),op.cit., 17. https://www.washingtonpost.com/news/global-opinions/wp/2018/03/20/how-cambridge-analytica-poisoned-kenyas-democracy/?noredirect=on&utm_term=.4cf283c6a0ed https://www.washingtonpost.com/news/global-opinions/wp/2018/03/20/how-cambridge-analytica-poisoned-kenyas-democracy/?noredirect=on&utm_term=.4cf283c6a0ed https://www.washingtonpost.com/news/global-opinions/wp/2018/03/20/how-cambridge-analytica-poisoned-kenyas-democracy/?noredirect=on&utm_term=.4cf283c6a0ed https://privacyinternational.org/state-privacy/1003/state-privacy-indonesia data profiling and elections: has data-driven political campaign gone too far? alia yofira karunian, helka halme and ann-marie söderholm 108 illustration 1 data protection principles (source: privacy international, the keys to data protection, 2018) the existence of these principles automatically gives rise to several rights of the data subject. at minimum, the rights of data subject should include the following rights:74 a. right to information eu data protection laws require personal data processing to be done in a fair and transparent manner. all individuals must be informed about the purpose of processing their data and the risks involved. 75 all information must be provided in advance 74 privacy international, op.cit, 51. 75 gdpr, art.12,13,14. udayana journal of law and culture vol. 3 no. 1, january 2019 109 and in clear and plain language to allow all individuals to easily understand the rules, risks, safeguards and rights involved. b. right to access gdpr also provides the data subject with the right to access their data that has been processed. c. rights to rectify, block and erasure everyone also has the right to have their data rectified or removed if the data is inaccurate or erased if their data is being processed illegally. every person has the right to temporarily restrict processing if it’s not done in the right way. the accuracy of personal data is essential to ensure a high level of data protection for the individuals76. d. right to object article 21 (1) of the gdpr empowers everyone to raise objections on grounds relating to their personal situation. article 21 (2) of the gdpr provides a specific right to object to the use of personal data for the purposes of direct marketing. e. right to data portability individuals should have the right to obtain all of their personal data from a data controller in a universally machine-readable format or for that data to be ported to another service should they request it. f. rights related to profiling and automated-decision making everyone has the right not to be subjected to decisions based solely on automated processing, including profiling, that have legal effects or that significantly affect him or her77. automated decisions are decisions taken using personal data processed solely by automatic means without any human intervention. if such decisions are likely to have a significant impact on the lives of individuals as they relate, for example, to credit worthiness, erecruitment, performance at work, or the analysis of conduct or reliability, then special protection is necessary to avoid negative consequences. 76 gdpr, art. 15(1)(c), 15(1)(f),16,17(2), 21, recital 65. 77 gdpr, recital 71, art.4(4),22 data profiling and elections: has data-driven political campaign gone too far? alia yofira karunian, helka halme and ann-marie söderholm 110 g. right to an effective remedy individuals should have the right to an effective judicial remedy where they consider that their personal data was not processed in compliance with the law h. right to compensation and liability data subject whose rights have been found to be violated has a right to compensation for the damage material or non-material – suffered. now, how does gdpr, as data protection law, help to prevent opaque data profiling practice by data brokers? one of the gdpr principles that are relevant to the practice of profiling is the fair, lawful and transparent principle. this principle is related to the right to information and access, as these rights are essential to ensure fair and transparent processing of data. right to information of profiling is enshrined in article 13(2)(f) and article 14(2)(g) gdpr, while article 15(1)(h) gdpr provides the data subject with the right to access or obtain such information relating to profiling. all three articles regulate that data controller is obliged to provide meaningful information about the logic involved in profiling, as well as the significance and the envisaged consequences of such processing for the data subject.78 providing such information related to profiling would prevent data profiling actors to use and process data subjects’ personal data in unimaginable ways, help data subjects to understand more on how their data is used to create a profile, and what are the risks and consequences of the existence of such profiles. it is highly important to notify such risks and consequences of profiling because profiling itself has the potential to lead to the exclusion or discrimination of individuals.79 a 2015 study by carnegie mellon university researchers found that google’s online advertising system showed an ad for high-income jobs to men much more often than it showed the ad to women. 80 considering its inevitable risk to the enjoyment of human rights, transparency of profiling is therefore, paramount to the data subjects. aside from providing the data subject with the right to information related to profiling, adequate supervision mechanism is one way to control the way companies are using data. supervisory authorities can, if necessary, for example, reprimand or even fine the company, who is breaking the personal data protection regulation. eu’s member state’s national 78 gdpr, art.13(2)(f), 14(2)(g), 15(1)(h). 79 privacy international (2018),op.cit., 57. 80a. datta and m. c. tschantz, “automated experiments on ad privacy settings: a tale of opacity, choice and discrimination”, https://arxiv.org/pdf/1408.6491.pdf, 21. https://arxiv.org/pdf/1408.6491.pdf udayana journal of law and culture vol. 3 no. 1, january 2019 111 authorities have issued several fines under the gdpr. for instance, france data protection authority or known as (cnil) la commission nationale de l’informatique et des libertés fined google with €50 million (almost us$57 million) on january 2019. according to cnil, google’s data consent policies are not easily accessible and transparent, and therefore against the eugdpr.81 2.2.2. indonesia the 1945 constitution of the republic of indonesia does not specifically mention the right to privacy, however, article 28g protects the right to dignity and "to feel secure", concepts that are often related to the right to privacy in national constitutions. 82 moreover, indonesia has also ratified iccpr, 83 which ipso facto means that indonesia guarantees the right to privacy enshrined in article 17 iccpr. while the eu has gdpr which serves as the umbrella law that provides personal data protection, indonesia currently has no comprehensive personal data protection law yet. however,on november 2018, indonesian government announced that personal data protection bill has officially been included in the list of the priority bill in the 2019 national legislation program and the final draft is expected to be finalized before the end of the year.84 although no specific personal data protection law has been passed, guarantees of several aspects of personal data protection (for instance, information about the purpose of data processing, data retention duration, the disclosure of personal data to a third party, etc.) have been incorporated in several sectoral laws in indonesia.85 example of several sectoral laws that mention personal data protection in indonesia are, inter alia:86 1. law no. 1 year 1946 concerning the criminal code (kuhp); 2. law no. 8 year 1981 concerning the criminal procedure code (kuhap); 3. law no. 8 year 1997 concerning corporate documents (corporate documents law); 4. law no. 10 year 1998 concerning banking (banking law); 81the cnil’s restricted committee imposes a financial penalty of 50 million euros against google llc. cnil. last modified january 21, 2018.https://www.cnil.fr/en/cnilsrestricted-committee-imposes-financial-penalty-50-million-euros-against-google-llc. 82 state of privacy indonesia. privacy international. january 2018, https://privacyinternational.org/state-privacy/1003/state-privacy-indonesia. 83act no. 12 year of 2005 concerning the ratification of international covenant on civil and political rights of indonesia. 84 uu data pribadi masuk prioritas 2019". kominfo. https://kominfo.go.id/content/detail/15264/uu-data-pribadi-masuk-prioritas2019/0/sorotan_media 85elsam’s research found that there are at least 30 regulations which are related with the protection of personal data in indonesia; see wahyudi djafar, et.al., protection of personal data in indonesia (elsam: 2016): 28-49. 86 ibid., 29. https://www.cnil.fr/en/cnils-restricted-committee-imposes-financial-penalty-50-million-euros-against-google-llc https://www.cnil.fr/en/cnils-restricted-committee-imposes-financial-penalty-50-million-euros-against-google-llc https://privacyinternational.org/state-privacy/1003/state-privacy-indonesia https://kominfo.go.id/content/detail/15264/uu-data-pribadi-masuk-prioritas-2019/0/sorotan_media https://kominfo.go.id/content/detail/15264/uu-data-pribadi-masuk-prioritas-2019/0/sorotan_media data profiling and elections: has data-driven political campaign gone too far? alia yofira karunian, helka halme and ann-marie söderholm 112 5. law no. 8 year 1999 concerning consumer protection (consumer protection law); 6. law no. 23 year 1999 concerning bank of indonesia (bank of indonesia law); 7. law no. 31 year 1999 concerning the eradication of the crime of corruption (anti-corruption law); 8. law no. 36 year 1999 concerning telecommunications (telecommunications law); 9. law no. 39 year 1999 concerning human rights (human rights law); 10. law no. 30 year 2002 concerning the commission for the eradication of corruption (anti-corruption commission law); 11. law no. 15 year 2003 concerning stipulation of gr in lieu of law no. 1 of 2002 concerning the eradication of the crime of terrorism (anti-terror law); 12. law no. 18 year 2003 concerning legal advocates (advocate law); 13. law no. 29 year 2004 concerning the medical practice (medical practice law); 14. law no. 23 year 2006 concerning population administration (population administration law); 15. law no. 21 year 2007 concerning the eradication of the crime of human trafficking (anti-humantrafficking law); 16. law no. 11 year 2008 concerning electronic information and transaction (eit law); 17. law no. 14 year 2008 concerning freedom of information (foi law); 18. law no. 21 year 2008 concerning islamic banking (islamic banking law); 19. law no. 35 year 2009 concerning narcotics (narcotics law); 20. law no. 36 year 2009 concerning health (health law); 21. law no. 43 year 2009 concerning archiving (archival law); 22. law no. 44 year 2009 concerning hospitals (hospital law); 23. law no. 8 year 2010 concerning the prevention and eradication of the crime of money laundering (anti-money laundering law); 24. law no. 17 year 2011 concerning state intelligence (state intelligence law); 25. law no. 18 year 2011 concerning the amendment of law no. 22 of 2004 concerning the judicial commission (judicial commission law); 26. law no. 21 year 2011 concerning the financial services authority (financial services authority law); udayana journal of law and culture vol. 3 no. 1, january 2019 113 27. law no. 9 year 2013 concerning the prevention and eradication of the crime of terrorism funding (financing of terrorism law); 28. law no. 7 year 2014 concerning commerce (commerce law); 29. law no. 18 year 2014 concerning mental health (mental health law); and 30. law no. 36 year 2014 concerning medical personnel (medical personnel law). as can be seen above, various regulations which mention about personal data come from several different sectors, ranging from human rights, media and telecommunications, defence and security, judiciary, health, population administration, commerce and industry, as well as commerce.comparison of provisions on personal data protection in all 30 sectoral regulations will be further elaborated in a table below: table 1 comparison of provisions on personal data in various legislations in indonesia legislation recognition of personal data limitations mechanisms of protection i. human rights criminal code articles 430-434 articles 430-434 human rights law article 29(1) article 32 articles 76(1) and 89(3) anti-human trafficking law article 33 articles 29, 32 article 31 ii. media and telecommunication telecommunication law articles 40-42(1) articles 42(2), 43 articles 56-59 electronic information and transaction law articles 26(1), 31(1)-(2) dan 43(2) articles 31(3), 43(3) articles 26(2), 38, 47 freedom of information law articles 6(3)(c), 17(g)-(h), 19 article 18(2) articles 23, 26(1), 54 iii. defence and security anti-terrorism law articles 30-31 state intelligence law articles 31-34 articles 15(1), 47 financing of terrorism law article 9(1) article 9(3) article 9(2) iv. judiciary criminal procedural code articles 48(2)-(3) article 47 article 47(1) data profiling and elections: has data-driven political campaign gone too far? alia yofira karunian, helka halme and ann-marie söderholm 114 anti-corruption law articles 26, 29, 30 article 31 anti-corruption commission law articles 12(a), (c), (f) article 47(1) advocate law articles 19(1)-(2) article 19(1) judicial committee law article 20a (1) (c) articles 20 (3)(4) article 20a(2) v. archiving and population administration population administration law articles 1 (22), 2 (c) and 84-86 article 87 articles 2(f), 95, 98(2) archival law articles 5, 6 (5), 7 (g), 9, 34-35, 40, 44, 49 (b), 51-52, 66 (2), (5)(6) articles 66 (1), (3) (i), (7) articles 80 85-86 vi. health medical practice law articles 46, 47, 48 (1) 51 (c) and 52 (e) article 48 (2) articles 64, 6670, 79 and chapter ix narcotics law articles 75(i), 77-78, 80 health law articles 8, 57 (1) and 189 (2) (c) article 57 (2) articles 58 (1) and 182-188 hospital law articles 29 (1) (h), (l), (m), 32 (i), 38 (1) and 44 article 38 (2) articles 54-55 mental health law articles 68(d), 70(1)(e) articles 71-72, 74 medical personnel law articles 58 (1) (c) and 70-73 (1) article 73 (2) article 82 (1) vii. finances and banking banking law articles 1 (28), 40 (1) articles 40-44a articles 29 (1), 47 and 47a central bank law articles 24, 27, 34, 35 islamic banking law article 41 articles 42-49 articles 42(2), 50, 57, 60, 61 anti-money laundering law articles 11 (1), 40 (b), 42, 54 (2) and 83 (1) articles 11 (1), (3), 28, 41 (1) (a), (2), 44 (1) (h), 45, 72 articles 11 (2), 72 (5) and 83 (2) financial service authority law article 33 (1)-(3) article 33 (1)-(3) articles 5, 6 (a), 7, 33 (4) and 52 udayana journal of law and culture vol. 3 no. 1, january 2019 115 viii. commerce and industry corporate documents law articles 4, 11(3)(4) articles 11(5), 18, 19(2), 21 consumer protection law trade law article 65(3) articles 65(5)-(6) (source: wahyudi djafar, et.al., personal data protection in indonesia) several regulations acknowledged that the right to privacy can be restricted by the interests of law enforcement by certain agencies and for the acceptance of certain positions. 87 moreover, the authority to oversee the implementation of data management without specifying the protection mechanisms is also present in several regulations.88in circumstances where privacy right of the data subject is violated, several regulations providedifferent sanctions ranging from criminal to administrative sanctions.89 aside of the 30 regulations above, indonesian government on 2012, issued the government regulation no. 82 of 2012 on electronic system and transaction operation, that mentions about personal data protection on ‘electronic system’. 90 moreover, in 2016, the minister of communication and informatics issued regulation no. 20 of 2016 on personal data protection in electronic systems. however, unlike the eu gdpr which specifically provides the data subjects the right to information relating to profiling and establishes independent supervisory authority mechanism, all indonesia’ssectoral regulations that mentions personal data protection that have been mentioned above, do not provide the data subjects with the right to information relating to data profiling and establish any independent supervisory mechanism.with no right to information relating to data 87 for instance, the criminal code gives authorisation to the police to access personal letter relating to a crime, or the health law excludes the principle of confidentiality of patient health records only for the interests of law enforcement and when the patient is applying for a certain position or profession; see wahyudi djafar, op.cit., 50. 88only several regulations govern in detail the mechanism of protection of personal data in varied ways. for instance, in the criminal procedural code and eit law, the police authority must be based on the decision of the chair of the district court. while the anti money laundering law and the anti-corruption commission law, the authority of ppatk and kpk to access personal data are not subject to permission from the chair of the district court, but simply based on adequate evidence and the permission of the head of these institutions internally; see ibid. 89for example in the telecommunications law and the terrorism financing law, leakage of data protection is threatened with imprisonment. while, the national intelligence law and the kpk law, abuses of authority through wiretapping, resulting in the intervention of privacy rights of citizens, can be punished and fined; see ibid. 90article 1(1) of the government regulation no. 82 of 2012 on electronic system and transaction operation defines electronic system as a series of devices and electronic procedures that serve to prepare, collect, process, analyze, store, display, publish, transmit, and/or distribute electronic information. data profiling and elections: has data-driven political campaign gone too far? alia yofira karunian, helka halme and ann-marie söderholm 116 profiling and, it would be hard for indonesians to understand more on how their data is used to create a profile, and what are the risks and consequences of the existence of such profiles. furthermore, the absence of independent supervisory mechanism would open the door fordata profiling actors to use and process indonesians’ personal data in unimaginable ways for political purposes. once profiles have been created, the next stage would be sending tailored political messages to targeted individuals. as explained above, 91 both pmt and pbt use digital campaigns (especially social media) as one of the core strategies. as for indonesia, the government allows the possibility of social media being used as one of the means to influence voters during the election campaign season. this provision can be found in article 287(1) of law no. 7 year 2017 concerning general elections, where indonesian government clearly stipulates that the advertising of elections campaign can be conducted through social media. article 1(30) of general elections commission regulation no. 23 year 2018 further defines campaigns ads as: “....the delivery of campaign messages through printed media, electronic media, network media, social media, and broadcasting institutions, in written form, drawing, animation, promotion, sound, demonstration, theatrics, debates, and other forms intended to introduce election candidates or convince voters to support the election candidates.” however, article 37 of general elections commission regulation no. 23 year of 2018 imposes limitations to political ads circulated in social media, by limiting its ad spot to only 1 (one) spot and with a maximum duration of 30 (thirty) seconds for every social media per day. however, even with the restrictions, the absence of a comprehensive data protection law that provides the data subjects the right to information related to data profiling in indonesia would make indonesia prone to unfair and non-transparent data profiling for political purpose. 3. conclusion and recommendation electoral politics has now become fully integrated with commercial digital media and marketing ecosystem. this has taken the term data-driven political campaign to whole another level. a vast amount of data is being collected, analysed, and used to craft tailored political messages to each individual. this results on violation of data subject’s right to privacy, opens potential manipulation and enables campaigns to send tailored messages directly to citizens, thereby avoiding scrutiny from journalists. 91see section 2.1.1. udayana journal of law and culture vol. 3 no. 1, january 2019 117 under gdpr, data profiling is not forbidden, however, the implementation of data profiling must be transparent and easily accessible, where gdpr’s safeguards are properly considered and data subjects have agreed to have their data collected for this specific use. for this reason, data protection serves as a tool to prevent unfair and non-transparent data profiling practices by imposing data controller to provide data subject about meaningful information about profiling and establishing an adequate supervisory mechanism. the eu gdpr regulates that data controller is obliged to provide meaningful information about the logic involved in profiling, as well as the significance and the envisaged consequences of such processing for the data subject. providing such information would help data subjects to understand risks and consequences of profiling as profiling itself has the potential to lead to the exclusion or discrimination of individuals. indonesia, on the other hand, have no comprehensive personal data protection law. several aspects of personal data protection principles can be found in several sectoral regulations in indonesia, but still, these regulations are deeply flawed as it does not comprehensively protect personal data in indonesia. for instance, there is no regulation that provides the data subjects with the right to information related to data profiling in indonesia. moreover, there is no clear and adequate supervisory mechanism over companies who collects and process personal data in indonesia. the absence of a comprehensive data protection law in indonesia would, therefore, make indonesia vulnerable to unfair and non-transparent data profiling for political purpose. ergo, having in mind that indonesia is currently gearing up for the 2019 general election, a comprehensive data protection law is urgently needed. data profiling and elections: has data-driven political 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alia yofira karunian, helka halme and ann-marie söderholm 122 uu data pribadimasukprioritas 2019". kominfohttps://kominfo.go.id/content/detail/15264/uu-datapribadi-masuk-prioritas-2019/0/sorotan_media satariano, adam. g.d.p.r., a new privacy law, makes europe world’s leading tech watchdog. the new york times. last modified march 24, 2018. https://www.nytimes.com/2018/05/24/technology/europe-gdprprivacy.html state of privacy indonesia. privacy international. january 2018, https://privacyinternational.org/state-privacy/1003/state-privacyindonesia. state of privacy kenya. privacy international. january 2018, https://privacyinternational.org/state-privacy/1005/state-privacykenya#dataprotection the cnil’s restricted committee imposes a financial penalty of 50 million euros against google llc. cnil. last modified january 21, 2018.https://www.cnil.fr/en/cnils-restricted-committee-imposesfinancial-penalty-50-million-euros-against-google-llc. the foundation of international human rights law. united nations. www.un.org/en/sections/universal-declaration/foundationinternational-human-rights-law/index.html tucker, patrick. defense one, “refugee or terrorist? 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"psycho-cultural perspective on the formation of entrepreneurial culture of minangkabau tribe in west sumatra indonesia." udayana journal of law and culture 3, no. 1: 53-77. https://doi.org/10.24843/ujlc.2019.v03.i01.p03. doi: https://doi.org/10.24843/ujlc.2019.v03.i01.p03 * email/corresponding author: hafiz.rahman@fekon.unand.ac.id * * email: sri.oktavia@fhuk.unand.ac.id * * * email: eribesra@eb.unand.ac.id https://ojs.unud.ac.id/index.php/ujlc/issue/view/3028 https://doi.org/10.24843/ujlc.2019.v03.i01.p03 mailto:hafiz.rahman@fekon.unand.ac.id mailto:sri.oktavia@fhuk.unand.ac.id mailto:eribesra@eb.unand.ac.id psycho-cultural perspective on the formation of entrepreneurial culture of minangkabau tribe in west sumatra indonesia hafiz rahman, sri oktavia, and eri besra 54 1. introduction 1.1. background minangkabau is a tribe that lives in the province of west sumatra (provinsi sumatera barat) indonesia. statistical data shows that most minangkabau people are islam (97,88% of all population).2 no wonder we can find mosques spreading in all part of the province. as its fundamental way of life is based on islam, most ceremonies and festivals rooted from the islamic spirits. the minangkabau tribe is well recognized as a moderate moslem society in indonesia.3 its people are very tolerant and can easily mingle with other people from different tribes and religions. they can also easily adapt to different circumstances and places, lead to an ability too easily live outside of their homeland, which actually requires high adaptation with the social situation and condition. despite its uniqueness, the minangkabau tribe, however, is considered as a minority tribe in indonesia. based on statistics, the population of west sumatra province is only around 5.26 million – about 1,98% of indonesian population as a whole.4 the social system of the tribe, which is reflected by the relationship among family members, local norms and values, is one of the most important pillar in the life of minangkabau people. the minangkabau people follow the ‘matrilineal system’ as their kinship/family system. in this system, females are regarded as very important figures in the extended family and can determine various important decisions for the whole family, especially those that are related to the cultural issues (the legacies and assets of the clan, cultural festivals and ceremonies, etc.). males in the minangkabau tribe are mainly urged to meet economic expectations and demands from their big family, mainly their wife’s family. this unique kinship system encourages minangkabau’s males never depend on their family legacies and assets to fulfill their financial needs as well as to provide funds for their family. therefore, the self-reliance has become a major value in the social system of minangkabau family since centuries ago. along with the condition of the lack of revenue from agricultural sectors (as a result of the geographic landscape which is mostly mountains and hills) and difficult employment opportunities in indonesia, the value of self-reliance has propelled minangkabau males to choose other alternative work and career choice for their life. this is mainly associated with their choice of becoming an entrepreneur and, for doing this, the males mostly emigrate to another part of the country, or even abroad. minangkabau has a well-known cultural concept called merantau, where people from this tribe emigrate from their homeland to other parts of indonesia and/or abroad for doing entrepreneurial and another kind of activities for the sake of their future life. the learning process is then 2 statistics indonesia, sumatera barat dalam angka [west sumatra in numbers], badan pusat statistik indonesia-west sumatra province, padang: indonesia, 2017 3 see samad, duski, “tradisionalisme di minangkabau: dinamika, perubahan dan kontinuitasnya.” tajdid: jurnal nasional ilmu-ilmu ushuluddin6, no. 2, (2003), see also tungkagi, donald qomaidiansyah. “varian islam nusantara” jawa, minangkabau dan gorontalo.” jurnal lektur keagamaan 15, no. 2 (2017). 273-294. 4 statistics indonesia, sumatera barat dalam angka, op.cit. udayana journal of law and culture vol. 3 no. 1, january 2019 55 initially started. there is assistance of mentors (who are also the minangkabau entrepreneurs) who provide short-term employment opportunities in their businesses. in this initial stage the minangkabau males become an informal trader until they can settle-up themselves. once they have settled-up, theyswitch themselves into a more formal business. the businesses in this initial stage vary, but they are mostly in trading and culinary sectors. learning processes are soon started during this stage. the young also settle up themselves, saving money from their own salary and once they are ready they are encouraged by mentors to start their own businesses by using their savings. if the savings is not enough, sometimes, they use a small loan from relatives to initiate the business. in the philosophy of minangkabau entrepreneurs, one successful entrepreneur should create at least three young/nascent entrepreneurs,5 so there will be multiplier effects that occur during the creation of minangkabau entrepreneurs. this philosophy is successfully implemented within minangkabau entrepreneurs and as a positive consequence, one can find many minangkabau entrepreneurs nationwide. the presence of merantau can be viewed as one source of cultural based entrepreneurial learning process within minangkabau tribe. for some scholars, merantau is viewed as a result of a combination between culture, values and kinship system of minangkabau people as a matrilineal society.6 these combined factors have contributed to the formation and the creation of a very supportive environment in the entrepreneurial culture of minangkabau. it is interesting to see how those three elements contribute to the formation of anentrepreneurial culture that raised within this tribe since centuries ago. therefore, analysis of this paper is centered on the cultural dimension, perceived value, kinship system and the description of the process of merantau amongst the minangkabau tribe. a comparative analysis of indonesian cultural dimension and perceived values were also undertaken in this paper to show the difference between the minangkabau tribe as a society and indonesian people in general. it is worth to reveal that the culture of merantau does not relate to lack of business climate in west sumatera as the government has organized structure to set up technical policy, implement government affairs and public services as well as to foster and facilitate cooperatives, small and medium enterprises. 7 in addition, the culture of merantau also does not reflect the weakness of the customary institution to play a role in achieving the wealth society. in facts, the customary institution has a strong position as local regulations recognized its existence in supporting local economy. a clear example can be seen from the legal authorization given kerapatan adat 5 elfindri, desri ayunda and wiko saputra. minang entrepreneurship (jakarta: baduose media, 2010), 24. 6 see auda murad “merantau: aspects of outmigration of the minangkabau people (master thesis, department of demography, australian national university, canberra, 1978). see also muchtar naim, “merantau” (dissertation, department of sociology universitas gadjah mada, 1984). 7 regulation of governor of west sumatra no. 57 year 2017 concerning description of the main duties and functions of the service of cooperatives, small and medium businesses, west sumatera province, article 2 (2). psycho-cultural perspective on the formation of entrepreneurial culture of minangkabau tribe in west sumatra indonesia hafiz rahman, sri oktavia, and eri besra 56 nagari to manage people’s market. 8 it then becomes clear that law and regulation do not act as a barrier, or even a reason, for minangkabau people to practice merantau. 1.1. research problem research problem elaborated in this paper centered on the focus regarding the entrepreneurial culture of a society. in details, the research question of this study is: 1. can perceived value, cultural dimension and kinship system mediated by an informal entrepreneurial learning process of society contribute to the creation and development of a supportive entrepreneurial culture within that society? 2. if yes, then what would be the mechanism/model that can be built to show it? 1.2. method the study operates qualitative methodology as its research method. descriptive analysis by comparing the cultural dimension of indonesian people in general and the culture of the minangkabau tribe, in particular, is used to investigate culture that can or cannot support entrepreneurship. cross-sectional data and information were collected from secondary data in term of related studies on the relationship between culture and entrepreneurship as well as studies regarding the process of merantau and culture of minangkabau tribe. a reflexive observation to minangkabau people was also used to support data and information of the study. this study uses minangkabau people – an ethnic living in west sumatra, indonesia as the main context of the study. minangkabau people was chosen because it is famous as an entrepreneurial tribal society in indonesia. information regarding the entrepreneurial journey, culture and experience of this tribe was then used as the main source for analysis. 1.3. literature review the presence and overview of the cultural context that relates to entrepreneurship have been widely studied by scholars. the relationship between culture, entrepreneurship and economic growth has been previously studied by scholars. 9 as doepke and zilliboti, among others, indicate that the growth rate of the economy depends on the fraction of the population choosing an entrepreneurial career and there can be multiple balanced-growth paths, wherein faster-growing countries more people 8 regulation of west sumatra province no. 3 year 2016 concerning development and empowerment of the people's market, art 10 (c) and 13 9 see josé guilherme leitão dantas, antonio carrizo moreira, and fernando valente. “entrepreneurship and national culture: how cultural differences among countries explain entrepreneurial activity,”in handbook of research on internationalization of entrepreneurial innovation in the global economy, ed. l.c. carvalho (hershey, pa: igi global, 2015) 1-28. see also helena marques, “the routineness of tasks, gender and culture in entrepreneurship.”socio-economic review 15, no 4 (2017): 817. see also clement c.m. ajekwe, “effect of culture on entrepreneurship in nigeria” international journal of business and management invention 6, no 2, (2017): 1. udayana journal of law and culture vol. 3 no. 1, january 2019 57 exhibit an entrepreneurial spirit.10 however, the results of many studies, unfortunately, cannot generalize the idea and argument about the complex role of culture in the success and failure of business ownership. 11 this complex role of culture is understandable because one cannot extract and generalize culture of each social system and network as the same one to each other. therefore, studies and research that were intended to explain the presence of culture on entrepreneurship became more complicated and we cannot clearly summarize the tendency of a particular culture that can promote entrepreneurship. many scholars have argued and viewed that the entrepreneurial spirit of individuals requires appropriate social and cultural backgrounds as a solidmotive for new venture creation.12 however, cultural background with its complexities and contextual difference remain very difficult to analyse. as a consequence, the study of culture needs to use a substantial system approach to analyze individuals’ response to their environment.13 another way that can be used to relate the culture of a society to entrepreneurship is based on the psycho-cultural perspective of a society. regarding the term, english oxford living dictionaries, by referring to earliest use found in american journal of sociology in 1920s, defines psycho-cultural as the interaction between the culture in which indivduals live and their psychological characteristics. 14 the using psycho-cultural profile of individuals is not a usual approach to analyze the relationship between culture and entrepreneurship, but one should realize that there is a linkage between psycho-cultural of individuals and their propensity for entrepreneurship, which will further impact the economic development of a regional. a recent study from huggins et.al., for example, has clearly indicated that there is a relationship between psycho-cultural profiles and behavior of individuals and economic growth performance of the regional where individuals live.15 previously, pollnac and poggie argued that there is a linkage between production and psycho-cultural adaptation of individual which will further lead to the increasing performance of cooperatives.16 both studies have further given us a solid basis and foundation to develop a perspective that can relate psycho-cultural of individuals to their propensity for entrepreneurship. 10 mathias doepke, and fabrizio zilliboti,“culture, entrepreneurship and growth”, working paper 191.41. cambridge, ma: nber working paper series ( 2013): 4. 11 ingrid verheul, sanders wennekers, david. audretsch and roy thurik, an eclectic theory of entrepreneurship: policies, institutions and culture, (zoetermeer, the netherlands: eim business and policy research, 2001), 37 12 alison, morrison, “entrepreneurship: what triggers it?” international journal of entrepreneurial behaviour and research 6, no. 2 (2000): 63 13 gert hofstede, culture consequences (newbury park, ca: sage, 1980) 14 english oxford living dictionaries, https://en.oxforddictionaries.com/definition/psychocultural 15 robert huggins, piers thompson, and martin obschonka. “human behaviour and economic growth: a psychocultural perspective on local and regional development.” environment and planning a 50, no. 6 (2018): 4. 16 richard b. pollnac and john j. poggie “psychocultural adaptation and development policy for small-scale fishermen's cooperatives in ecuador.” human organization 50, no. 1(1991): 43. psycho-cultural perspective on the formation of entrepreneurial culture of minangkabau tribe in west sumatra indonesia hafiz rahman, sri oktavia, and eri besra 58 as defined by hofstede, culture is an aggregate of interactive common characteristics that may impact a human’s group response to its environment.17 considering this, every society has been viewed as having its own specific cultural dimensions and this will further create the national culture of each country. for the interest of finding a solid academic and intellectual basis for its analysis, this paper concentrates its overview to five cultural dimensions, as other studies in different countries, usually used as the foundation to analyze the relationship between culture and entrepreneurship. these five cultural dimensions are: 1. power distance power distance relates to the overview on how less powerful members of societies from smaller to a bigger unit (such as a family) within a country may expect and accept that the power is actually distributed unequally. it argues that the level of inequality within a society is unconsciously and/or consciously approved by members of that society as well as by the leaders. power and inequality are considered as an extremely fundamental factthatexists in any society. anybody with some international experiences willu nderstand that all ‘societies are unequal, but some are actually more unequal than others'. the cultural dimension of a country and a society which is considered as a ‘low power distance’ is related to the fact that those countries and societies try to minimise inequalities. the less powerful parties in these societies will look at parties who are having more power to make decisions, and as a consequence, the inequality within this society is more acceptable. this is represented by the presence of power centralisation and the fact that there will be the subordination of those with less power within the societies. the power distance index is ranging from 1 – 100.18 the more inequality will be found within any society if the power distance index tends to higher. 2. individualism vs collectivism individualism and collectivism are viewed as the degree to which individuals are integrated and mingled into the group of their interest. in an individualistic society, people are first expected to look after themselves and their families – and once they have done this, they will start to look at others in their society. in the other side, the collectivist society prefers to integrate and to become one with others starting from their birth onwards. the main sign of a collective society can be seen by the cohesiveness between the members which continues to protect each other, but in the exchange for unquestioning loyalty. in a more collective society, members are more concerned and paid attention to others and their culture is often based around the cohesiveness of the group. the measurement of the continuum between the individualism and collectivism is presented in an index which is ranging from 1 – 100.19 a 17 gert hofstede (1980), op.cit.,3. 18 ibid, 5. 19 ibid, 6 and gert hofstede (2018). “national culture of indonesia.” http://geerthofstede.com/indonesia.html http://geert-hofstede.com/indonesia.html http://geert-hofstede.com/indonesia.html udayana journal of law and culture vol. 3 no. 1, january 2019 59 society is called an individualist society if the index of the individualism is bigger. 3. masculinity vs femininity this cultural dimension relates to the degree to which gender roles are distinct and adhered to within a society. it also considers the distribution of roles between genders as another fundamental issue for any society that can influence the formulation of solution to problems. in a more femininity society, social gender roles will overlap. members of that society will regard ‘feminine’ qualities such as modesty, intuition and quality of life more than traditionally ‘masculine’ qualities that are related to aggression and competition. there will be a gap between values in a society with more feminine qualities with those who are living a more assertive and competitive culture. following hofstede, we use the index between femininity and masculinity of a society which ranges from 1 – 100.20 the higher the index of masculinity is, the more masculine a society will be. 4. uncertainty avoidance uncertainty avoidance relates to the feeling of threatened felt by members of a society. this feeling usually comes from uncertain and unknown situations and it also deals with the level of tolerance to tackle the uncertainty and ambiguity. a society with high uncertainty avoidance tends to try to minimize the uncertainty by putting strict law and rules in order, as well as implementing safety and security procedures and measurements. laws, rules, safety and security procedures are being used by some societies in order to minimize the potential of conflicts and disputes raised among members of the society. in west sumatra in particular, the minangkabau tribe traditionally use plural legal principles deriving from hukum adat/adat law or customary law, islamic law, and national law, which mostly derived from dutch colonial law as a pattern to resolve conflict and disputes among the member of the tribe typically, people who are living in this society are more emotional and are mostly motivated by inner nervous energy. contrastingly, a society with more ability to accept the uncertainty is considered as a more tolerant society and tends to have as few rules as possible. we use the index of uncertainty avoidance of a society which ranges from 1 – 100.21 the higher the index of uai is, the more a society tends to avoid uncertainty. 5. long term orientation the long-term orientation of a society is the fifth cultural dimension that was first introduced in a study among students in twenty-three countries around the world designed by chinese scholars. long-term 20 gert hofstede (1980), op.cit.,7 and gert hofstede (2018). “national culture of indonesia.” http://geert-hofstede.com/indonesia.html 21 ibid, 8 and gert hofstede (2018). “national culture of indonesia.” http://geerthofstede.com/indonesia.html http://geert-hofstede.com/indonesia.html http://geert-hofstede.com/indonesia.html http://geert-hofstede.com/indonesia.html psycho-cultural perspective on the formation of entrepreneurial culture of minangkabau tribe in west sumatra indonesia hafiz rahman, sri oktavia, and eri besra 60 orientation deals with virtue regardless of the truth. values associated with long term orientation are thrift and perseverance, meanwhile, values that are associated with short term orientation are respected for tradition, fulfilling social obligations, and protecting one's 'face'. in the newest concept of cultural dimension, hofstede (2018) adds two more dimensions, namely pragmatism and indulgence and pulls out the dimension of long term orientation in cultural dimensions of a country.22 pragmatism is related to the efforts of every society in dealing with its past, present and future challenges. indulgence is defined as the ability of the people in society to control their desires and impulses. in the context of entrepreneurship as a field of study, relevant analysis and focus to measure the presence of cultural dimension to the propensity of the society for entrepreneurship are given in the continuum of individualism and collectivism. 23 hofstede has previously viewed that the individualist culture tends to foster the development of individuals’ selfconcept, awareness of responsibility, and the existence of competition that may further promote new ideas and innovations. 24 on the other hand, collectivist societies may actually develop anti-entrepreneurial environments by forcing members of the society to accept norms, developing compromising circumstance, and resistance to change. therefore, this environment may not be favourable to foster an entrepreneurial culture and in many cases, this type of society tends to hinder entrepreneurial processes. tanner previously mentioned the typical forms of dispute and conflict resolution within minangkabau tribe consist of the use of [a] adat law as the main customary law in west sumatra, [b] islamic law and, [c] indonesian national law.25 this can further explain why people in individualist culture (such as the western people) are more entrepreneurial compared with people living in the collectivist culture. morris samit further mentioned that the power distance as one of the cultural dimensions also took part in determining whether society provides favourable or detrimental conditions for entrepreneurship. 26 the higher power distance within the culture of a societywillbe a detrimental condition for the propensity of entrepreneurship. meanwhile, the lower power distance society will enjoy a more favourable condition for the development of entrepreneurship.21 it is widely argued that culture of a society is important in any discussion of entrepreneurship since it will determine the attitudes and motives of individuals towards the initiation and propensity of 22 gert hofstede (2018). “national culture of indonesia.” http://geerthofstede.com/indonesia.html. 23morris samit, “cultural effects on entrepreneurial decision making: why every society can’t be entrepreneurial.” paper presented at aib-se (usa) annual meeting, charleston, sc, (2005). 21-34. 24 gert hofstede (1980), op.cit.,10. 25 nancy tanner, “disputing and dispute settlement among minangkabau of indonesia.” foreign area program and a southeast asia grant-in-aid berkeley: university of california, 1963., 24. 20 morris samit, op.cit. 21-34 http://geert-hofstede.com/indonesia.html http://geert-hofstede.com/indonesia.html udayana journal of law and culture vol. 3 no. 1, january 2019 61 entrepreneurship. 27 it has been long time, scholars agreed scholars that entrepreneurial spirit-motive-initiation should be supported byan appropriate social and cultural background for new venture creation.28f or example, carter and jones-evans have previously in detail emphasized that “the culture of societies and characteristics of people living in the societies, impacted by certain innate personality traits, will influence the degree to which entrepreneurship is initiated.”29 the argument regarding the importance of culture for the propensity of entrepreneurship is also followed by aldrich and martinez who further stressed that individuals will be motivated and attracted to enter into entrepreneurship once they feel that the culture where they live in has a history in encouraging entrepreneurship.30 for these individuals, cultural norms and values are beneficial since they can use them as an access to resources (such as knowledge, information, finance, workers, and markets) that they need for establishing and maintaining the business.31 the agreement related to culture as one fundamental circumstance for the propensity of entrepreneurship within a society is also mentioned by the global entrepreneurship monitor (gem) global report 2011. the gem in 2011 has elaborated nine entrepreneurship framework conditions (efc) as the determinants of entrepreneurship. this is further derived into three considerations; (a) basic requirements, (b) efficiency enhancers, and (c) innovation and entrepreneurship. the gem global report 2011 also drewits attention into the cultural context and social norms that are being considered as a part of an institutional framework that relates to entrepreneurship. shane et al. are other entrepreneurship scholars who emphasised their study to analyse three aspects in hofstede’s concept of cultural dimensions.32 theyfound that the society with more uncertainty avoiding, more power distant, and more collective, will create a room for their members to become a champion to work through organizational norms and rules, to gain support of those in authority, and to get support for any innovation effort. 33 in a more straight result and summary that relates culture to the propensity of entrepreneurship of a society, hayton, george and zahra found that the society with highertendency to be more individualism; more masculine, more uncertainty avoidance but less power 27heidi vernon-wortzel and lawrence h. wortzel.strategic management in a global economy (new york: john wiley, 1997), 27 28 kathryn watson, sandra hogarth-scott and nicholas wilson, “small business starts-up: success factors and support implications.” international journal of entrepreneurial behaviour and research 4, no 3 (1998); 217-238 29sara carter and dylan jones-evans. enterprise and small business: principles, practice and policy 3, (harlow: pearson education, 2008) 30howard e. aldrich and martha angelia martinez. many are called, but few are chosen: an evolutionary perspective for the study of entrepreneurship(chapel hill, nc: university of north carolina, 2001). 31 john grace and peter smith, “the importance of culture in entrepreneurship. ”culture and entrepreneurship series, no. 16, (2016): 3. 32scott shane, sankaran venkataraman and ian macmillan, ”cultural differences in innovation championing strategies.” journal of management, 21 no 50, (1995):932. 33ibid, 932 psycho-cultural perspective on the formation of entrepreneurial culture of minangkabau tribe in west sumatra indonesia hafiz rahman, sri oktavia, and eri besra 62 distance is a society that can create supportive environment for the development of entrepreneurship. 34 another newer finding regarding the analysis of culture and entrepreneurship can be found in the study of fernández-serrano and lińán who investigated the culture of several latin america countries and its relationship with entrepreneurship.35they discovered that in the countries which are condensed with the culture of hierarchy will tend to have lower entrepreneurship level, while the countries with higher level of embeddedness and egalitarianism tend to have a supportive environment of start-up companies.36 the previously discussed studies highlight a number of points; [a] the greater indexes of individualism, [b] masculinity, [c] the lower indexes of uncertainty avoidance, and [d] smaller power distance may be the prerequisite circumstances for the supportive environment to foster the propensity for entrepreneurship within a society. meanwhile, a society which has lower indexes of individualism and masculinity along with the greater indexes of uncertainty avoidance and power distance will create a burden and detrimentfor the development of entrepreneurship in a society. islam has traditionally become the basis and foundation in the culture ofminangkabau tribe. therefore, the tribe’s cultural occasions and festivals are mostly rooted from the islamic values. minangkabau people describe this in their cultural philosophy; the tradition (in indonesian language, adat) is based on islam and islam is founded upon the holy quran, as the book of moslem. the majority of the minangkabau tribe are fervent muslims. however, they always embraced the idea of incorporating islamic ideals into the modern society. consequently, the minangkabau people is well-known and considered as one of the most moderate muslim populations in indonesia. the presence of intellectuals combined with the ability to absorb the essence of religiosity as well as the basic character of the tribe have made minangkabau people and land becomes a unique place to live and special people to mingle with. the minangkabau people recognize the presence and existence of three main important actors in their culture that are positioned as the pillar that build and maintain its integrity. they are alim ulama (islam scholars), cerdik pandai (intellectual) and ninik mamak (uncles and leaders of the tribe). alim ulama maintains the integrity of the religion (islam), cerdikpandai maintains the integrity of knowledge and ninik mamak maintains the integrity of customs and tradition. jointly together, they constitute the main foundation for the culture of the tribe and are named as tungku tigo sajarangan. these three parties and the whole members of minangkabau tribe have long experience and taken benefits from the democratic system developed by its culture.37 this can be seen by the fact that all matters regarding the future interests of the tribe are discussed by 34james c. hayton, gerard george and shaker a. zahra, “national culture and entrepreneurship: a review of behavioral research.” entrepreneurship theory and practice 26, no. 4 (2002): 33-52. 35 jose fernández-serrano and francisco lińán, “culture & entrepreneurship: the case of latin america.” innovar edición especial 2014, no. 24 (2014): 173. 36ibid, 175. 37muchtar naim, op.cit., 37 udayana journal of law and culture vol. 3 no. 1, january 2019 63 tungku tigo sajarangan. as a consequence, all members of the tribe are gaining benefits from the democratic system that is culturally developed to solve problems and make decisions. another benefit is related to the wellknown characteristics of minangkabau people, which are described as people with spacious thinking, freedom of life to change the fate and to reach knowledge and wealth.38 minangkabau people have positive habits to think carefully and correctly and analyze all knowledge critically – but still applying hospitality and the principle of friendliness as part of their basic character. therefore, this tribe is characterized and recognized as a more egalitarian tribe in indonesia compared with some other tribes in indonesia. the existence of family and culture always become important elements of life for the minangkabau people. the minangkabau tribe embraces the ‘matrilineal system’ as their kinship/family system. a consequence of this kinship system is shown for example,in the management of family properties such as land and houses, which are inherited through female lineage. the matrilineal system puts females in a very important position in the family. females decide important decisions for the whole family, especially if the decisions are related to the cultural and tradition issues (the legacies, assets of the clan, cultural ceremonies etc.). from a legal perspective, the west sumatra provincial government has even strengthened the position of females in matrilineal system in west sumatra, for example, by stipulating a rule regarding “tanah ulayat” or communal land. regulation of west sumatra province no. 16 year 2008 concerning communal land and its utilization clearly states that the ownership and utilization of communal law in west sumatra is given to those who are coming from descendants of the mother.39 the ability to survive during living outside of the homeland (merantau) is considered as a success indicator for the minangkabau people. merantau has become a part of the culture of the minangkabau tribe – as the main nature of minangkabau people which is mobile and prefer for not working to other people or under the order of other people. in merantau, the young people are encouraged by the closest family members (mostly father and siblings) and their social figures (such as the ninikmamak and friends) to leave their homeland; emigrate to other places nationwide or abroad and undertakebusiness activities for their daily life. in the past, the process of merantau was started when the kids (mostly boys) as early as the age of ten to twelve. it isthe period when boys are traditionally encouraged by their parents and big family to take part actively (and even, by live) in surau (a smaller muslim prayer house compared to the mosque which is also functioned asthe community center) within their neighbourhood. in surau, 38alexander stark, “the matrilineal system of the minangkabau and its persistence throughout history: a structural perspective.” southeast asia: a multidisciplinary journal 13 (2013): 11. 39 regulation of west sumatra province no. 16 year 2008 concerning communal land and its utilization, art. 1 (11) and (18), art. 2(3) and art. 6(1). see also regulation of governor of west sumatra no. 21 year 2012 concerning guidance and procedures of the utilization of communial land for investment, art 1 (12). psycho-cultural perspective on the formation of entrepreneurial culture of minangkabau tribe in west sumatra indonesia hafiz rahman, sri oktavia, and eri besra 64 boys will learn religious and carious cultural matters, traditional minangkabau’s self-defence (which is called as pencak silat) and establishing friendship and network either horizontal network (with friends in their ages) or vertical network (with people who is older or younger than them). the boys are mentored by the local islam’s leader (alim ulama) during their stay in surau. in this period, there is no signs of entrepreneurship learning was given by the ulama. the main objective in this very initial stage is only to prepare mentality and personality in order to equip the youngs with the foundation of their religion (islam) and how to behave in their social environment. as they are becoming the teenagers, they are then encouraged to leave their homeland to learn practical things from their experience out of their homeland. this can be done temporarily for a certain period (for example, during the vacation or study periods) or permanently (moving out from the homeland completely). some of them are studying in other provinces but most of them are actively entering into business activities, mostly as informal traders. during this process, the teenagers are prepared with experiences and practical knowledges (such as business process, business partners, suppliers, competitors, establishing network etc), so that when they are adults, they could return home wise and useful for the society. they are also hoped to contribute their thinking and experience to carry-out every matter related to the interests of their big family or nagari (homeland). merantau has successfully produced many minangkabau entrepreneurs who have important positions in indonesian business activities and communities. according to naim, the reasons of the minangkabau tribe for doing merantauare: (1) ecology and geography, (2) economy, and (3) education.40 in the reason of ecology and geography, the minangkabau tribe realized that their homeland is located far away from the centre and axis of indonesian trade and politics (in the west coast of sumatra – heading to indian ocean).41 to be personally developed, they are required to go and struggle outside of their homeland. the reason of economy is related to the huge opportunities of gaining wealth in other locations rather than in their homeland. meanwhile in the educational reason, the young generation of the minangkabau tribe believes that they will get a much better education outside of their homeland. those reasons and the process of merantau itself have created some specific characteristics and have become the cultural values of the minangkabau tribe.42 initially, the minangkabau nascent entrepreneurs are getting in touch in business activities with the help and assistance of mentors (who are also the minangkabau people and successful entrepreneurs) by providing temporary employment opportunities in their businesses. the businesses varies but mostly trading (textiles, gold and silver handicrafts, antiques goods), printing services, private educational services, tourism services and culinary. learning processes are then enacted within this stage. apart from learning entrepreneurial and business process, there is a possibility for the 40 muchtar naim, op.cit, 61-66. 41 ibid, 65. 42 usman pelly. urbanisasi dan adaptasi; peranan misi budaya minangkabau dan mandailing (jakarta: lp3es, 1994), 19. udayana journal of law and culture vol. 3 no. 1, january 2019 65 young minangkabaus to appoint a certain entrepreneurial role model as their pattern for doing business. in the concept of involving entrepreneurial role model in entrepreneurship education (formal and informal), there should be a transmission of charisma and reputation from entrepreneurs to the young potential entrepreneurs that can motivate them to start a business and become an entrepreneur and further, with a possibility to appoint their own entrepreneurial role model.43 this transmission can be undertaken through a close and frequent relationship and interaction between entrepreneurs and the young potential entrepreneurs. learning process that is found in merantau presumably can support the appointment of entrepreneurial role model for the youngs – because the young are living together with the entrepreneurs (which let both of them to interact and relate frequently). shortly after the young are ready and can settle-up themselves, they can start their own businesses using their savings and sometimes, with a small loan from relatives and friends, wither in their homeland or in the place where they live. the young are starting to live by themselves and to arrange their own first business and life freely. in the philosophy and principle of minangkabau entrepreneurs, one successful minangkabau entrepreneur should be able to become a mentor for at least three young minangkabau entrepreneurs. 44 this philosophy and principle are successfully implemented and as a result, there is a multiply effect of the creation of minangkabauentrepreneurs nationwide. in west sumatra province itself, entrepreneurs normally establish their business in form of micro, small and medium scale enterprises/msmes. in fact, business sectors in west sumatra are dominated by the presence of micro and small enterprises. based on the data from the west sumatra provincial development planning board/bappeda (2017), in 2016 number of micro and small enterprises in west sumatra reached 497,690 business units, while the medium and large scale business were only 3,720 business units. we can see here that the number of medium and large business is only 0.742% of all business units in west sumatra. 45 the fact has clearly indicated the important roles of micro and small enterprises for west sumatran economic development and it also indicates that business sector in west sumatra is dominated by local micro to small entrepreneurs, traders, peasant and other type of local 43see hafiz rahman and john day, “who is your role model? the relationship between role models and students entrepreneurial motivation.” paper presented at international council for small business (icsb) 2012 world conference, massey university, wellington, new zealand. 12. see also hafiz rahman. “the influence of entrepreneurial role models on entrepreneurial motivation (a study of indonesian undergraduate students at the faculty of economics of andalas university in padang – indonesia).” (dissertation, the business school university of huddersfield, 2013), 105. 44 see elfindri, desri ayunda and wiko saputra. op.cit., 24, see also primajati candra hastuti, armanu thoyib, eka afnan troena, andmargono setiawan, “the minang entrepreneur characteristic.” procedia social and behavioral sciences 211 (2015): 823 45 the west sumatra provincial government planning board. “data pembangunan provinsi sumatera barat, elemen: ukm.” http://sdp2d.sumbarprov.go.id/data_profil/html2print/107/0/2/2012-2016” psycho-cultural perspective on the formation of entrepreneurial culture of minangkabau tribe in west sumatra indonesia hafiz rahman, sri oktavia, and eri besra 66 business. the massive number and percentage of micro and small business owned by the local people could indicate an important phenomenon that people in west sumatra relatively have a conducive and supportive entrepreneurial culture that allows the propensity for entrepreneurship among its people. 2. result and discussion this section discusses results and findings of this study, which mainly relate to the comparison between cultural dimension of indonesian people and minangkabau people and the formation of entrepreneurial culture within minangkabau people. we begin our discussion with highlighting the cultural dimensions for indonesian in section 2.1. then, we take up the discussion for minangkabau and followed by the exposition of the model on the formation of entrepreneurial culture within the minangkabau tribe in section 2.2. 2.1. the cultural dimension of indonesia and logical consequences to entrepreneurship following hofstede who first introduced the index of cultural dimension among countries in the world including indonesia, we can summarize that indonesian people is recognized as a collectivist society, have higher power distance and lower uncertainty avoidance as well as more feminine.46 this is similar to mangundjaya who has also found that the indonesian people are regarded as a society which have value of the group more than individual value, is placing high importance on seniority rather than performance, is preferring stable conditions and situations rather than the challenging one, is having a clear cut between roles of the gender that sometimes actually overlaps and tends to have a short term orientation in life.47 the cultural dimension of indonesian people is further shown in the following table 1. table 1 cultural dimension (ci) and value (cv) of indonesian people no values and continuums ci and cv of indonesian people hofstede mangundjaya 1 individualism and collectivism collectivist value of the group 2 uncertainty avoidance high stable condition 3 power distance high the importance of seniority 4 masculinity and femininity feminine clear cut between gender roles 5 short term orientation and long term orientation short term short term source: hofstede (1980 and 2018) and mangundjaya (2010) 46 gert hofstede (1980), op.cit.,12 and gert hofstede (2018).“national culture of indonesia.” http://geert-hofstede.com/indonesia.html. 47wustari l.h mangundjaya, “is there cultural change in the national culture of indonesia?” paper presented at international conference on association of cross cultural psychology (iaccp), melbourne, australia, (2001):4. http://geert-hofstede.com/indonesia.html udayana journal of law and culture vol. 3 no. 1, january 2019 67 referring to the concept of cultural dimensions by hofstede (1980) and if we try to make a link between the exposition of culture and entrepreneurship, we can discover some following logical consequences of culture on entrepreneurship that apply to indonesian people, which is exposed as follows. 1. indonesia has relatively higher index in pdi and even higher rather than the average pdi of asian countries. indonesian index which is found by hofstede (1980) and (2018) is 78 whilst other asian is only 71. this index means one thing indonesia experiences a big inequality of power and wealth. as mentioned by hofstede, (1980) and (2018) the bigger the index of pdi of a society will usually create the lower possibility for the creation of an appropriatesupportive environment for new ventures. hayton, george and zahra also mentioned the relative similar thing.48 they stressed that the low power distance is usually an important element for an appropriate environment for the propensity of entrepreneurship for members of the society. 2. the next cultural indicator that relates to entrepreneurship is the continuum of individualism. as mentioned by hayton, george and zahra, individualist societies such as the western societies tend to experience a more conducive environment for the propensity ofentrepreneurshipcompared with the collectivist society such as the eastern people.49in the conjunction with this argument, morris samit straightforwardly stressed that a society with a more individualist culturetend to be more entrepreneurial rather than those which are more collectivist.50 entrepreneurship is viewed as a way where they can achieve personal success. uniquely, members of the individualist society tend to not to appeal to their own group norms and personal ties, but rather convincing other members in their society about the validity of their vision. indonesia however, has a very low idv index (14).51 in fact, it becomes one of the most collectivist countries in the world. using shane, et al., hayton, george and zahra, and morris samit, as the basis of our analysis, we consider this condition as anunsuitable circumstance to entrepreneurship. as our understanding, the indonesian people tend to give more respect to the collectivist cultures which are normally hinder and detriment the entrepreneurship, rather than individualist cultures which in fact in various countries and societies, is a supporting condition for the propensity of entrepreneurship within members of the society. 48 james c. hayton, gerard george and shaker a. zahra, op.cit., 33-52. 49 ibid, 33-52 50 morris samit, op.cit., 21-34 51 gert hofstede, (2018). “national culture of indonesia.” http://geerthofstede.com/indonesia.html. http://geert-hofstede.com/indonesia.html http://geert-hofstede.com/indonesia.html psycho-cultural perspective on the formation of entrepreneurial culture of minangkabau tribe in west sumatra indonesia hafiz rahman, sri oktavia, and eri besra 68 3. another element in cultural dimension of a society that can be related to entrepreneurship is uncertainty avoidance. wenneker et al, 52 , noorderhaven et al., 53 and noorderhaven and harzing basically have pointed out that entrepreneurial individuals will try to find their way out from an organization once they feel and find that working in an organization can lower their uncertainty avoidance. 54 in case of indonesia, the uncertainty avoidance index scores 48, which means that indonesian people has high degree to avoid the uncertainty – and to avoid this uncertainty, people usually create stricter rules and regulations, which will at the end, impact a difficult condition for entrepreneurship. in the context of minangkabau people, adat law/the law of the tradition has long become a part of main rules and regulations to solve conflicts and disputes among members of the tribe 4. as hofstede (2018), the masculinity index of indonesian people scores 48 – which implies that indonesian people hasslightly feminine culture rather than the masculine one. as the consequence, indonesian people are usually more modest and care to each other, but less assertive. this given condition can be said as one factor that can hinder and detriment the propensity for entrepreneurship in indonesia. if we look and summarize all the indexes of indonesian cultural dimensions, there is an important implication related to entrepreneurship. as indonesia has the high power distance, very low individualism, high uncertainty avoidance and low masculinity, the situation of these cultural dimensions would be, of course, a condition that can hinder and detriment the development of entrepreneurship and the propensity for entrepreneurship within indonesian people. it is clearly signed that the indonesian society is actually categorized as the society which would not let the development of conducive climate for entrepreneurship. an important conclusion from hofstede’s cultural dimension that is related to indonesian culture is as the following: 1. there is high inequalities among indonesian people which is reflected by unequal distribution of power. 2. indonesian people tend and prefer to avoid and minimize uncertainty by creating more rules and regulations that are applied to the members of the societies. 3. indonesian people is a collectivist society. 4. indonesian people are living in a more feminine culture. summarizing results of analysis of the cultural dimension of indonesian people and relate them to entrepreneurship, we can simply say that indonesian culture and society are actually not entrepreneurial. indeed, 52sanders wennekers, lorraine m.uhlaner and roy thurik, “entrepreneurship and its conditions: a macro perspective.” international journal of entrepreneurship education 1, no. 1 (2002): 25-68 53 niels g. noorderhaven, carla i. koen, and sjoerd beugelsdijk, “organizational culture and network embeddedness.” tilburg university discussion paper 91 (2002): 1-52. 54niels g.noorderhaven and anne-wil k. harzing, “the country of origin effect in multinational corporations: sources, mechanisms and moderating conditions.” management international review 43, no. 2 (2003): 47-66. udayana journal of law and culture vol. 3 no. 1, january 2019 69 previous results of analysis from mangundjayaregarding the perceived value of indonesian people has also given that similar indication.55 if we compared with the indonesian people in general, as hofstede mentioned, indonesian people have culture of collectivist, higher power distance, lower uncertainty avoidance, tend to be more feminine and having short-term orientation for their life.56 similarly, mangundjaya (2010) found that the people of indonesia is regarded as having value of the group, placing high importance on seniority, preferring stable conditions and situations, having clear cut between gender roles that nevertheless do sometimes overlap and tend to has a short term orientation.57 as indonesian people consist of many tribes, in which the minangkabau people is one of them, facts show that cultural dimension of each tribe is different from one to the other and sometimes, is also different to the cultural dimension of indonesian people in general. mangundjaya describes the culture of minangkabau people as are characterized by its matriarchate culture, which means that women are the ones that play an important role in the family. males are usually living out of their hometown to earn a better living (by doing merantau) and usually act as an entrepreneur. the people never forget their family members as well as the key person in their culture – as they have an important role in their life. the minangkabau people perceive the environment as unstable and consequently, they want to adjust themselves to the environment and they are giving very much respect to the elderly and seniority. to conclude this, mangundjaya argued that the minangkabau people are characterized as; (1) a collectivist society, (2) have a higher power distance, (3) tend to be feminine, (4) have a lower uncertainty avoidance and (5) have a long term orientation. 58 comparing the culture dimension of indonesian people to the minangkabau people as mentioned by hofstede (1980) and (2018) as well as mangundjaya), the results can be seen in the following table below. table 2 comparison of perceived values of indonesian people minangkabau people no values indonesian people* minangkabau people** 1 individualism and collectivism collectivist collectivist 2 uncertainty avoidance high low 3 power distance high high 4 masculinity and femininity feminine feminine 5 short-term and long-term orientation short term long term *) hofstede (1980 and 2018) **) mangundjaya (2010) 45 wustari l.h mangundjaya, op.cit.,2. 56gert hofstede (1980), op.cit.,12 and gert hofstede (2018). “national culture of indonesia.” http://geert-hofstede.com/indonesia.html. 57wustari l.h mangundjaya, op.cit.2. 48ibid, 62. http://geert-hofstede.com/indonesia.html psycho-cultural perspective on the formation of entrepreneurial culture of minangkabau tribe in west sumatra indonesia hafiz rahman, sri oktavia, and eri besra 70 comparing values of minangkabau people and indonesian people, we can see a slight difference in regards of uncertainty avoidance and long-term orientation.49 as the indonesian peopleare having high uncertainty avoidance and short-term orientation, the minangkabau people show low uncertainty avoidance and long-term orientation. using this fact as the basis and relate it to entrepreneurship, bjerke and hultman argued that in a society where collectivist culture exists, entrepreneurship may start from an individual initiative but must have the support of the group to succeed.59they further argued that entrepreneurship will be more innovative and the process to become an entrepreneur will be generally more direct, faster and less complicated if a society has a relatively lower uncertainty avoidance in their culture.50a perfect example from bjerke and hultman’s argument is the minangkabau people – where entrepreneurship becomes a common choice of living for the people. the long-term life orientation which was traditionally raised in the culture of minangkabau people also contributes to the creation of the culture of entrepreneurship among the minangkabau people. most entrepreneurship is a long term commitment – and individuals who want to become an entrepreneur should be aware of this kind of commitment.50 both indonesian and minangkabau people are found as having high power distance as part of their cultural dimension. bjerke and hultman used their own terminology to describe the power distance of a society, which is difference to hofstede (1980). they prefer to use the terms ‘long’power distance instead of high power distance and the term ‘short’power distance as the replacement of the term low power distance however, both the terminologies are considered to have the same meaning. as previously found by hofstede (1980 and further 2018) and mangunjaya, indonesian people and minangkabau people tend to have high or long power distance. if we relate this finding to bjerke and hultman, it is argued that in this type of culture, initiatives for the most activities come normally from the top and control of all aspects of a new venture effort by the entrepreneurs could be very detailed and frequent.50 this further means that there will be a deprivation of ideas which come from people who are having lower status in the social system. as the result, people tend to be more silence, apathetic and rely on orders given by people who are having higher social status. this situation will further bring negative impact to entrepreneurial and creative people – as their idea for new ventures will often be deprived. 2.2. the model on the formation of entrepreneurial culture within the minangkabau tribe to follow-up the discussion regarding entrepreneurial culture of minangkabau people, we model the interrelationship between perceived value, cultural dimension, kinship system and the process of merantauin forming entrepreneurial culture of minangkabau people. this can be seenin the following figure 1. 59 bjorn bjerke and claes hultman. entrepreneurial marketing: the growth of small firms in the new economic era (cheltenham, uk: edward elgar, 2002),117. udayana journal of law and culture vol. 3 no. 1, january 2019 71 figure 1. model of how cultural dimension, perceived value and kinship system are forming entrepreneurial culture of the minangkabau tribe cultural dimension 1. collective society 2. low uncertainty avoidance 3. high power distance 4. feminine society 5. long-term orientation perceived value 1. value of the group 2. can tolerate unstable condition 3. importance of seniority 4. clear cut between gender roles 5. long-term future objectives kinship system matrilineal system informal cultural based entrepreneurial learning m e r a n t a u entrepreneurial culture source: conception of the authors in this model, we argue that the interrelated relationship between cultural dimension, perceived value and kinship system of the minangkabau tribe contribute directly and indirectly to the formation and the performance of entrepreneurial culture of the minangkabau tribe. the direct relationship can be seen by the influence of cultural dimension, perceived value and kinship system of this tribe to the formation of entrepreneurial culture. meanwhile, the indirect relationshipis moderated by merantau as the informal, cultural-based entrepreneurial learning within this tribe. the cultural dimension of the minangkabau tribe can be seen in its characteristics as a collective society which has low uncertainty avoidance, high power distance and having long-term orientation.the minangkabau tribe is also characterised as a feminine society. perceived value of the minangkabau tribe is characterised on their appreciation to the value of the groups (such as core family, big family, suku, to the groups of people who are coming from the same place of origin etc.), their ability to tolerate the unstable condition which arises from the unstable environment in the homeland, their highly respect on the seniority which forms the principle of respect to the elders and their long-term future objectives that is located within the future of their familiy and their society. the minangkabau tribe, as the other indonesian people, also recognizes as having a clear cut psycho-cultural perspective on the formation of entrepreneurial culture of minangkabau tribe in west sumatra indonesia hafiz rahman, sri oktavia, and eri besra 72 between gender roles. in their kinship system, the minangkabau tribe uses matrilineal system, in which females are being positioned in a very important position. their matrilineal system has made females, especially elderly females, consider, decide and control every strategic and necessary decision regarding their tribe. this kinship system has resulted a balance between the roles of males and females in the minangkabau social system. while females control necessary and strategic decision regarding the tribe (such as legacies, ceremonies etc.), the males normally take full control for their future living as well as their families’ (such as how to make money for their living etc.) all of these (cultural dimension, perceived value and kinship system) have brought significant positive impact to the formation of an informalcultural based entrepreneurial learning within the minangkabau tribe. this is shown in their ability to do the merantau (emigrate) – leaving their homeland to live in the other part of the country or abroad. as they are having a slight different cultural dimension and perceived values to indonesian pepole in general (in terms of long-term orientation and their ability to tolerate the unstable condition in their life), the minangkabau tribe are mostly found of doing entrepreneurial activities for their living during the merantau. the process of merantau creates further chance for the young minangkabau males to have their own entrepreneurial role model. during merantau, the young minangkabau males are normally mentored by the successful minangkabau entrepreneurs, the circumstance has created a possible transmission of the role model’s role and influence to the young minangkabaus.as rahman and dayargue, 60 there is an open possibility toincorporate the participation entrepreneurial role model in entrepreneurship education (mostly learning) either formal or informal – and the process of merantau as an informal cultural based entrepreneurial learning can be used as an example of an entrepreneurial informal learning process where we can find posibilities of the transmission of roles and the influence of entrepreneurial role models to the young minangkabaus. 3. conclusion we do agree and further believe that analysing and considering culture of a society (and people) is a very tough and difficult task to undertake, in particular if it should be related to entrepreneurship. if we consider facts and analysis of indonesian cultural dimension and perceived values, then there is clearly a question arises: is the hindering and detrimental societies could produce the supportive environment for the propensity of entrepreneurship? if the answer is yes, then what should be the logical explanation to it? the question arose from the logic and literature arguments that there should be a positive interrelated relationship between culture and the propensity for entrepreneurship in a society. the cultural aspects are believed, should create supportive climate for entrepreneurship performance of a country. we argue that if the culture of a society indicates 60 hafiz rahman and john day, “involving the entrepreneurial role model: a possible development for entrepreneurship education.” journal of entrepreneurship education17, no 2 (2014): 163-171. udayana journal of law and culture vol. 3 no. 1, january 2019 73 positive and supportive aspects in its cultural dimensions and perceived values of its people, then it will foster the propensity for entrepreneurship among members of the society and as the result, the society or the country will be more entrepreneurial and the development and performance of entrepreneurship will be more guaranteed. this paper also shows the evidence that culture and perceived value also play an important role to create and maintain entrepreneurial habits and experience of a certain society. in this paper, this is shown by the minangkabau tribe in west sumatra as one of sub-culture in indonesian cultures. cultural dimension of a society, perceived value and kinship system of this tribe contribute direct or indirect impact and influence to the creation of very supportive and conducive entrepreneurial culture. the indirect impact of those determinants (cultural dimension, perceived values and kinship system) to entrepreneurial culture are shown by the positive presence of an informal-cultural based entrepreneurial learning that occurs within the minangkabau people. this is in the form of merantau, which also supports the creation ofa very conducive and supportive entrepreneurial culture experienced by the minangkabau people at large. compared to the cultural dimension and perceived value of indonesian people in general, the minangkabau tribe is relatively different in terms of uncertainty avoidance and orientation for its future life. the minangkabau tribe is considered as being more tolerant to the uncertainty in their life and future and have a long-term orientation in their future life. having these as their nature and the existence of an informal cultural based entrepreneurial learning, the minangkabau tribe is considered to be more entrepreneurial rather than other tribes or ethnic groups in indonesia. the peculiarity minangkabau tribe compares to other tribes in indonesia can also be found in the minangkabau’s kinship system which is a matrilineal system that puts females in a very important position in their cultural and social systems. this study analyses one single cultural background as the context of study which is sourced from a particular tribe in indonesia and compared it with the analysis of indonesian culture and values. as this study was undertaken to a single cultural context (west sumatra culture), it will be worth to extend this study and investigation into various cultural dimension, perceived value and kinship system from ethnic groups/tribes in indonesia or other countries. comparatively, this will add our understanding, knowledge and perspectives regarding the formation of entrepreneurial culture as a result of the combination between cultural dimension, perceived values and kinship system of a society/community/ethnic group. psycho-cultural perspective on the formation of entrepreneurial culture of minangkabau tribe in west sumatra indonesia hafiz rahman, sri oktavia, and eri besra 74 bibliography book aldrich, howard e. and martha angelia. martinez, many are called, but few are chosen: an evolutionary perspective for the study of entrepreneurship, chapel hill, nc: university of north carolina, 2001. bjerke, bjorn and hultman, claes. entrepreneurial marketing: the growth of small firms in the new economic era, cheltenham, uk: edward elgar, 2002. carter, 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2017 concerning description of the main duties and functions of the service of cooperatives, small and medium businesses, west sumatera province udayana journal of law and culture vol. 3 no. 1, january 2019 77 website content hofstede, gert “national culture of indonesia.” http://geerthofstede.com/indonesia.html the west sumatra provincial government planning board. “data pembangunan provinsi sumatera barat, elemen: ukm.” http://sdp2d.sumbarprov.go.id/data_profil/html2print/107/0/2/ 2012-2016 thesis or dissertation murad, auda. “merantau: aspects of outmigration of the minangkabau people, master thesis, department of demography, australian national university canberra, 1978. naim, muchtar, “merantau.” dissertation, department of sociology, universitas gadjah mada, 1984. rahman, hafiz. “the influence of the entrepreneurial role model on entrepreneurial motivation (a study of indonesian undergraduate students at the faculty of economics of andalas university in padang indonesia).” dissertation, the business school, huddersfield: university of huddersfield, 2013. http://geert-hofstede.com/indonesia.html http://geert-hofstede.com/indonesia.html http://sdp2d.sumbarprov.go.id/data_profil/html2print/107/0/2/2012-2016 http://sdp2d.sumbarprov.go.id/data_profil/html2print/107/0/2/2012-2016 hafiz rahman* department of management, faculty of economics universitas andalas, indonesia sri oktavia** faculty of law universitas andalas, indonesia eri besra*** department of management, faculty of economics universitas andalas, indonesia (1) abstract source: conception of the authors book chapter in an edited book journal article website content thesis or dissertation vol. 3, no. 1, january 2019, pp. 1-29 available at: https://ojs.unud.ac.id/index.php/ujlc/issue/view/3028 e-issn 2549-0680 1 chthonic legal traditions: a standpoint legal research paradigm for comparative analysis on australian indigenous legal orders maria salvatrice randazzo* charles darwin university school of law, australia article received: 14th december 2018; accepted: 29th january 2019; published: 31st january 2019 abstract in contemporary comparative legal scholarship, it is no longer controversial to assert the relevance of investigations into chthonic legal orders; however, there is a significant divergence on how they should be undertaken. the paper takes in consideration the australian chthonic legal orders and argues that their investigations by non-indigenous researchers need to be undertaken acknowledging an indigenous epistemological approach to research, with methodological frameworks that, consistent with the principles of an indigenous standpoint theory, aim to develop a legal standpoint research paradigm informed by indigenous legal ontologies, epistemic theories and research practices. the research paradigm so elaborated is justified by the necessity of devising new epistemological models to guide understandings—and theoretical elaboration—of australian indigenous orders which are consistent and coherent with their ontological, epistemological and axiological universe. keywords: chthonic law; indigenous legal tradition; comparative law; standpoint theory; research paradigm how to cite (chicago-16th): randazzo, maria salvatrice. "chthonic legal traditions: a standpoint legal research paradigm for comparative analysis on australian indigenous legal orders." udayana journal of law and culture 3, no. 1, 1-27. https://doi.org/10.24843/ujlc.2019.v03.i01.p01. doi: https://doi.org/10.24843/ujlc.2019.v03.i01.p01 ** email/corresponding author: mariasalvrandazzo@gmail.com https://ojs.unud.ac.id/index.php/ujlc/issue/view/3028 https://doi.org/10.24843/ujlc.2019.v03.i01.p01 mailto:mariasalvrandazzo@gmail.com chthonic legal traditions: a standpoint legal research paradigm for comparative analysis on australian indigenous legal orders maria salvatrice randazzo 2 1. introduction australian indigenous legal orders 1 belong to the chthonic legal tradition. the term chthonic has been used by goldsmith to describe people who live in or in close harmony with the earth. 2 glenn defines ‘legal tradition’ as transmitted information concerning what is a legal order and its law, where to acquire knowledge of them from, and the kind of approaches to use while seeking valid information about them.3 to define a legal tradition as chthonic means to attempt to define it from within, by criteria internal to itself, rather than relying on imposed criteria. 4 it is an endeavour to see it from a time prior to the emergence of colonial language. from a chthonic legal tradition perspective, it becomes clear that australian indigenous legal orders cannot be separated from life and compartmentalized in the manner in which the australian legal system can be separated from the political and religious dimensions of life.5 in light of that, any investigation on australian indigenous legal orders might be a difficult undertaking for a non-indigenous legal scholar, educated and trained in the parallel legal universe of the western civil law and the common law legal traditions. the main challenge consists of undoing the western legal research methodological framework grounded in positivism and elaborating new methodological frames to understand and research legal traditions which 1 ‘legal order’ refers to stateless and decentralised systems of governance whose law is embedded in social, political, economic and spiritual institutions. the expression is used to distinguish indigenous system of governance from a ‘legal system’, which, instead, refers to post-westphalian state-centred systems of governance whose law is adopted by government institutions and is implemented by legal professionals in legal institutions that are separate from other social and political institutions. in distinguishing between a ‘legal order’ and a ‘legal system’, the author hope to avoid imposing western legal concepts and institutions onto indigenous societies. 2 e goldsmith, the way: an ecological world view (london: rider, 1992), xvii. 3 h patrick glenn, legal traditions the world: sustainable diversity in law (oxford: oxford university press, 2004). 4 ibid. 5 it is beyond the scope of this paper to expound australian indigenous legal orders in terms of their sources, nature, scope and legitimacy. kelly’s doctoral dissertation provides an insight on the topic, with specific reference to the sources of madayin legal order of the yolngu people. see danial terence kelly, “law from the earth, law from the demos and law from heaven: nature and intersection of authority in madayin, australian law and christianity in arnhem land.” (phd thesis, charles darwin university, 2014). an extensive literature exists on north american chthonic legal orders: see especially, john borrows, canada’s indigenous constitutions (toronto: university of toronto press, 2010); sydney l harring. crow dog’s case: american indian sovereignty, tribal law, and united states law in the nineteenth century (cambridge: cambridge university press, 1994); further, on the new zealand māori’s chthonic legal order, see carwyn jones seminal article, “a maori constitutional tradition.” new zealand journal of public and international law 16, no.2 (2014):187-204. udayana journal of law and culture vol. 3 no. 1, january 2019 3 are learnt, transmitted and implemented orally. it requires acknowledgment at the outset that the researcher is observing and examining unlike normative/legal universes and applications of law, unlike conceptual underpinnings, philosophies, intellectual standards and ethical/legal understandings. in the lack of such acknowledgment, early research on and about indigenous societies by non-indigenous researchers,6 have been often undertaken without proper considerations of the lifeworld 7 into which indigenous societies are embedded.8 it has been only in the last two decades of the twentieth century with the beginning of the twenty-first century that researches on indigenous societies, including also investigations into their systems of authority, are conceptually reconceived as frontiers, where frontiers have been conceptualised both as physical and spatial boundaries, and as the interaction of distinct worldviews’ and diverse ontological, epistemological and axiological horizons. 9 this paper rides on the flows of the nascent twenty-first century legal literature starting to explore indigenous legal traditions from a theoretical perspective which is grounded into indigenous normative and legal ontologies. 10 in particular, with reference to the australian chthonic legal orders, the paper argues that their investigations by non-indigenous researchers need to be undertaken acknowledging an indigenous epistemological approach to research, with methodological frameworks that, consistent with the principles of an indigenous standpoint theory, aim to develop approaches to research and knowledge production based upon indigenous worldviews. 6 see linda tuhiwai smith, decolonizing methodologies: research and indigenous peoples (new zealand: zed books, 2nd ed, 2012); lester-irabinna rigney, “internalization of an indigenous anticolonialist cultural critique of research methodologies: a guide to indigenist research methodology and its principles.” journal of native american studies 14, no.12 (1999): 109; karen martin, please knock before you enter: aboriginal regulation of outsiders and the implications for researchers (country flaxton: post pressed, 2008). 7mill’s defines ‘lifeworld’ as the set of ontological, epistemological, axiological and cosmological understandings that situate indigenous community in creation’. aaron mills, “the lifeworlds of law: on understanding indigenous legal orders today.” mcgill law journal 54, no.4 (2009): 847850. 8 john henry and wendy brabham, aboriginal learning styles and the legacy of biological determinism in contemporary koorie education: the history of attempts to define and measure the intellectual capacities of aboriginal australians within western scientific tradition (melbourne: deakin university, institute of koorie education and faculty of education, 1994). 9 anne mead, working with aboriginal worldviews: tracks to two-way learning (western australia: west one service, 2012). 10 see especially, john borrows, recovering canada: the resurgence of indigenous law (toronto: university of toronto press, 2002); “living law on a living earth: aboriginal religion, law and the constitution.” in law and religious pluralism in canada, edited by richard moon (vancouver: university of british columbia press, 2008); canada’s indigenous constitution (toronto: university of toronto press, 2010); drawing out the law. a spirit’s guide (toronto: university of toronto press, 2012); valerie ruth napoleon, “ayook: gitksan legal order, law and legal theory” (phd thesis, university of victoria, 2009) chthonic legal traditions: a standpoint legal research paradigm for comparative analysis on australian indigenous legal orders maria salvatrice randazzo 4 as regards the methods through which relevant material for this paper has been selected, the research is archival and textually driven, while the paper is multidisciplinary and interdisciplinary at the same time: it is multidisciplinary as it draws on knowledge from different disciplines, such as comparative law, legal theory, anthropology, philosophy. it is also interdisciplinary as it analyses, synthesizes and harmonizes links between those disciples in order to create a new conceptual apparatus and methodological approach to investigate the complex normative and legal dimensions of australian indigenous legal orders, which could not occur if they were separately handled with an orthodox positivist conceptual apparatus and research paradigm. however, for the sake of locating this paper in the literature, it may be primarily positioned within the disciplinary field of legal science, specifically comparative law and legal theory. the paper is structured into three main sections. first, it provides a discussion on the scarcity of lack of any accurate contemporary work on a comparative methodology designed to analyse indigenous legal orders, and on the issue of insider-outsider indigenous research undertaken by a nonindigenous researcher. in doing so, the paper considers how a western european legal framework of analysis necessitates a constant reflective awareness regarding how western philosophical, normative and legal assumption might bias understanding of indigenous traditional constitutional orders of what is law and where law comes from. some of the issues addressed touch upon objectivity, subjectivity and political reflexivity. second, the paper considers how shortcomings in comparative law methodology regarding analysis of chthonic decentralised legal orders undertaken within a state-centred positivist research paradigm, necessitate the choice of a methodological approach to research informed by the key principles of indigenous standpoint theory. the theory is considered an epistemic theory and research practice and is drawn upon for elaborating a research paradigm embedded in the fundamentals of an indigenous worldview comprising ontology, epistemology and axiology. finally, the paper considers how such a standpoint research paradigm is most relevant to engage intimately with some of the most foundational aspects of indigenous legal cultures and normative universes. in so doing, the paper argues that such a paradigm can assist conceptualisations and theorisations of australian indigenous legal orders according to emic understandings of what a legal order is, where it comes from and what it is for. udayana journal of law and culture vol. 3 no. 1, january 2019 5 2. analysis 2.1. engaging with indigenous legal orders: reflexivity comparative scholars are mindful about the reflective nature of the comparative analysis, in that ‘any act of legal comparison primarily and initially’11 is conceptually, theoretically or practically biased—consciously or not—by the scholars’ knowledge of the modus essendi and operandi of their own legal system. in rouland’s words, ‘the observer is not impartial and the object of the observer’s gaze can be modified by his or her vision to undergo observation’.12 from a comparative legal perspective, as rouland observed, we bring our own legal culture with us in the process of considering and evaluating other legal systems.13 likewise, according to alford: the obligation to be vigilant does not preclude using the language and conceptual frameworks of our own society to try to understand and explicate for others the foreign societies we may be observing ... we ultimately must invoke ... our own]terminology and concepts to make intelligible to ourselves and our compatriots what we have observed .... nor should our concern with being scrupulous preclude us from forming judgments about foreign societies, for the very effort to understand entails the formation of judgments, large and small.14 however, when using the language and the western legal conceptual framework for inquiries into indigenous legal traditions, meyer points out that, ‘the risk is inherent: how does one discuss oranges with an apple vocabulary?’15 in other words, how is it feasible to investigate chthonic legal traditions in order to identify legal narrative to present specific indigenous legal data which are dynamic and fluid to a different legal audience? what does it mean and imply to be accurate in an analysis of australian indigenous legal traditions, as they are embedded in their own ontological, epistemological and axiological premises? the issue then, for a non-indigenous researcher becomes one of being committed to considering the philosophical perspectives of indigenous peoples in the process of engaging and investigating their legal traditions. as a result, to minimise the risk of imposing western european legal concepts and categories onto the indigenous legal traditions observed and considered, the need arises to be continually reflexive about the position in relation to the european ontological, epistemological and axiological assumptions at 11 norbert rouland, legal anthropology (p planel trans, london: athlone, 1994), 136 [trans of: anthropologie juridique, first published 1988]. 12 ibid. 13 ibid. 14 william p alford, “on the limits of ‘grand theory’ in comparative law,” washington law review 61(1986): 945, 947. 15 meleanna meyer, ho`oulu. our time of becoming (honolulu: native books, 1st ed, 2004), 76. chthonic legal traditions: a standpoint legal research paradigm for comparative analysis on australian indigenous legal orders maria salvatrice randazzo 6 the core of the current academic western legal world on what is law and where law comes from.16 the term reflexivity has been deployed by bourdieu who argues that social scientists are inherently biased, and they can only be freed of them by becoming reflexively aware of their biases. 17 bourdieu conceptualises reflexivity as a theory of intellectual practice that is foundational to theories of society and integral to social science methodology.18 within the above limitations, any endeavour to research australian traditional legal orders must be undertaken from a philosophical basis that focuses on both the internal study of law and external study about law. the internal study of law focuses on how law unfolds in context and legal arguments that are developed and deployed within specific legal traditions. the objects of an external study about law usually are historical and sociological narratives and interpretations of the very same body of law.19 twining suggests that legal scholars are more likely than social scientistic, such as anthropologists, to examine legal processes from an internal point of view. he also notes that ‘it is when working across cultures that the jurist’s tendency to develop an internal view of law is challenged by his or her conflicting ethnocentricity’.20 however, while a legal scholar might be aware of the internal processes and structures of other legal systems within a western legal tradition, for example, it is not necessarily the case indigenous traditional law is being investigated. nor does legal scholars’ skill to perceive the internal point of view of law mean they are able to perceive the foundational societal context into which western law or any other law are grounded.21 in light of the foregoing, maintaining a reflexive approach about our own cultural horizon becomes an essential requisite of any scholar’s ethics. sack argues that a ‘culturally neutral, universal language of law is not possible, and any such attempts will only serve professional convenience 16 johnny mack, ‘understanding academic critique as relational practice’ in thinking through relationship: the ethics of research and reflectivity (collected papers presented at the multidisciplinary student workshop of the indigenous peoples and governance conference, university of montreal, 8–9 october 2008): 25-26. 17 pierre bourdieu and loïc wacquant, an invitation to reflexive sociology (chicago: university of chicago press, 1992). 18 ibid. 19 jeremy webber, “the past and foreign countries” legal history 10 (2006):1-2; see also “relations of force and relations of justice: the emergence of normative community between colonists and aboriginal peoples,” osgoode hall law journal 33, no.4 (1995); 623; ‘legal pluralism and human agency,” osgoode hall law journal 44, no.1 (2006):167; “the grammar of customary law” mcgill law journal 54, no.4 (2009): 579. 20 william twining, “law and anthropology: a case study in inter-disciplinary collaboration” law & society review 7(1973): 561. 21 richard l abel and phillip s c lewis, lawyers in society: an overview (california: university of california press, 1995). https://www.google.com.au/search?tbo=p&tbm=bks&q=inauthor:%22pierre+bourdieu%22 https://www.google.com.au/search?tbo=p&tbm=bks&q=inauthor:%22lo%c3%afc+j.+d.+wacquant%22 udayana journal of law and culture vol. 3 no. 1, january 2019 7 rather than contributing to a better understanding of law’.22 sack’s line of thought is similar to the views expressed by smith,23 slim and thompson24 and moore,25 who, from the perspectives of their different disciplines, argue that all research is fundamentally and inherently political. however, as geertz posits, this does not mean that intellectual rigor can be discarded: i have never been impressed by the argument that, as complete objectivity is impossible in these matters (as of course it is), one might as well let one‘s sentiments run loose … that is like saying that as a perfectly aseptic environment is impossible, one might as well conduct surgery in a sewer. nor on the other hand, have i been impressed with claims that structural linguistics, computer engineering, or some other advanced form of thought is going to enable us to understand men without knowing them.26 according to tully, it is difficult to free ourselves from the ‘problematisations and practices in which we think and act’, 27 because our involvement makes our thinking, ‘rule following and rule contestation prereflective and habitual’.28 constant political reflexivity is applicable not only to the research process, but also to the larger world surrounding the research and the research subject itself.29 tully remarks that we are challenged to undertake the permanent task of making sure the multiplicity of practices of governance in which we act together do not become closed structures of domination under settled forms of justice, but remain open to practices of freedom by which those subject to them have a say and hand in.30 although any analysis onto australian chthonic legal traditions remains circumscribed by a non-indigenous researcher’s own limitations, both acknowledged and otherwise, the reflective approach minimises the risk of imposing cultural apparatus that would be are incommensurable with the indigenous worldviews that give meaning to the legal orders investigated. 2.2. methodological problem of comparative law the reflective approach implies a need to identify a theoretical approach to the methodology to draw upon to elaborate the methodological framework 22 peter sack, “law, language, culture: verbal acrobatics and social technology” journal of legal pluralism & unofficial law 41(1998): 15. 23 linda tuhiwai smith, loc.cit.. 24 hugo slim et.al, listening for a change: oral testimony and community development (philadelphia: new society publishers, 1995). 25 sally falk moore, ‘certainties undone: fifty turbulent years of legal anthropology 1949–1999,’ journal of the royal anthropological institute 7, no.1 (2001): 95. 26 clifford geertz, the interpretation of cultures (new york: basic books, 1973), 30. 27 james tully, ‘political philosophy as a critical activity,” political theory 30, no. 4 (2002): 533, 547. 28 ibid. 552 29 ibid. 30 ibid. chthonic legal traditions: a standpoint legal research paradigm for comparative analysis on australian indigenous legal orders maria salvatrice randazzo 8 within which the investigation into australian indigenous legal orders can be carried out. a discussion on the preferred theoretical approach to methodology necessarily includes reference to a wider definition of methodology. this means going beyond the conventional and practical aspects of data gathering, and referencing the world views of stakeholders in research endeavours. methodology is defined as: a system of methods and rules that facilitate the collection and analysis of data. it provides the starting point for choosing an approach made up of theories, ideas, concepts and definitions of the topic, therefore the basis of a critical activity consisting of making choices about the nature and the character of the social world.31 this definition emphasises that methodology in research refers to the ‘reasoning that informs particular ways of doing research, or the principles underlying the organisation of research’.32 regarding research into indigenous legal orders, recent ground-making comparative scholarship has pointed out the inadequacy of current comparative law methodology to cope with the increasing complexity of stateless legal orders in a legal intercultural world. specifically, given the scarcity of comparative research on australian indigenous constitutionalism, the main difficulty facing any inquiry into the topic is the lack of a clear explanation of a methodological framework and associated research paradigm to engage with the study and analysis of the subject. without such a framework, inquiries carried out by non-indigenous researchers into indigenous legal traditions might be compromised, even subconsciously, both at the level of the research process itself and data interpretation, by the european normative/legal assumptions at the core of current academic western legal ontology and epistemology on what constitutes law and where it can be found.33 the methodological problem is interrelated with the ontological and epistemological dimensions of comparative law. as these terms are not frequently used in legal studies, it is beneficial to provide a basic definition. ontology is concerned with the existence of things; the term is understood in its widest sense and thus, embraces beliefs, desires and the like. 34 31 chris hart, doing a literature review: releasing the social science research imagination (london: sage, 1998), 28. 32 gale miller and robert dingwall, context and method in qualitative research (london: sage, 1988), 2. 33 konrad zweigert and hein kötz, an introduction to comparative law (oxford: t weir trans, oxford university press, 3rd ed, 1998), 34. 34 jean-michael berthelot ‘programmes, paradigms, disciplines: pluralité et unitè des sciences sociales’ in épistemologie des sciences sociales, ed. jean-michael berthelot (paris: presses universitaires de france, 2001), 457, 550. udayana journal of law and culture vol. 3 no. 1, january 2019 9 epistemology is concerned with knowledge of things.35 so while ontology deals with what exists, epistemology deals with the basic question, how we acquire knowledge of what exists. 36 these ontological and epistemological dimensions become evident the moment two fundamental questions associated with comparing australian indigenous legal orders are posed: what kind of knowledge is needed for undertaking comparative researches? how and to what extent, that knowledge can be located? worded more directly, those dimensions emerge when the researcher is faced with the question of what comparing, and what should consider when doing so.37 according to legrand, both questions can only be answered from the socio-cultural context in which the law operates. 38 generally, understandings of legal systems or legal orders are hindered when they are analysed in isolation from their legal and non-legal, social context. legal scholars and lawyers educated in their legal system have largely acquired knowledge of legal contexts through their legal education, familiarity with the national, regional and local culture, and thorough their general education and socialisation in the relevant communities. subconsciously, this knowledge of shared values and worldviews plays a role in the way legal systems are understood, interpreted and handled. while this is a problem in terms of simply understanding the law of remote legal cultures, a more hidden problem lies in misunderstanding apparently identical or comparable rules that have, in practice and because of their context, a completely different scope.39 the thrust of the matter is the assumption that to have knowledge of legal systems is to have knowledge of legal rules. likewise, the debate in legal theory has focused on what constitutes valid sources of legal rules. however, this rule-thesis is epistemologically vulnerable, and recourse to a strictly internal rule-thesis of what constitutes law becomes problematic for comparatists. susskind argues that comparative law will never move beyond being an exercise in comparing rules until the rule-thesis, which has been the dominant model of what constitutes legal knowledge, is abandoned as the sum total of legal knowledge.40 the rule-model is questioned by legrand. he supports his argument by moving beyond the orthodoxy of positive law. positioning his argument in the scholarly tradition of ‘law as culture’, legrand’s definition of law 35 ibid. 36 see generally pierre legrand, le droit compare (paris: presses universitaires de france, 1985); épistemologie du droit (paris: presses universitaries de france, 1994). 37 ibid. 38 ibid. 39 konrad zweigert and hein kötz, op.cit. 40 richard e susskind, expert systems in law (oxford: oxford university press, 1987) 78–79. chthonic legal traditions: a standpoint legal research paradigm for comparative analysis on australian indigenous legal orders maria salvatrice randazzo 10 embraces the ‘deep structures of legal rationality’. 41 positive rules for legrand are merely superficial. any kind of comparative law that seeks to investigate culture and mentalite’ must, therefore, by its very nature, be interdisciplinary.42 while this alone might not imply a need to have recourse to epistemology and philosophy in the natural science, it suggests social science theory ought not to be ignored.43 in light of the foregoing, it emerges the necessity of identifying the relevant context for understandings of indigenous legal orders that are consistent with their chthonic legal culture. this leads to the question of what extent does the environing legal history, legal culture, the social and economic context need to be considered. the relevance of those contexts is rarely explicitly raised or discussed in domestic research. according to the topic, different contexts may have diverging relevance. occasionally, some more theoretical research, such as legal history and legal sociology, may be available, but an overall theoretical framework is lacking. there is the need to work out a theory of relevant context that allows comparative law to be carried out meaningfully, at the deeper level of the underlying lifeworlds of the legal orders investigated. deeper level comparison minimises the risk of cultural bias when analysing legal systems/orders distinct from our own. legrand argues that comparative law is, in essence, a hermeneutical exercise.44 the task of comparatists is not simply to compare rules, as these are nothing more than ‘strings of words’, the surface appearance of law. 45 the comparatists must reach below their surface to discover the cultural mentalite’ these rules express. in other words, it is not the rule itself that should be the focus of comparison but what the rule signifies in terms of the political, social, economic and ideological context from which it has emerged.46 berthelot explains that the hermeneutical scheme involves a vertical relationship between two elements, a and b, in which a is the signified (what it expresses) and b is the signifier (what it is).47 ‘deep structure of legal rationality’ means that beneath the surface rules (the signifier a) lies a set of deep structures that act as the signified b. 41 piere legrand, “european legal systems are not converging,” international and comparative law quarterly 45, no.1 (1996): 60–1. 42ibid. 43 john bell, french legal cultures (london: butterworks, 2001), 1–24. 44 pierre legrand, le droit compare, op.cit. 45 pierre legrand, “the impossibility of legal transplants,” maastricht journal of european and comparative law 4, no.2 (1997): 111. 46 ibid. 47 jean-michael berthelot, l’intelligence du social (paris: presses universitaries de france, 1996) 72. udayana journal of law and culture vol. 3 no. 1, january 2019 11 scheme 1 a b a= surface rules (the signified, what it expresses). b= deep structures beneath the surface rules (the signifier, what is). in other words, when it reaches the required depth, the deep vertical hermeneutical approach will encounter a set of structures that form a scheme of intelligibility—the structural scheme—in which properties and relations ‘become signs’, or elements, of a system operating as a code.48 it is in relation to these deep structures that epistemological work in the social science discipline has relevance for the law. recent sociological studies that reflect indigenous critical perspectives in research and do not approach the study of indigenous systems of governance from a purely descriptive, positivist point of view, can be the fundamental starting point for devising the relevant methodological contexts within which to carry out the deep level comparative research into indigenous legal orders.49 2.3. theoretical approach to methodology: indigenous standpoint theory 2.3.1 indigenous standpoint theory the relevant methodological context within which to carry out the deep level comparative investigation into australian legal orders is multidisciplinary and interdisciplinary in essence. as a result, the relevant methodological context positions itself between the discipline of legal and social science in that it has required a specific methodology able to combine the use of legal discourse and social science discourse. this methodology is the necessary outcome of the reflective premise discussed above and has 48 ibid, 70. 49 see especially dennis foley, “indigenous standpoint theory: an indigenous epistemology,” journal of australian indigenous issue 5, no.3 (2002):3; “a dichotomy: indigenous epistemological views,” journal of australian indigenous issues 6, no.3 (2003):13; “indigenous epistemology and indigenous standpoint theory,” social alternatives 22, no. 1(2003): 44, 52; “an examination of indigenous australian entrepreneurs,” social alternatives 8, no. 2 (2003): 133; see also mark van hoecke, epistemology and methodology of comparative law (oxford: hart, 2004), 73–77. https://www.researchgate.net/profile/dennis_foley/publication/292700295_an_examination_of_indigenous_australian_entrepreneurs/links/54739fe20cf245eb436db6ff/an-examination-of-indigenous-australian-entrepreneurs.pdf chthonic legal traditions: a standpoint legal research paradigm for comparative analysis on australian indigenous legal orders maria salvatrice randazzo 12 been developed by acknowledging an indigenous standpoint theoretical approach to research. 50 specifically, indigenous standpoint theory is a research methodology that is defined by indigenous worldviews, knowledge and core values and has been developed to address the need for an indigenous epistemological approach to indigenous research in australia.51 it is an australian centred approach to research methodology related to ‘being indigenous australian’ and is connected to indigenous australian philosophy and principles. it takes for granted the validity and legitimacy of the indigenous australian worldviews, knowledge and core values, and is concerned with the struggle for autonomy over their own cultural wellbeing.52 to fully understand the basic premises of the indigenous standpoint methodological framework it is helpful to briefly consider its connection to critical social theoretical approaches to methodology; particularly, critical theory and feminist standpoint theory. 53 critical theory and feminist standpoint theory are emancipatory and liberating epistemologies in their deconstruction process. they state that there is more than just one worldview and interpretation and have triggered the resurgence of indigenous theoretical standpoints. these emancipatory theories have been foundational for conceptual and philosophical re-elaboration of indigenous approaches to knowledge in a format and argument with which the nonindigenous scholar is familiar. 54 2.3.2 critical theory and feminist standpoint theory the critical theory focuses on self-reflection with the aim of freeing those being researched from the restrictions and repressive ideologies of the social order they live in.55 the theory’s fundamental goal is thus to ‘free individual groups and society from conditions of domination, powerlessness and oppression, which reduce the control over their own lives’. 56 critical theory, as a liberating epistemology to foster human emancipation through the reformation of the society, questions positivist scientific methods. yet, as 50 michael crotty, the foundations of social research: meaning and perspectives in the research process (london: sage publications, 3rd ed, 2003), 10. 51 dennis foley, ‘indigenous standpoint theory: an indigenous epistemology’, op.cit. 52 ibid. 53 ibid. 54 aileen moreton-robinson, talkin’ up to the white women: indigenous women and feminism (brisbane: university of queensland press, 2000); lester-irabinna rigney, “internationalisation of an indigenous anti-colonial cultural critique of research methodologies. a guide to indigenist research methodology and its principles,” journal of native american studies 14, no.2 (1999): 109; linda tuhiwai smith, op.cit. 55 brian fay, critical social science: liberation and its limits (new york: cornell university press, 1987). 56 lester-irabinna rigney, op.cit. https://www.google.com.au/search?tbo=p&tbm=bks&q=inauthor:%22lester+irabinna+rigney%22 udayana journal of law and culture vol. 3 no. 1, january 2019 13 rigney opines, critical theory maintains a racialised epistemological approach, as do all dominant theories, in its overtly political intentions.57 likewise, as the critical theory, the historical development of feminist standpoint theory has also evolved with a liberating agenda. the theory’s basic assumption is that certain socio-political positions occupied by women can become ‘sites of epistemic privilege’ and thus can trigger questionings about those who are socially and politically marginalized, and also those who, by means of social and political privilege, are described as oppressors.58 the feminist standpoint theory is the evolutionary base of indigenous standpoint. harding has espoused a concept of non-gender indigenous standpoint that both smith59 and moreton-robinson60 have developed. they have taken feminist standpoint to another level in relation to a standpoint within indigenous research. in decolonising methodologies,61 smith suggests that the question about connections between research, knowledge and power that form part of the feminist and marxist critique, also resonate with indigenous communities and their aspiration to selfdetermination. 62 particularly relevant to indigenous research are feminist critiques within the field of critical theory itself that challenge critical theorists to recognise their own marginalising practices. this requires researchers adopting reflective research practices and engaging in ‘a process of critical awareness, reflectivity and openness to change’.63 informed by critical social and emancipatory approaches to research, indigenous standpoint theory can thereby be understood as a critical theory that is situated within an australian indigenous specific context. paraphrasing smith, this theory can be conceptualised as a local theoretical perspective through which the emancipatory goal of critical theory, in a specific historical, political and social context, can be achieved.64 it draws on critiques of positivism and liberalism but is oriented by an indigenous australian worldview and connected directly to indigenous australian ontology, epistemology and axiology. 57 ibid; nancy weiss hanrahan, difference in time: a critical theory of culture (london: praeger, 2000). 58 sandra harding, feminism and methodology (bloomington: indiana university press, 1987); patrick fuery and nick mansfield, cultural studies and critical theory (oxford: oxford university press, 2000). 59 sandra harding, ibid.; dorothy e smith, writing the social: critique, theory, and investigations (toronto: university of toronto press, 1999). 60 aileen moreton-robinson, op.cit.; aileen moreton-robinson, “towards an australian indigenous women’s standpoint theory,” australian feminist studies 28, no.78 (2013):331-347. 61 linda tuhiwai smith, op.cit. 62 ibid, 69. 63 ibid, 71. 64 ibid, 74. https://catalogue.nla.gov.au/search/home?lookfor=author:%22hanrahan%2c%20nancy%20weiss%2c%201954-%22&iknowwhatimean=1 https://www.google.com.au/search?tbo=p&tbm=bks&q=inauthor:%22patrick+fuery%22 https://www.google.com.au/search?tbo=p&tbm=bks&q=inauthor:%22nick+mansfield%22 chthonic legal traditions: a standpoint legal research paradigm for comparative analysis on australian indigenous legal orders maria salvatrice randazzo 14 2.3.3 research paradigm in this paper, such an informed methodological framework is deployed to develop a standpoint research paradigm for engaging with the study and analysis of australian chthonic legal orders. the paradigm encompasses indigenous worldviews on what reality is, how knowledge of it is acquired, the values underlying indigenous research and is framed within indigenous worldviews and is informed by indigenous ontology, epistemology and axiology. it reflects wilson’s definition of paradigm as ‘a set of beliefs about the world and about gaining knowledge that goes together to guide people’s actions as to how they are going to go about doing their research’.65 the following sub-sections expound the essential elements forming such a standpoint research paradigm. 2.3.3.1. indigenous worldview garroutte advocates an approach to research into chthonic traditions that is rooted in indigenous peoples’ roots and principles. in light of garroute’s approach, which she conceptualises as ‘radical indigenism’, a necessary precondition to developing such a paradigm is a consideration of indigenous worldviews.66 worldviews have been described as mental lenses that are entrenched ways of perceiving the world.67 in essence, worldviews are cognitive, perceptual and affective maps that people continuously use to make sense of the social landscape and to find their way to achieve their goals. they are developed throughout a person’s lifetime by a process of socialisation and are encompassing and pervasive in nature. yet, they are usually subconsciously and uncritically taken for granted as being ‘the way things are’.68 in any society, there is a dominant worldview that is held by most members of a particular society, who do not take in consideration existing alternative worldviews. indigenous worldviews differ from the dominant western worldview. western worldviews stem from positivism, according to which the most reliable source of knowledge is information acquired and verified by logical, scientific, or mathematical methods. the knowledge that it is not so channelled is regarded with a great deal of suspicion and discarded as scientifically irrelevant. by contrast, indigenous worldviews are more subjective as it is grounded in metaphysical beliefs. as a result, their methods to acquire knowledge are less prescriptive, as they sustain the 65 sandra wilson, “what is indigenous research methodology?,” canadian journal of native education 24, no.1 (2001: 175; research is ceremony: indigenous research methods (halifax: fernwood publishing, 2008). 66 eva marie garroutte, real indians: identity and the survival of native america (berkeley: university of california press, 2003). 67 manulani aluli meyer, “indigenous and authentic: hawaiian epistemology and the triangulation of meaning,” in handbook of critical and indigenous methodologies, k normann et al, ed. (london: sage, 2008), 217–232; m e olsen, d g lodwick and r e dunlap, viewing the world ecologically (san francisco: westview press, 2002). 68 ibid. http://methods.sagepub.com/book/handbook-of-critical-and-indigenous-methodologies udayana journal of law and culture vol. 3 no. 1, january 2019 15 validity of many ways of learning about the world and our place within it. indigenous standpoint is thus committed to epistemological pluralism in the acknowledgement that there are diverse ‘versions of existence’, diverse ways of being in the natural world, and subsequently, diverse experiences to appreciate and respect.69 likewise, the system of knowledge stemming from the indigenous worldview is opposed, almost incommensurable, to a western worldview of reality and scientific system of knowledge. while western science is based on written academic traditions, traditional knowledge is transmitted orally by the elders from generation to generation. 70 further, western science isolates its objects of study from their living natural context and investigate them in simplified and controllable experimental environments, while traditional knowledge always depends on its context and particular local conditions.71 despite the differences in worldviews and need to address such differences, gill notes there is great conceptual anxiety when it comes to dealing with indigenous worldviews. he suggests that ‘it is frequently claimed by philosophers that indigenous peoples and other non-literate peoples do not really have a coherent view of the world because they have not yet conceived of the possibility and/or necessity of sequential and critical thought’. 72 thus, when dominant academic circles describe understandings of the world, they describe those understandings from eurocentric worldviews contexts and perspectives and discard indigenous perspectives and understandings as irrelevant. 73 indeed, eurocentric thought has come to mediate the entire world to the point at which worldviews that differ from eurocentric thought are relegated to the periphery, if they are acknowledged at all.74 however, there is a strand of western contemporary philosophical and anthropological thinking that strongly contexts the eurocentric perspective. feyerabend questions the widespread assumption that only western science holds the criteria to determine the truth. he points out that any form of 69 ibid. 70 jerry h gill, native american worldviews: an introduction (new york: humanity press, 2002). 71 ibid. 72 ibid, 18. 73 james y henderson, “challenges of respecting indigenous world views in eurocentric education,” in voice of the drum: indigenous education, ed. roger neil (manitoba: kingfisher, 2000), 76. 74 ibid 59; see also marie battiste and james y henderson, protecting indigenous knowledge and heritage (saskatoon: purich, 2000); james morris blaut, the colonizer’s model of the world: geographical diffusionism and eurocentric history (new york: guilford press, 1993); martin nakata, “but what does it mean?” journal of australian indigenous issues 15(1998): 1. chthonic legal traditions: a standpoint legal research paradigm for comparative analysis on australian indigenous legal orders maria salvatrice randazzo 16 knowledge only makes sense within its own cultural context. 75 likewise, british anthropologist bateson metaphorically compares knowledge about the material world to a map and the terrain the map describes: the map itself is not the terrain, but only one representation of it. 76 just as different maps can give accounts of the same territory, so too can different forms of knowledge about the material world. its actual representation ultimately depends on the observer’s view.77 2.3.3.2. indigenous ontology, epistemology and axiology grounded in indigenous worldviews, wilson suggests there are three essential components that make up a research paradigm: ‘ontology or a belief in the nature of reality. your way of being, what you believe is real in the world; epistemology, which is how you think about that reality; and axiology, which is a set of morals or a set of ethics’.78 table 1 represents the relationship between the three components: table 1: wilson’s research paradigm ontology epistemology axiology what is reality? how can reality be known? what are the values in research? a standpoint research paradigm includes wilson’s essential components. (a) indigenous ontology indigenous ontology is grounded in an holistic lifeworld view that interconnects the elements of the earth and the universe, animate and inanimate, whereby people, the plants and animals, landforms and celestial bodies are interrelated. it is defined by the interconnectedness and consequent interrelationship of three worlds: the physical, the human and the sacred.79 the interrelationship is illustrated in figure 1.80 75 paul feyerabend, against method: outline of an anarchistic theory of knowledge (london: verso, 1993). 76 gregory bateson, mind and nature: a necessary unity (toronto: clarke, irwin & company, 1979). 77 ibid. 78 sandra wilson, op.cit., 179. 79 errol george west, ‘speaking towards an aboriginal philosophy’ (paper presented at the indigenous philosophy conference, linga longa, 1998), 12. 80 figure adapted from dennis foley, ”indigenous epistemology and indigenous standpoint theory, social alternatives 22, no. 1(2003): 44, 46. https://www.goodreads.com/author/show/85302.paul_karl_feyerabend udayana journal of law and culture vol. 3 no. 1, january 2019 17 figure 1: indigenous ontology these three worlds are best explained by foley as follows: the physical world, which is the base, is the land that includes food, culture, and spirit and indigenous identity. 81 the physical world contains the land, the sky and all living organisms. the human world includes the knowledge of ancestral law, normative and legal relationship between people, family and rules of behaviour, ceremonies and their mechanism for change. 82 the sacred world is not located entirely in the metaphysical sphere; rather, it is grounded in the spiritual and physical wellbeing of all creatures, ancestral law and its maintenance and care of the country.83 indigenous ontology is defined by the interconnection of the physical, the human and the sacred worlds. creation narratives encode meanings on how this interconnectedness between the three worlds is foundational for the healthy maintenance of the natural, social and spiritual dimensions of existence. the narratives recount how ancestral beings created order out of chaos, form out of formlessness and life out of lifelessness, and as they did so they established the foundational law to maintain order and sustainability. 84 the law establishes relationships and responsibilities between people, for the country including water sources, landforms and the species, and for their ongoing relationship with the ancestor spirits themselves. indigenous ontology is based in connectedness to the time of creation, originating from eternity, the ancestral beings and the law. thus, the law is a moral/normative/legal code originating from eternity that the 81 ibid. 82 ibid. 83 ibid. 84 see vickie grieves, “aboriginal spirituality: aboriginal philosophy, the basis of aboriginal social and emotional wellbeing.” (discussion paper no. 9, cooperative research centre for aboriginal health, darwin, 2009). chthonic legal traditions: a standpoint legal research paradigm for comparative analysis on australian indigenous legal orders maria salvatrice randazzo 18 ancestral beings laid down, which governs the conduct of human life in itself and in its relationship with the spiritual and natural world. the awareness of indigenous worldviews and, in turn, ontological understandings of what exists—of reality—lead to an understanding that those worldviews and ontologies can be completely divergent from the western eurocentric views. further, the divergence between generalised mainstream indigenous worldviews and ontologies and generalised mainstream australian-european ontology is significant enough to provide a different foundation to a research paradigm designed in light of indigenous worldviews and values systems. (b) indigenous epistemology ‘indigenous epistemology’ explains how indigenous peoples come to know what they know. as a concept, it refers to an overarching indigenous theory of knowledge. within indigenous academia, epistemology has been defined as the distinct beliefs people hold about knowledge and how knowing is conceptualised. 85 thus, epistemology is a philosophy of what counts as knowledge, which, in turn, is dependent on what one believes to be ‘truth’ and ‘reality’.86 proceeding from the general to the particular, in australia, there are diverse australia indigenous epistemologies and all are located in their own community. each language group, each community has its own way of organising and applying knowledge. until a theoretical conceptual framework on a transregional indigenous epistemology based on commonalities of cultural knowledge is elaborated, developed and defined, it would be more appropriate to think and speak of indigenous epistemologies as location-specific, each with its own distinctive knowledge, wisdom and learning processes. with this caveat in mind, kovach has synthesised the thoughts of several indigenous authors who converged in identifying the following core of common defining characteristics of indigenous epistemology. (i) fluidity of knowledge indigenous epistemology is characterised by fluidity in knowing, consequential to the oral mode of transmission of knowledge from generation to generation by storytelling. it emerges from traditional languages emphasising verbs. according to martin, indigenous epistemology is a fluid way of knowing embodied in the body and, in this sense, part of the way of being and tied to ancestral patrimony, which is considered a 85 manulani aluli meyer, loc.cit; veronica arbon, arlathirnda ngurkarnda ityirnda: being-knowing doing: de-colonising indigenous tertiary education (teneriffe: post pressed, 2008). 86 fred dretske, ‘perception’ in robert audi (ed), the cambridge dictionary of philosophy (cambridge: cambridge university press, 2nd ed, 1999), 654–658. udayana journal of law and culture vol. 3 no. 1, january 2019 19 living expression of the never-ending interaction of the self in the world, and vice versa.87 (ii) web of connections indigenous epistemology arises from interconnections between the human world, the spirit, and inanimate entities. arbo, an arabana scholar, defines indigenous epistemology, as a ‘highly enriched’ set of knowledge and experiences, derived from the connection and relationship among the human world with the spiritual and natural world’.88 the natural domain local includes knowledge about soils, plants, climates and animals. the social domain includes knowledge about local organisation, local leadership and the management of natural resources, mutual help, conflict resolution, gender relations, art and language. the spiritual domain includes knowledge and belief about the invisible world, divine beings, spiritual forces and ancestors, and translates into values and related practices, such as rituals and ceremonies. none of these domains exists in isolation; rather, a notion of unity pervades them all. this notion of unity makes the natural, social and spiritual worlds inseparable and integrated. the epistemological framework so derived guides indigenous people in fulfilling their obligation in life within a relational world. knowledge and knowing is a never-ending intellectual process translated into ceremonies, everyday life and storytelling. notably, some of those stories capture sacred knowledge that can only be told by those who have a ceremonial responsibility to reveal them or obligation to tell them.89 (iii)ways of knowing indigenous epistemology is garnered through dreams and visions. as a way of knowing, indigenous epistemology is subjective, intuitive and introspective; it is shaped by values, beliefs, experiences, blood memories, intuition, family and the teachings and spiritual pathways pursued by indigenous people. derived from the interrelations between the human world, the spirit world and inanimate entities, it is embedded and guided by perceptual experiences and includes, as a major component, a form of experiential insight contextualised within a person’s inner space and connected with happenings. key people who can preside over phenomena of experiential insight are the elders and practitioners who have undergone processes to develop this ability. their findings are knowledge, and that 87 margaret kovach, “emerging from the margins: indigenous methodologies,” in research as resistance: critical, indigenous, & anti-oppressive approaches, ed. leslie brown and susan strega (toronto: canadian scholars’ press, 2005), 19–36. 88 veronica arbon, loc.cit. 89 marlene brant-castellano. “updating aboriginal traditions of knowledge” in indigenous knowledges in global contexts: multiple readings of our world, ed. george j sefa et.al, (toronto: university of toronto press, 2000), 21–36. chthonic legal traditions: a standpoint legal research paradigm for comparative analysis on australian indigenous legal orders maria salvatrice randazzo 20 knowledge is encoded in epistemological community social mores to preserve and transmit it to future generations. another aspect of indigenous epistemology is perceptual experiences. while a perception has been defined as ‘the extraction and use of information about one’s environment (exteroception) and one’s own body (interoception)’,90 it is considered more inclusively within indigenous epistemology to ‘include the metaphysics of inner space’.91 in other words, perception is understood to include a form of experiential insight. through inward exploration tapping into creative forces that run through all forms of life, individuals come to subjectively experience a sense of wholeness.92 this exploration is an experience in context, where the context is the self in connection with happenings, and the findings from such an experience are knowledge. happenings may be facilitated through rituals or ceremonies that incorporate dreaming, visioning, meditation, and prayer. the findings from such experiences are encoded in community praxis as a way of synthesising knowledge derived from introspection.93 hence, for indigenous people, epistemology would encompass the spiritual and natural world, in their dimension of relatedness with, and interconnectedness to the human world. according to martin, it would encompass the spiritual realm through practical applications of inner space discoveries. it would include a subjectively based process for knowledge acquisition/development, and a deeply personal ‘way of knowing’ expressed via traditional languages and knowable through dreams, visions, rituals, and ceremonies. the acquired knowledge would then be encoded in storytelling and transmitted as law from generation to generation through teachings.94 (c) indigenous axiology building on wilson’s outline of atkinson’s recognition of certain values, ethics, and principles shaping research paradigms guiding inquiries into indigenous realities, hart has identified a core of overarching values to be held and actions that reflect those values. what follows is a list of the main values relevant for a non-indigenous researcher and the manner in which they should inform studies involving empirical data generation, such as 90 fred dretske, op.cit., 654. 91 willie ermine, “aboriginal epistemology,” in first nations education in canada, ed. marie battiste and jean barman, (vancouver: ubc press, 1995), 101–112. 92 ibid. 93 ibid, 104. 94 karen martin (booran mirraboopa), “ways of knowing, being and doing: a theoretical framework and methods for indigenous and indigenist research,” journal of australian studies 27, no.76 (2003): 203. udayana journal of law and culture vol. 3 no. 1, january 2019 21 fieldwork, interview and focus groups, as well as studies that are theoretical and thereby archival and textually driven.95 (i) reciprocity and responsibility both values need to permeate empirical and theoretical research, and can be demonstrated in the ways researchers share the finding of their research with the interested community, whose society has been analysed with the intent of supporting a community. indigenous research must be for the benefit of the researchers’ community or the wider indigenous australian community. reciprocity and responsibility enable knowledge to be recorded for the community, not academia. the participants are the owners of the knowledge, not the researcher.96 (ii) respect and safety these values demand addressing confidentiality in a manner desired by the research participants. in theoretical studies, those values require the researchers be well versed in indigenous worldviews, ontologies and epistemologies to ensure research into indigenous societies are not carried out according to western axiological approaches to research. (iii)resistance resistance is the emancipatory imperative in indigenist research. both empirical and theoretical research must be undertaken as part of indigenous australia’s struggle for recognition and self-determination. this value stands in contrast with the depiction of indigenous peoples as oppressed victims in need of charity by challenging the power and control initial research has had on knowledge over the ‘other’.97 in consideration of the indigenous standpoint theory approach to research and the indigenous ontological, epistemological and axiological perspectives, the methodological model for investigations into indigenous legal orders is set out in figure 2. the model is simple and interactive in that it positions itself within, and inter-relates with, the indigenous legal culture and the normative universes which the australian chthonic legal orders inhabit. 95 michael anthony hart, ‘indigenous worldviews, knowledge, and research: the development of an indigenous research paradigm,’’ journal of indigenous voices in social science 1, no.1 (2010): 9-10. 96 michael anthony hart, seeking mino-pimatisiwin: an aboriginal approach to helping (halifax: fernwood publishing, 2002). 97 lester-irabinna rigney, loc.cit. https://www.google.com.au/search?tbo=p&tbm=bks&q=inauthor:%22lester+irabinna+rigney%22 chthonic legal traditions: a standpoint legal research paradigm for comparative analysis on australian indigenous legal orders maria salvatrice randazzo 22 figure 2: research paradigm 2.3.4. justification for standpoint methodological framework a standpoint methodological framework so elaborated is justified by the necessity of devising new epistemological models to guide understandings— and theoretical elaboration—of australian indigenous orders consistently and coherently with their ontological, epistemological and axiological ‘universe’.98 for several years a ‘legal’ ethnocentric approach to indigenous traditional legal orders and their law has dominated the research methodological framework. in the context of this paper, a ‘legal’ ethnocentric approach is meant the evaluation of chthonic, nonwestphalian legal systems according to preconceptions originating in the western doctrinal and jurisprudential framework of analysis, without mechanisms to differentiate the indigenous foundational normative principles and values or allowing consideration of any indigenous legal ontology, epistemology and axiology.99 research into indigenous societies in general, has traditionally benefited the researcher and the knowledge universe of the researcher’s academic community. when undertaking research either across cultures or within a minority culture, it is critical to recognise the power dynamics embedded in 98 ibid, 102. 99 martin nakata, “anthropological texts and indigenous standpoints,” australian aboriginal studies, australian institute of aboriginal and torres strait islander studies 4(1998):3; lester-irabinna rigney, loc.cit. . udayana journal of law and culture vol. 3 no. 1, january 2019 23 the relationship with the reality that is being investigated. researchers are repositories of privileged information that can be either interpreted within an overt theoretical framework, but also in terms of a covert ideological framework. they can ignore, overemphasise and draw conclusions on assumptions, subconscious value judgements and errors of perspectives rather than factual data. they have the privilege to expand the intellectual horizon or perpetuate ignorance. if the goal of academic inquiry is to develop, elaborate, deconstruct, reformulate or advance thinking, ideas, understanding and knowledge, then the choice of a standpoint methodological framework for investigations into australian chthonic legal orders is justified. certainly, such a methodological framework has no power to change the dynamics of power relationships, as indigenous peoples still experience subjection. however, it does forge a novel legal research perspective that will contribute towards changing the existing power imbalance of an influential strand of contemporary legal theory that reinforces the dominance of western positivist rhetoric in comparative law research. such a methodology, as applied in any inquiry undertaken by a nonindigenous researcher, rides the flows of pragmatism evident in the proposal for reframing legal research paradigms to engage with stateless legal orders suggested by an increasingly broad spectrum of non-indigenous academics. they share the commitment to move beyond the state-centred legal paradigm of what defines a legal system and law. it is a commitment that directs attention to the practice of law as it unfolds in socially and politically structured fields of engagement, so that conceptual and theoretical rationalisation of indigenous legal orders can be reframed and understood in explicitly normative, pragmatic terms. likewise, from a legal scholarship perspective, the methodological position that this paper is trying to develop is one that examines indigenous legal orders and their law as ‘signifying practices’ and ‘schemes of intelligibility’, where they ‘become signs’ of holistic systems of moral, political and legal authority operating as a binding code for living, commensurable in terms of legal theory. 3. conclusion given the lack of a clear articulation of a research paradigms and methodological models for investigating australian indigenous legal traditions, the aim of this paper has been to developing one. the paper has argued that in establishing specific guidelines in the preparation of the research methodology, priority must be given to indigenous approaches to research. specifically, the paper has shown that to undertake research into indigenous legal orders, there is a need to frame the inquiry within a research methodology informed by an indigenous standpoint with a research chthonic legal traditions: a standpoint legal research paradigm for comparative analysis on australian indigenous legal orders maria salvatrice randazzo 24 paradigm shaped and defined by indigenous worldviews, ontology, epistemology and axiology. the paper has considered how without such a methodological lens, potentially, the outcome of any research could end up straining the analysis of indigenous legal traditions for only those fragments that fit the dominating western legal perspectives, with a research outcome that, either consciously or subconsciously, reinforces certain strands of scholarly imperialism in the legal academia. the elaboration of such a methodological framework and research paradigm is consistent with a self-reflective approach to research. it assists the process of framing the analysis of australian chthonic legal orders within a research paradigm that is culturally sensitive to the emic understanding of what a legal order is and what is for. in doing so, it favours conceptualisation and theorisation in a way consistent with those understandings. the standpoint methodological framework might be one of the keys for opening the ‘global legal oecumene’ 100 of the contemporary world to indigenous australian legal orders as legitimate systems of governance on their own terms. acknowledgment author is a guest lecturer and a ph.d student at charles darwin university school of law, australia. the views expressed herein are those of the author and do not necessarily represent the views of the institution for which she is affiliated with. 100 ‘oecumene’ etymologically comes from the greek, οἰκουμένη, oikouménē, and literally means ‘inhabited’. it was an ancient greek term for the known world, the inhabited world, or the habitable world. see oxford english dictionary (oxford university press, 2nd ed, 1989). for the purpose of this thesis, ‘oecumene’ is used to refer to the normative/legal universe as a unified whole. https://en.wikipedia.org/wiki/greek_language udayana journal of law and culture vol. 3 no. 1, january 2019 25 bibliography book 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"the lifeworlds of law: on revitalizing indigenous legal orders today."mcgill law journal/revue de droit de mcgill 61, no. 4 (2016): 847-884. https://doi.org/10.7202/1038490ar moore, sally falk. “certainties undone: fifty turbulent years of legal anthropology 1949–1999.” journal of the royal anthropological institute 7, no.1 (2001): 95-116. moreton-robinson, aileen. “towards an australian indigenous women’s standpoint theory.” australian feminist studies 28, no.78 (2013): 331-347. https://doi.org/10.1080/08164649.2013.876664 nakata, martin nicholas. “but what does it mean?” noonjook journal of australian indigenous issues 15(1998): 5-15. nakata, martin. “anthropological texts and indigenous standpoints.” australian institute of aboriginal and torres strait islander studies 2 (1998): 3-12. rigney, lester irabinna. “internalization of an indigenous anticolonialist cultural critique of research methodologies: a guide to indigenist research methodology and its principles.” wicazo sa review: journal of native american studies 14, no.2 (1999):109-122. https://doi.org/10.2307/1409555 twining, william. “law and anthropology: a case study in inter-disciplinary collaboration.” law & society review 7, no. 4 (1973): 561-584. https://doi.org/10.2307/3052961 sack, peter. "law, language, culture: verbal acrobatics and social technology." the journal of legal pluralism and unofficial law 30, no. 41 (1998): 15-35. https://doi.org/10.1080/07329113.1998.10756504 tully, james. “political philosophy as a critical activity.” political theory 30, no. 4 (2002): 533-555. https://doi.org/10.1177/0090591702304005 webber, jeremy. “relations of force and relations of justice: the emergence of normative community between colonists and aboriginal peoples.” osgoode hall law journal 33, no.4 (1995): 623660. webber, jeremy. “legal pluralism and human agency.” osgoode hall law journal 44, no.1 (2006):167-198. webber, jeremy. “the past and foreign countries.” legal history 10 (2006):1-13. webber, jeremy. “the grammar of customary law.” mcgill law journal 54, no.4 (2009): 579-626. https://doi.org/10.7202/039646ar wilson, sandra “what is indigenous research methodology?” canadian journal of native education 25, no. 1(2001): 175-179. https://doi.org/10.1080/14443050309387838 https://doi.org/10.7202/1038490ar https://doi.org/10.1080/08164649.2013.876664 https://doi.org/10.2307/1409555 https://doi.org/10.2307/3052961 https://doi.org/10.1080/07329113.1998.10756504 https://doi.org/10.1177/0090591702304005 https://doi.org/10.7202/039646ar udayana journal of law and culture vol. 3 no. 1, january 2019 29 thesis or dissertation danial terence kelly. “law from the earth, law from the demos and law from heaven: nature and intersections of authority of madayin, australian law and christianity in arnhem land.” phd thesis, charles darwin university, 2014. napoleon, valerie ruth. “ayook: gitksan legal order, law and legal theory. phd thesis, university of victoria, 2009. other documents grieves, vickie. “aboriginal spirituality: aboriginal philosophy, the basis of aboriginal social and emotional wellbeing.” discussion paper no 9, cooperative research centre for aboriginal health, darwin, 2009. mack, johnny. “understanding academic critique as relational practice.” in thinking through relationship: the ethics of research and reflectivity, collected papers presented at the multidisciplinary student workshop of the indigenous peoples and governance conference, university of montreal, 8–9 october 2008. dictionary oxford english dictionary (oxford university press, 2nd ed, 1989). chthonic legal traditions: a standpoint legal research paradigm for comparative analysis on australian indigenous legal orders 2.2. methodological problem of comparative law 2.3.2 critical theory and feminist standpoint theory 2.3.3 research paradigm 2.3.3.1. indigenous worldview 2.3.3.2. indigenous ontology, epistemology and axiology (a) indigenous ontology (b) indigenous epistemology (i) fluidity of knowledge (ii) web of connections (iii) ways of knowing (c) indigenous axiology (i) reciprocity and responsibility (ii) respect and safety (iii) resistance 2.3.4. justification for standpoint methodological framework 3. conclusion bibliography book chapter in an edited book journal article thesis or dissertation other documents udayana journal of law and culture vol. 02 no.2, july 2018 165 corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra* surya intentilia education, bali, indonesia. renee sarah white** charles darwin university school of law, australia. kadek sarna*** faculty of law udayana university, bali, indonesia. abstract the concept of corporate social responsibility (csr) has been widely spread to developing countries. most scholars argue that the csr will give economic benefit to the local communities surrounding the company. indonesia and australia have adopted the concept of csr into some legislation and regulations. when the laws of csr were implemented in the field of tourism, some companies thought that they do not have any legal obligation to implement it. in practice, local communities have used csr to demand the tourism industries to provide any social, cultural and economic facilities. this article is aimed at providing an analysis regarding the legal framework of indonesian and australian laws and regulations concerning csr, particularly in tourism sector. in addition, it is intended to analyze how the implementation of csr in tourism may strengthen the local communities. it is a normative legal research that primarily scrutinizes written official law and regulations as well as relevant court decisions regarding the issue of csr, company, and tourism. it can be concluded that both indonesia and australia have regulated the concept of csr very well as stipulated in official law and regulations. regarding the implementation, by revolving within the scope of sustainable development concept as well as a gradual increase of tourism industries participation in csr, the well-being of the local community will surely be improved. keywords: corporate social responsibility; tourism industry; local communities; indonesia; australia. how to cite (chicago-16th): surya putra, anak agung bagus ngurah agung, renee sarah white, and kadek sarna. “corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia.” udayana journal of law and culture 2, no. 2 (2018): 165-190. https://doi.org/110.24843/ujlc.2018.v02.i02.p03. doi: https://doi.org/10.24843/ujlc.2018.v02.i02.p03 vol. 02, no.2, july 2018, 165 190 * e-mail/corresponding author: gunggussurya.surya7@gmail.com ** e-mail: renz_white@hotmail.com *** e-mail: kadek_sarna@unud.ac.id 166 1. introduction 1.1. background corporate social responsibility (csr) reflects a concept that stimulates companies to maintain and upgrade the condition of communities and the environment surrounding the companies with regard to social and environmental development as well as economic empowerment. the guidance standard on social responsibility, iso 260001 has conceived it as the responsibility held by organisations in regards to the impacts of decisions and activities on society and the environment. through transparent and ethical behaviour companies are expected to address four key issues; to take into account the expectations of stakeholders, implement sustainable development policies which include the health and welfare of society to act in compliance with any legislation and incorporate internationally expected behaviours, and to additionally integrate these policies throughout the entire company.2 according to the triple bottom lines (profit, people and planet),3 the existence of a company or corporation is not only to gain profit but also benefiting the surroundings.4 bearing in mind those components its connection to the sustainable development in the respective industries of tourism lies in the very core of the establishment of the industries it self. a lot of indonesian limited liability companies have actually indicated their efforts in maintaining the well-being of environment and social surrounding through csr as it is very well regulated in act of republic of indonesia no. 40 year 2007 concerning limited liability company and further affirmed in government regulation no. 47 of 2012 concerning social and environmental responsibility of limited liability company. in general, the implementation of csr in indonesia is not without obstacles. problems arise from various aspects, ranging from the understanding of such program, familiarising the company with such program,5 as well as many other problems that may or may not affect the country of which the company is running. the problem which affects the country thereof is reflected in the corruption case of 1 “iso 26000 guidance of social responsibility”, international organisation for standardisation, 2010. http://www.iso.org/iso/home/standards/iso26000.htm. 2 leeora d. black, what we do (29 april 2015) australian centre for corporate social responsibility <www.accsr.com.au>. 3 john elkington is generally known as the expert who coined the term of ‘triple bottom lines’ in 1994. see http://www.johnelkington.com/archive/tbl-elkington-chapter.pdf 4 see samuel o. idowa, abu bakar s. kasum and asli yuksel mermod, people, planet and profit: socio-economic perspectives of csr (ashgate publishing ltd, 2014). 5 in interview with marketing manager of puri dalem hotel, i wayan artayasa (the marketing manager) expressed his lack of understanding of the programme called corporate social responsibility, yet the hotel had consistently implemented such social programme in its vicinity. corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna udayana journal of law and culture vol. 02 no.2, july 2018 167 prosecutor v. edy yuwono et.al.6 the problem is a misuse of pt. antamcsr funds by yuwono, a rector of the university of jenderal soedirman. even though the problem did not persist in the allocation of csr funds or the understanding of how the allocated funds should be utilised, this problem should be noted as the hinderance of a smooth implementation of csr. it is worth to acknowledge that csr has approached the tourism sector. tourism is without questions a vastly growing industry sector in indonesia and australia. industries of tourism in indonesia have been established in many corners following the national tourism policy that addresses the willingness to create new 10 (ten) promising tourist destination.7 we may take bali province as an example. the massive development in tourism industries, as indicated by efforts to establish the tourism infrastructures and facilities, has brought great things to the tourism sector in bali. however, the growth of economic seems only benefiting the side of the industries with less consideration to support the existence of local communities. the implementation of csr in tourism industries has been inconsistent in bali since there is no clear ruling enforcing the industries to implement csr in the communities that own the village they established the facilities. in fact, a lot of tourism industries are established in the territory of adat village, the village which consists of local communities based on adat (customary) law and particularly on the philosophy of hindu in bali.8 even if there are ruling implicitly suggesting tourism industries implement csr for the wellbeing of local communities, there is no clear concept on how they should implement csr. instead of this situation, a progress has been made by tri hita karana (thk) foundation when in 2017 included a category for a tourism company that implement csr for an annual award.9 in australia, the issue of csr become an increasingly relevant topic since its introduction in the early 20th century.10 small to medium-sized enterprises (smes) have adopted some csr elements into their business activities without officially 6 decision of the supreme court of the republic of indonesia no. 148/pid.sus/2013/pn.tipikor. smg. https://putusan.mahkamahagung.go.id/putusan/downloadpdf/5cf008a7f4d29b48b0ae89025fcd3a 65/pdf 7 liputan 6.com, “ini dia 10 destinasi wisata yang disebut bali baru,” february 27, 2016, https://www.liputan6.com/lifestyle/read/2445931/ini-dia-10-destinasi-wisata-yang-disebut-bali-baru 8 i made suasthawa dharmayuda, desa adat kesatuan masyarakat hukum adat di propinsi bali (denpasar:upada sastra, 2001), 3. 9 see further description in section 2.1.1.5. 10 see rachael a. truscott, (2007) corporate social responsibility in australia: constructing reputation. in proceedings 2007 australia and new zealand marketing academy conference (anzmac), dunedin, new zealand: 2855. declaring that they issue a policy. for example, in the field of construction industry, most smes have implemented ethical and economic aspects of csr.11 the australian centre for corporate social responsibility (accsr) was formed over a decade ago to work with organisations be manage impacts and assist in performance reports.12 the accsr is not limited to the tourism industry, providing assistance to a wide variety of organisations. to define the concept of csr has externally sourced this information through the international organisation for standardization (iso). the accsr have chosen to use this international definition in an attempt to bring clarity to a concept that endures much debate in terms of the definition. these differences can be attributed to several issues; being are a reflection of national and cultural differences in the approach to business practices and differences in disciplinary actions and perspectives on the implementation of csr methods. additional to this is the differences in the motivation of organisations to become involved in csr. many companies have implemented csr in the opinion that it is a morally correct practice, in contrast to this it is also common for organisations to use csr as a makes good business sense.13 in australia, the use of csr in the tourism industry has become an issue requiring great seriousness and attention. a csr-like model has been practised since the 1990’s as a non-government organisation (ngo) and australian tourism operations network implemented a certification program to improve tourism industry standards in the tourism industry. the program focuses on social, community and environmental benefits besides including human rights and labour benefits.14 1.2. purpose there are two main legal issues that need to be addressed. first, whether tourism industries have legal obligation to implement csr in the local communities. second, regarding the suitable form of csr programmes to be offered to the local communities that would strengthen their position and role in tourism development. this research is then conducted to assess the legal framework of indonesian and australian laws and regulations concerning csr, particularly in tourism sector. in addition, it is aimed at analyzing how the implementation of csr in tourism may strengthen the local communities. 11 emma a.m bevan, and ping yung, “implementation of corporate social responsibility in australian construction smes,” engineering, construction and architectural management. 22, no. 3 (2015): 295-311, https://doi.org/10.1108/ecam-05-2014-0071 12 leeora d. black, who we are (29 april 2015) australian centre for corporate social responsibility <www.accsr.com.au>. 13 ibid, 6. 14 see further decription in section 2.1.2.2 corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna 168 prosecutor v. edy yuwono et.al.6 the problem is a misuse of pt. antamcsr funds by yuwono, a rector of the university of jenderal soedirman. even though the problem did not persist in the allocation of csr funds or the understanding of how the allocated funds should be utilised, this problem should be noted as the hinderance of a smooth implementation of csr. it is worth to acknowledge that csr has approached the tourism sector. tourism is without questions a vastly growing industry sector in indonesia and australia. industries of tourism in indonesia have been established in many corners following the national tourism policy that addresses the willingness to create new 10 (ten) promising tourist destination.7 we may take bali province as an example. the massive development in tourism industries, as indicated by efforts to establish the tourism infrastructures and facilities, has brought great things to the tourism sector in bali. however, the growth of economic seems only benefiting the side of the industries with less consideration to support the existence of local communities. the implementation of csr in tourism industries has been inconsistent in bali since there is no clear ruling enforcing the industries to implement csr in the communities that own the village they established the facilities. in fact, a lot of tourism industries are established in the territory of adat village, the village which consists of local communities based on adat (customary) law and particularly on the philosophy of hindu in bali.8 even if there are ruling implicitly suggesting tourism industries implement csr for the wellbeing of local communities, there is no clear concept on how they should implement csr. instead of this situation, a progress has been made by tri hita karana (thk) foundation when in 2017 included a category for a tourism company that implement csr for an annual award.9 in australia, the issue of csr become an increasingly relevant topic since its introduction in the early 20th century.10 small to medium-sized enterprises (smes) have adopted some csr elements into their business activities without officially 6 decision of the supreme court of the republic of indonesia no. 148/pid.sus/2013/pn.tipikor. smg. https://putusan.mahkamahagung.go.id/putusan/downloadpdf/5cf008a7f4d29b48b0ae89025fcd3a 65/pdf 7 liputan 6.com, “ini dia 10 destinasi wisata yang disebut bali baru,” february 27, 2016, https://www.liputan6.com/lifestyle/read/2445931/ini-dia-10-destinasi-wisata-yang-disebut-bali-baru 8 i made suasthawa dharmayuda, desa adat kesatuan masyarakat hukum adat di propinsi bali (denpasar:upada sastra, 2001), 3. 9 see further description in section 2.1.1.5. 10 see rachael a. truscott, (2007) corporate social responsibility in australia: constructing reputation. in proceedings 2007 australia and new zealand marketing academy conference (anzmac), dunedin, new zealand: 2855. declaring that they issue a policy. for example, in the field of construction industry, most smes have implemented ethical and economic aspects of csr.11 the australian centre for corporate social responsibility (accsr) was formed over a decade ago to work with organisations be manage impacts and assist in performance reports.12 the accsr is not limited to the tourism industry, providing assistance to a wide variety of organisations. to define the concept of csr has externally sourced this information through the international organisation for standardization (iso). the accsr have chosen to use this international definition in an attempt to bring clarity to a concept that endures much debate in terms of the definition. these differences can be attributed to several issues; being are a reflection of national and cultural differences in the approach to business practices and differences in disciplinary actions and perspectives on the implementation of csr methods. additional to this is the differences in the motivation of organisations to become involved in csr. many companies have implemented csr in the opinion that it is a morally correct practice, in contrast to this it is also common for organisations to use csr as a makes good business sense.13 in australia, the use of csr in the tourism industry has become an issue requiring great seriousness and attention. a csr-like model has been practised since the 1990’s as a non-government organisation (ngo) and australian tourism operations network implemented a certification program to improve tourism industry standards in the tourism industry. the program focuses on social, community and environmental benefits besides including human rights and labour benefits.14 1.2. purpose there are two main legal issues that need to be addressed. first, whether tourism industries have legal obligation to implement csr in the local communities. second, regarding the suitable form of csr programmes to be offered to the local communities that would strengthen their position and role in tourism development. this research is then conducted to assess the legal framework of indonesian and australian laws and regulations concerning csr, particularly in tourism sector. in addition, it is aimed at analyzing how the implementation of csr in tourism may strengthen the local communities. 11 emma a.m bevan, and ping yung, “implementation of corporate social responsibility in australian construction smes,” engineering, construction and architectural management. 22, no. 3 (2015): 295-311, https://doi.org/10.1108/ecam-05-2014-0071 12 leeora d. black, who we are (29 april 2015) australian centre for corporate social responsibility <www.accsr.com.au>. 13 ibid, 6. 14 see further decription in section 2.1.2.2 corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna udayana journal of law and culture vol. 02 no.2, july 2018 169 1.3. research methodology it is a normative legal research that basically analyses written official law and regulations and relevant court decisions regarding the issue of csr, company and tourism. concept and analysis were very much taken from the textbook, academic journal articles, reports, and website contents. to clarify the facts, some interviews have been conducted by interviewing a legal expert on csr law and manager of a hotel in bali. a comparative study was conducted by taking the example of csr legal framework in the tourism sector in indonesia and australia. this paper deals with two issues in relation to csr; whether clear rulings are present in legislation and what form of csr is required to be implemented by the tourism industry to benefit local communities. each of these issues will be addressed with primary and secondary research and critically analysed. both issues with will addressed in regard to current research available for bali and australia. each country will be individually analysed and will also be compared to address any similarities implemented by both regions. 1.4. literature review csr is broken down into three issues, this is most commonly known as the ‘triple bottom line’; being the environmental, social and economic influences on local communities. the work of idowa, kasom and yuksel mermod discussed an alternative view of csr; people, profit and planet (ppp) which holds mostly the same ideas as the ‘triple bottom line’ approach. ppp academics suggest that the focus of csr is on the plan of approach, where in fact there needs to be more attention given to the end product.15 the ppp approach attempts to explain the developmental aspect of csr from a conceptual perspective with regard to how the delivery of csr impacts stakeholders (such as employees, customers and government and non-government organisations).16 in addition to the bracketed examples of stakeholders, which are considered to be directly impacted stakeholders, there are also the indirectly impacted stakeholders that include, among others indigenous people and local communities.17 csr and ppp have so far allowed for the protection of human rights, response to climate change and addressed the consequences of globalisation.18 the term sustainable development is also often used in australian jurisdictions with reference to the tourism industry. the definition provided by the world commission on environment and development explains this term as “forms of progress that meet the needs of the present generation without compromising the ability of future generations to meet their needs”.19 15 samuel o. idowa, abu bakar s. kasum and asli yuksel mermod, op.cit. 2. 16 ibid.,6. 17 norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, u.n. doc. e/cn.4/sub.2/2003/12/rev.2 (2003), para. 22. 18 samuel o. idowa, abu bakar s. kasum and asli yuksel mermod, op.cit., 1 19 tourism australia, what is sustainability? (2013) <www.tourism-australia.com> this definition has a similarity with the values of csr, with the focus of sustainable development being on not only the environmental impacts of tourism but also social and economic. the notion of csr requires the commitment of companies to conduct their business in an ethical manner while also contributing to economic growth and improving the quality of life for local communities.20 as research into the topic becomes more readily available the importance of csr increases; this is due to the link between economic growth and social and economic well-being is further understood.21 even with the involvement in csr practices being voluntary and the concept currently not being regulated; companies are under increasing pressure from government and non-government organisations (ngo) to provide a positive influence on society.22 the implementation of ppp and csr was a topic at the 2010 united nations millennium development goals (mdg’s); 198 words leaders attended the conference in new york to resolve 8 socioeconomic issues.23 these issues involved targets such as poverty, education, gender equality, environmental sustainability and the development of sustainable global progress of csr programs in achieving the required 21 targets.24 the united nations aimed to have made a reduction to poverty rates, improve community health standards (including child mortality, and hiv/aids) and promote peace, human rights and gender equality.25 the concept of csr, ‘triple bottom line’, ppp and sustainable development are all of parallel ideas and goals. the underlying commitment to environmental, social and economic development while attempting to build meaningful relationships within the corporate sector and local communities is a goal that has received growing momentum. the use of csr programs is designed the primarily benefit the economic, social and environmental factors of local communities; there also needs to be a benefit to the company to encourage participation. many tourists are in current times much more aware of the ‘footprint’ left by companies; choosing a hotel to stay with or airline carrier is often influenced by the sustainability of the business. the implementation of csr has been found to reduce operating costs, this is achieved through the minimisation of waste, water and energy consumption.26 the use of csr and especially certification in australian companies will provide a competitive advantage over other businesses as tourists make the conscious decision to support companies choosing to minimise their effect on the ppp. companies with 20 ibid. 21 small business nsw commissioner, what is csr? (2014) www.toolkit.smallbiz.nsw.gov.au. 22 ibid. 23 samuel o. idowa, abu bakar s. kasum and asli yuksel mermod, op.cit., 2. 24 ibid., 6. 25 ibid., 3. 26 tourism australia, benefits of sustainability? (2013) <www.tourism-australia.com>. corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna 170 1.3. research methodology it is a normative legal research that basically analyses written official law and regulations and relevant court decisions regarding the issue of csr, company and tourism. concept and analysis were very much taken from the textbook, academic journal articles, reports, and website contents. to clarify the facts, some interviews have been conducted by interviewing a legal expert on csr law and manager of a hotel in bali. a comparative study was conducted by taking the example of csr legal framework in the tourism sector in indonesia and australia. this paper deals with two issues in relation to csr; whether clear rulings are present in legislation and what form of csr is required to be implemented by the tourism industry to benefit local communities. each of these issues will be addressed with primary and secondary research and critically analysed. both issues with will addressed in regard to current research available for bali and australia. each country will be individually analysed and will also be compared to address any similarities implemented by both regions. 1.4. literature review csr is broken down into three issues, this is most commonly known as the ‘triple bottom line’; being the environmental, social and economic influences on local communities. the work of idowa, kasom and yuksel mermod discussed an alternative view of csr; people, profit and planet (ppp) which holds mostly the same ideas as the ‘triple bottom line’ approach. ppp academics suggest that the focus of csr is on the plan of approach, where in fact there needs to be more attention given to the end product.15 the ppp approach attempts to explain the developmental aspect of csr from a conceptual perspective with regard to how the delivery of csr impacts stakeholders (such as employees, customers and government and non-government organisations).16 in addition to the bracketed examples of stakeholders, which are considered to be directly impacted stakeholders, there are also the indirectly impacted stakeholders that include, among others indigenous people and local communities.17 csr and ppp have so far allowed for the protection of human rights, response to climate change and addressed the consequences of globalisation.18 the term sustainable development is also often used in australian jurisdictions with reference to the tourism industry. the definition provided by the world commission on environment and development explains this term as “forms of progress that meet the needs of the present generation without compromising the ability of future generations to meet their needs”.19 15 samuel o. idowa, abu bakar s. kasum and asli yuksel mermod, op.cit. 2. 16 ibid.,6. 17 norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, u.n. doc. e/cn.4/sub.2/2003/12/rev.2 (2003), para. 22. 18 samuel o. idowa, abu bakar s. kasum and asli yuksel mermod, op.cit., 1 19 tourism australia, what is sustainability? (2013) <www.tourism-australia.com> this definition has a similarity with the values of csr, with the focus of sustainable development being on not only the environmental impacts of tourism but also social and economic. the notion of csr requires the commitment of companies to conduct their business in an ethical manner while also contributing to economic growth and improving the quality of life for local communities.20 as research into the topic becomes more readily available the importance of csr increases; this is due to the link between economic growth and social and economic well-being is further understood.21 even with the involvement in csr practices being voluntary and the concept currently not being regulated; companies are under increasing pressure from government and non-government organisations (ngo) to provide a positive influence on society.22 the implementation of ppp and csr was a topic at the 2010 united nations millennium development goals (mdg’s); 198 words leaders attended the conference in new york to resolve 8 socioeconomic issues.23 these issues involved targets such as poverty, education, gender equality, environmental sustainability and the development of sustainable global progress of csr programs in achieving the required 21 targets.24 the united nations aimed to have made a reduction to poverty rates, improve community health standards (including child mortality, and hiv/aids) and promote peace, human rights and gender equality.25 the concept of csr, ‘triple bottom line’, ppp and sustainable development are all of parallel ideas and goals. the underlying commitment to environmental, social and economic development while attempting to build meaningful relationships within the corporate sector and local communities is a goal that has received growing momentum. the use of csr programs is designed the primarily benefit the economic, social and environmental factors of local communities; there also needs to be a benefit to the company to encourage participation. many tourists are in current times much more aware of the ‘footprint’ left by companies; choosing a hotel to stay with or airline carrier is often influenced by the sustainability of the business. the implementation of csr has been found to reduce operating costs, this is achieved through the minimisation of waste, water and energy consumption.26 the use of csr and especially certification in australian companies will provide a competitive advantage over other businesses as tourists make the conscious decision to support companies choosing to minimise their effect on the ppp. companies with 20 ibid. 21 small business nsw commissioner, what is csr? (2014) www.toolkit.smallbiz.nsw.gov.au. 22 ibid. 23 samuel o. idowa, abu bakar s. kasum and asli yuksel mermod, op.cit., 2. 24 ibid., 6. 25 ibid., 3. 26 tourism australia, benefits of sustainability? (2013) <www.tourism-australia.com>. corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna udayana journal of law and culture vol. 02 no.2, july 2018 171 csr policies are also more likely to attract and retain highly skilled and valuable staff members, this can be attributed to the use of csr programs that protect the rights of employees to receive fair wages, equal opportunities and gender equality.27 investors in the tourism industry may also be likely to invest in a company where they can show they have sustainable plans for the environment, society and economy. csr plans have the ability to improve current financial spending along with the future profitability of the company. upfront expenses, in such areas as transport costs in current time, will create future saving as the price of petroleum continues to rise.28 companies using csr programs are likely to experience a variety of business improvements, these can be experienced as current benefits to the company and also as long-term improvements. as with any business concept, there are also debate over the validity of csr. there is a current debate over where the responsibility of a company lies. one side of this argument sees the responsibility to only extend to those immediately affected by the company such as the owners, directors and shareholders. alternatively, (and in line with csr values) others have argued that the responsibility of a company should not be limited. not only in regards to current environmental, social and economic concerns but also with regard to all past, present and future impacts the company may have on these ‘bottom line’ issues.29 the issue has also been raised that the use of csr principles undermines the fundamental principles of business practices. economists believe the true purpose of business is to provide a profitable company, benefiting the owners and shareholders. it is argued that the use of csr is a conflict to the fundamental purpose of business practices.30 as ruled in dodge v. ford,31 the primary purpose of the business organisation is to gain profit for the stakeholders.32 this seems to be very straightforward to the extent of a business organisation to exist in the first place, notwithstanding the jarring ruling, this case is not unique. in the traditional approach of csr, the business company has no place for charity in its board of directors, thus making a csr is rather unimportant if it has no benefit to the company.33 minh nguyen, jo bensemann, and stephen kelly developed a multilevel conceptual framework to understand the csr nature in vietnam that consisting 27 human rights commission, corporate social responsibility and human rights (2008) <www.humanrights.gov.au>. 28 tourism australia, benefits of sustainability? op.cit. 29 small business nsw commissioner, op.cit. 30 ibid.,49. 31 dodge v. ford motor co., 204 mich. 459, 170 n.w. 668, 1919 mich. lexis 720, 3 a.l.r. 413 (mich. 1919). 32 ibid., 684 per ostrander cj, 685 per steere, fellows, stone, brooke jj concurring 33 david greenberg, “making corporate social responsibility aneveryday part of the business of business: offeringrealistic options for regulatory reform,” bond law review 19, no. 2 (2007): 43. 172 of three institutional contextual factors, namely tradition, political governance, and modernity.34 in an understanding that csr concept is not well defined in vietnam and that western frameworks may not hold up in the vietnamese context, they argued that any examination of csr in vietnam without contextualisation could perpetuate a superficial understanding of csr and may yield invalid results.35 international communities have enriched the basic idea of csr by endorsing a concept of corporate responsibility under the human rights framework. it has been emphasized, as a foundational principle, that business enterprises should respect human rights.36 it is important to consider that as knowledge grows into sustainable development of the environment, society and the economy companies are likely to see a merge in values. public opinion is a very important tool while trying to run an effective business if companies hold to these out-dated opinions of fundamental business practices they will likely lose their competitiveness in the tourism industry. some studies have elaborated on the issue of csr. laurensia andrin conducted a study on csr that analyses how mandatory csr is for limited liability company having business in the field of and/or related to natural resources and why csr needs to be mandatory instead of voluntary.37 she views indonesian government has a mediocre stance in regulating csr.38 one hand, the government has the intention to create social and environmental obligation towards companies having business related to the utilization of natural resources, while on the other hand, it seems to leave the company obligations without any specific regulation on how the csr should be implemented by the company.39 muchamad ali safa’at discusses csr from a constitutional law perspective, especially human rights aspect.40 he argued that from a constitutional law perspective the development of csr regulation has a very solid foundation, at least for four reasons. first of all, csr is one of the efforts to achieve social justices as one of the bases of the state. second, csr is a form of corporate constitutional obligation to respect and promote human rights. third, csr mandatory regulation 34 minh nguyen, jo bensemann, and stephen kelly, “corporate social responsibility (csr) in vietnam: a conceptual framework,” international journal of corporate social responsibility 3, no.9 (2018): 1, https://doi.org/10.1186/s40991-018-0032-5 35 ibid, 10. 36 the office of the un high commissioner for human rights, guiding principles on business and human rights implementing the united nations “protect, respect and remedy” framework, united nations, 2011: 13. 37 the office of the un high commissioner for human rights, guiding principles on business and 38 ibid, 514. 39 ibid. 40 muchamad ali safa’at, “corporate social responsibility: a constitutional perspective,”jurnal konstitusi 11, no. 1 (march 2014): 3. corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna udayana journal of law and culture vol. 02 no.2, july 2018 173 can be justified because the state holds the primary responsibility for the protection and fulfilment of human rights, including establishing a rule that imposes a csr duty to the corporation. fourth, there is a potential violation of civil and political rights as well as economic, social, and cultural rights as guaranteed by the indonesian constitution that requires company to play a role in the protection and promotion of human rights.41 an emerging discussing raises when csr is implemented in the tourism sector. tourism and its impact on the social environment are commonly discussed among scholarly articles. the discussion ranging from its impact as a worldwide phenomenon that has become one of the faster-growing sectors of the global economy, to its direct and indirect exploitation of the culture of the society in general and the indigenous one.42 relying on this, it is reasonable to assume that tourism industry owes a significant amount to its surroundings especially to those living in the vicinity of the tourism industry.43 scholars also think that this particular sector is an effective stimulant to the economy of a country or a region and it is not a news, especially in indonesia.44 tourism itself is defined as any activities involving tourists as the centre of things,45 which typically produce tourism characteristic products.46 the said products involve either good or services that represent the supply and demand of the tourism that would cease to exist upon the absence of visitors.47 there has been some literature discussing csr in tourism. hughes and scheyvens conducted a study in order to respond to the greater demands on businesses after 2015 by proposing a development first framework for csr that 41 ibid, 16. 42 see azilah kasim, “the need for business envronmental and social responsibility in the tourism industry,” international journal of hospitality & tourism administration, 7 no. (2016): 1-22, doi: 10.1300/j149v07n01_01 (2006); see also putri triari dwijayanti et al, “indigenous people, economic development and sustainable tourism: a comparative analysis between bali, indonesia and australia,” udayana journal of law and culture 1,no. 1 (2017): 16-30. 43 tjok istri putra astiti and i ketut sudantra, “reflecting on tourism activities in bali: a discourse on communal rights, culture and hindu values,” in sustainable tourism and law, ed. michael g. faure, ni ketut supasti dharmawan and i made budi arsika (den haag: eleven international publishing, 2014), 235. 44 made suksma prijandhini devi salain, david isles, and i gusti ngurah wairocana, “regulating indigenous culture as a tourism economic resource,” udayana journal of law and culture 1 (2): 121140. doi:10.24843/ujlc.2017.v01.i02 (2017): 3; see also aditya yuli, “city branding sebagai strategi pengembangan pariwisata ditinjau dari aspek hukum merek (studi kasus city branding daerah istimewa yogyakarta sebagai daerah tujuan wisata unggulan di indonesia)”, jurnal ilmiah ilmu hukum qisti 5, no. 1 (2011). 45 john tribe, “the concept of tourism: framing a wide tourism world and broad tourism society”, tourism recreation research 24, no.2 (2014): 75-81. https://doi.org/10.1080/02508281.1999.1 1014879 46 “understanding tourism basic glossary,” world tourism organisation url: cf.cdn.unwto.org/ sites/all/files/docpdf/glossaryenrev.pdf 47 ibid. is adapted from peter burns’ tourism planning model.48 another publication can be read in a qualitative research conducted by patricia martinez et.al that develops an efficient measurement scale for csr in the tourism industry. such research discovered a multidimensional structure including economic, social, and environmental issues.49 mara del baldo published an article that aims to analyse the fundamentals (internal and external factors) which characterize the sustainable business model in the tourism sector that is conducted in both deductive and inductive research approach.50 on the issue of governance and transparency, he discussed that the company is aware that the consolidation of a clear positioning as responsible company necessarily requires a strengthening of disclosure processes which rests on a gradual and lengthy evolution of the company culture. in particular, the monitoring of economic, financial, social and environmental objectives presupposes a reliable business reporting capable of stimulating information sharing and collaboration with stakeholders.51 2. result and analysis 2.1. legal framework on corporate social responsibility in tourism sector 2.1.1. case study of indonesia the following explanations will describe the regulation of csr under the indonesian investment act, indonesian limited liability company act and its implementing regulation, the decision of indonesian constitutional court concerning csr issue. in addition, this section will also discuss the legal framework on csr in tourism in indonesia. 2.1.1.1. indonesian investment act actno. 25 year 2007 concerning investment stipulates that every investor is obliged to implement csr.52 what is meant by csr is the responsibility inherent in each investment firm to keep creating relationships harmonious, balanced, and in accordance with the environment, values, norms, and local culture.53 while the 48 emma hughes and regina scheyvens, “corporate social responsibility in tourism post-2015: a development first approach,” tourism geographies 18 no.5 (2016): 469-482. https://doi.org/10.1080/14 616688.2016.1208678 49 patricia martinez, andrea pérez and ignacio rodríguez del bosque, “measuring corporate social responsibility in tourism: development and validation of an efficient measurement scale in the hospitality industry,” journal of travel & tourism marketing 30, no.4 (2013): 365-385. https://doi.org/10.1080/1054 8408.2013.784154 50 mara del baldo,“sustainability and csr orientation through “edutainment” in tourism,” international journal of corporate social responsibility 3, no.5 (2018):1, https://doi.org/10.1186/s40991018-0027-2 51 ibid, 8. 52 act of republic of indonesia no. 25 year 2007 concerning investment, art. 15 (b). 53 act of republic of indonesia no. 25 of 2007 concerning investment; see also md. abdul hamid, 2010, “csr in tourism”, ssrn available at: http://dx.doi.org/10.2139/ssrn.1684185 corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna 174 can be justified because the state holds the primary responsibility for the protection and fulfilment of human rights, including establishing a rule that imposes a csr duty to the corporation. fourth, there is a potential violation of civil and political rights as well as economic, social, and cultural rights as guaranteed by the indonesian constitution that requires company to play a role in the protection and promotion of human rights.41 an emerging discussing raises when csr is implemented in the tourism sector. tourism and its impact on the social environment are commonly discussed among scholarly articles. the discussion ranging from its impact as a worldwide phenomenon that has become one of the faster-growing sectors of the global economy, to its direct and indirect exploitation of the culture of the society in general and the indigenous one.42 relying on this, it is reasonable to assume that tourism industry owes a significant amount to its surroundings especially to those living in the vicinity of the tourism industry.43 scholars also think that this particular sector is an effective stimulant to the economy of a country or a region and it is not a news, especially in indonesia.44 tourism itself is defined as any activities involving tourists as the centre of things,45 which typically produce tourism characteristic products.46 the said products involve either good or services that represent the supply and demand of the tourism that would cease to exist upon the absence of visitors.47 there has been some literature discussing csr in tourism. hughes and scheyvens conducted a study in order to respond to the greater demands on businesses after 2015 by proposing a development first framework for csr that 41 ibid, 16. 42 see azilah kasim, “the need for business envronmental and social responsibility in the tourism industry,” international journal of hospitality & tourism administration, 7 no. (2016): 1-22, doi: 10.1300/j149v07n01_01 (2006); see also putri triari dwijayanti et al, “indigenous people, economic development and sustainable tourism: a comparative analysis between bali, indonesia and australia,” udayana journal of law and culture 1,no. 1 (2017): 16-30. 43 tjok istri putra astiti and i ketut sudantra, “reflecting on tourism activities in bali: a discourse on communal rights, culture and hindu values,” in sustainable tourism and law, ed. michael g. faure, ni ketut supasti dharmawan and i made budi arsika (den haag: eleven international publishing, 2014), 235. 44 made suksma prijandhini devi salain, david isles, and i gusti ngurah wairocana, “regulating indigenous culture as a tourism economic resource,” udayana journal of law and culture 1 (2): 121140. doi:10.24843/ujlc.2017.v01.i02 (2017): 3; see also aditya yuli, “city branding sebagai strategi pengembangan pariwisata ditinjau dari aspek hukum merek (studi kasus city branding daerah istimewa yogyakarta sebagai daerah tujuan wisata unggulan di indonesia)”, jurnal ilmiah ilmu hukum qisti 5, no. 1 (2011). 45 john tribe, “the concept of tourism: framing a wide tourism world and broad tourism society”, tourism recreation research 24, no.2 (2014): 75-81. https://doi.org/10.1080/02508281.1999.1 1014879 46 “understanding tourism basic glossary,” world tourism organisation url: cf.cdn.unwto.org/ sites/all/files/docpdf/glossaryenrev.pdf 47 ibid. is adapted from peter burns’ tourism planning model.48 another publication can be read in a qualitative research conducted by patricia martinez et.al that develops an efficient measurement scale for csr in the tourism industry. such research discovered a multidimensional structure including economic, social, and environmental issues.49 mara del baldo published an article that aims to analyse the fundamentals (internal and external factors) which characterize the sustainable business model in the tourism sector that is conducted in both deductive and inductive research approach.50 on the issue of governance and transparency, he discussed that the company is aware that the consolidation of a clear positioning as responsible company necessarily requires a strengthening of disclosure processes which rests on a gradual and lengthy evolution of the company culture. in particular, the monitoring of economic, financial, social and environmental objectives presupposes a reliable business reporting capable of stimulating information sharing and collaboration with stakeholders.51 2. result and analysis 2.1. legal framework on corporate social responsibility in tourism sector 2.1.1. case study of indonesia the following explanations will describe the regulation of csr under the indonesian investment act, indonesian limited liability company act and its implementing regulation, the decision of indonesian constitutional court concerning csr issue. in addition, this section will also discuss the legal framework on csr in tourism in indonesia. 2.1.1.1. indonesian investment act actno. 25 year 2007 concerning investment stipulates that every investor is obliged to implement csr.52 what is meant by csr is the responsibility inherent in each investment firm to keep creating relationships harmonious, balanced, and in accordance with the environment, values, norms, and local culture.53 while the 48 emma hughes and regina scheyvens, “corporate social responsibility in tourism post-2015: a development first approach,” tourism geographies 18 no.5 (2016): 469-482. https://doi.org/10.1080/14 616688.2016.1208678 49 patricia martinez, andrea pérez and ignacio rodríguez del bosque, “measuring corporate social responsibility in tourism: development and validation of an efficient measurement scale in the hospitality industry,” journal of travel & tourism marketing 30, no.4 (2013): 365-385. https://doi.org/10.1080/1054 8408.2013.784154 50 mara del baldo,“sustainability and csr orientation through “edutainment” in tourism,” international journal of corporate social responsibility 3, no.5 (2018):1, https://doi.org/10.1186/s40991018-0027-2 51 ibid, 8. 52 act of republic of indonesia no. 25 year 2007 concerning investment, art. 15 (b). 53 act of republic of indonesia no. 25 of 2007 concerning investment; see also md. abdul hamid, 2010, “csr in tourism”, ssrn available at: http://dx.doi.org/10.2139/ssrn.1684185 corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna udayana journal of law and culture vol. 02 no.2, july 2018 175 definition of investor is an individual or business entity that makes an investment that can be either domestic investors or foreign investors.54 in addition, article 16 stipulates that every investor is responsible to preserve the environment. 2.1.1.2. indonesian limited liability company act corporate social responsibility in indonesia is regulated under the act no. 40 year 2007 concerning limited liability company. this act defines social and environmental responsibility as a commitment of companies to actively involved in sustainable economic development in order to develop the quality of life and the environment in which has benefit the companies, local communities as well as the community in general.55 article 74 (1) of this act, in essence, regulates that limited liability company (llc) which run their business in the field of or related to the natural resources are obliged to implement social and environmental responsibility. article 74 (3) further emphasizes that the non-compliance of such rule may be imposed a sanction.56 however, elucidation of this provision does not give an explanation on what kind of sanction shall be given to the company,57 2.1.1.3.government regulation concerning social and environmental responsibility of limited company it is further affirmed in the government regulation no. 47 year 2012 concerning social and environmental responsibility of limited liability company that the llc has obligation to implement csr.58 the implementation of csr is carried out by the director in accordance with the annual work plan of the company after consented by the board of commissioners or the general meeting of the shareholders in accordance with the charter of the company.59 this regulation reiterates the norm as stipulated in article 74 (3) of the indonesian limited liability company act that the disobedience in implementing csr may be imposed a sanction,60 but, again, does not further explain in detail the type of sanction. local governments have interpreted that the suitable type of penalty to be imposed on companies that are not implemented csr is an administrative sanction. this may be in form of written warning, restrictions on corporate activities, freezing of 54 act of republic of indonesia no. 25 year 2007 concerning investment, art. 1 (4). 55 act of republic of indonesia no. 40 year 2007 concerning limited liability company, art.1 (3). 56 ibid, art. 74 (3). 57 ibid. see elucidation art. 74 (3). 58 government regulation of republic of indonesia no. 47 year 2012 concerning social and environmental responsibility of limited liability company, art. 3 (1). 59 ibid, art. 4 (1). 60 ibid, art. 7. 176 business activities and/or investment facilities, and revocation of business licence and/or investment facility.61 2.1.1.4. the ruling of indonesian constitutional court on csr: strengthening the obligatory character of csr a judicial review regarding the constitutionality of rule on csr was submitted by muhammad suleiman hidayat (chief of indonesian chamber of commerce and industry) et.al before the constitutional court of indonesia.62 the applicants requested the court to examine the constitutionality of article 74 of act no. 40 year 2007 concerning company. they argued that this provision violates constitutional rights on legal certainty as stipulated in article 28d (1) of, implies a discriminatory character that against the norm laid down in article 28i (2) indonesian constitution, and does not reflect the principle of fair efficiency as underlined in article 33 (4) of indonesian constitution.63 the court taken into consideration of statement submitted by an expert maria r. nindita radyati that explains the csr should be meant in line with culture developed in each country and therefore the implementation of csr in indonesia is different from the practice in the united kingdom, australia, the netherlands, canada, france, germany, and the united states of america.64 on the issue of interpretation on double charges imposed to the company, the court clarifies that there is a clear difference between taxation and csr and therefore the two type of funds cannot be generalized.65 one hand, tax is used for national development while on the other hand the fund of csr is utilized for the sake of communities and environmental recovery surrounding the company.66 this hence makes clear that there will be no double charges because the cost incurred for csr will be calculated as the cost of the company in which its implementation is constituted by the ability of a company.67 the court also considers that constructing csr as a legal obligation, instead of classifying csr as a voluntary nature, would make it having more legal certainty. the court had an expectation that the shifting from voluntary into mandatory character 61 regulation of buleleng regency no. 7 year 2017 concerning corporate social and environment responsibility, art. 25 (1) and regulation of badung regency no. 7 year 2017 concerning corporate social responsibility, art. 22. 62 decision of constitutional court of the republic of indonesia no. 53/puu-vi/2008, para 1.2, 1, http://www.mahkamahkonstitusi.go.id/public/content/persidangan/putusan/putusan_sidang_putusan%20nomor%2053%20puu%20vi2008.pdf 63 ibid. para 2.1. 3. 64 ibid. para 3.19. 92. 65 ibid. 66 ibid. 67 ibid, 93. corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna udayana journal of law and culture vol. 02 no.2, july 2018 177 would ensure the company contributions to participate in improving the welfare of society. in addition, the legal obligation of csr would anticipate various interpretation by companies to implement it.68 in the verdict, the court decided that the norms and legal obligation of csr as stipulated in articles 74 (1), (2), and (3) and elucidation of the act no. 40 year 2007 on company is not incompatible with articles 28d (1), 28i (2), and 33 (4) of the 1945 constitution of the republic of indonesia.69 the judgment was not adopted unanimously. three among nine justices of the indonesian constitutional court deliver a joint dissenting opinion. they paid an attention to the term “should” in the seven principles of csr as stipulated ed in iso 26000 and concluded that the implementation of csr has a voluntary character as it is very much linked to the issue of ethics, moral, and appropriateness.70 they are in an opinion that the principle of togetherness must be upheld in a trusted and egalite relations between government and entrepreneurs, so thus, the implementation of csr should not be a legal obligation under the law and should not be punishable in case of non-compliance.71 both obligation and sanction natures in the rules on csr implies that the state has a more dominant position on the entrepreneur, so the principle of togetherness is not respected anymore.72 muchammad ali safa’at assesses the legal reasoning in the decision of the court. he views that mandatory csr regulation is based on the basic constitutional principle of social justice, control of the state over natural resources, and the principle of people-oriented economy.73 he also criticizes the judgment that has not considered the constitutional provisions on human rights that is in contrast to the international developments on the concept of csr that very much adopt human rights approach. despite indonesian constitutional court rejected this judicial review, the debates on whether the csr shall be mandatory or voluntary in nature still goes on.74 2.1.1.5. csr in tourism in indonesia if we take a closer look at the clause “in the field of natural resources”75 we would immediately think of industries of gas, oil, mining or any other companies that directly use the natural resources. tourism industries would be discounted from that clause. the clause “related to natural resources”, in the other hand, gives 68 ibid. 69 ibid, para 4.5. 70 ibid. joint dissenting opinions by justices maria farida indrati, maruarar siahaan, and m. arsyad sanusi, para 6, 103-104. 71 ibid, 110. 72 ibid. 73 muchamad ali safa’at, op.cit., 6. 74 laurensia andrin, op.cit., 513. 75 as written in act no. 40 of 2007. the obligation of csr to the company that do not use natural resources but the establishment affect the natural resources, which means tourism industries are included.76 according to article 1 paragraph 9 of act no. 10 year 2009 concerning tourism, the industries of tourism are integrated associations of tourism business in order to provide goods and/or services to satisfy the needs of tourism in conducting the tourism. article 7 then stipulates that the development of tourism includes: a. tourism industries b. tourism destination c. marketing d. tourism institution the law then explain that the development of tourism industries is the development of structure (function, hierarchy and relation) of the industries, competitiveness, a partnership of tourism business, the credibility of the business, as well as the responsibility with regard to the environment and social culture.77 it is worth to acknowledge that some local governments that very much benefited from tourism industry have approaching regulations on csr to tourism industry. for example, government of badung regency enacted regulation no. 6 year 2013 concerning corporate social responsibility that does not explicitly mention csr shall be applied in the tourism sector. as stipulated in article 10 of this regulation, every company in the region of badung, without clarifying the type of company activities, must implement csr. the concern csr in tourism sector can be seen in elucidation of this act that explains the rapid growth of the current economy can be indicated from the increasing number of company types that grow and develop, among others, hotels, transport services, and other tourism support services.78 it also further explains that this regulation was enacted by considering that badung region has a strategy to manage the csr in the region in order to ensure that csr will be implemented in harmony in accordance with balinese culture, inspired by hindu values, related to socio-economic aspects and ecosystem as supporter of cultural tourism talent. the aforementioned explanation indicates that rules covering the issue of csr in tourism are implied in local regulation. csr in the tourism sector has been practised in bali. the direct and indirect impacts of tourism cause the llcs engaged in tourism have an obligation to 76 anak agung sri indrawati, ni ketut supasti dharmawan, and ida ayu sukihana, “implelmentasi konsep csr (corporate social responsibility) pada perusahaan industri pariwisata di bali,” jurnal lmiah fakultas hukum, udayana university (2012): 131; see also antonio argandoña, “corporate social responsibility in the tourism industry: some lessons from the spanish experience,” iese business school working paper no. 844 (2010): 14. available at ssrn: http://dx.doi.org/10.2139/ssrn.1593592 77 explanation to article 7 of law no 10 year 2009 concerning tourism. 78 regulation of badung regency no. 6 year 2013 concerning corporate social responsibility, elucidation, part. i. corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna 178 would ensure the company contributions to participate in improving the welfare of society. in addition, the legal obligation of csr would anticipate various interpretation by companies to implement it.68 in the verdict, the court decided that the norms and legal obligation of csr as stipulated in articles 74 (1), (2), and (3) and elucidation of the act no. 40 year 2007 on company is not incompatible with articles 28d (1), 28i (2), and 33 (4) of the 1945 constitution of the republic of indonesia.69 the judgment was not adopted unanimously. three among nine justices of the indonesian constitutional court deliver a joint dissenting opinion. they paid an attention to the term “should” in the seven principles of csr as stipulated ed in iso 26000 and concluded that the implementation of csr has a voluntary character as it is very much linked to the issue of ethics, moral, and appropriateness.70 they are in an opinion that the principle of togetherness must be upheld in a trusted and egalite relations between government and entrepreneurs, so thus, the implementation of csr should not be a legal obligation under the law and should not be punishable in case of non-compliance.71 both obligation and sanction natures in the rules on csr implies that the state has a more dominant position on the entrepreneur, so the principle of togetherness is not respected anymore.72 muchammad ali safa’at assesses the legal reasoning in the decision of the court. he views that mandatory csr regulation is based on the basic constitutional principle of social justice, control of the state over natural resources, and the principle of people-oriented economy.73 he also criticizes the judgment that has not considered the constitutional provisions on human rights that is in contrast to the international developments on the concept of csr that very much adopt human rights approach. despite indonesian constitutional court rejected this judicial review, the debates on whether the csr shall be mandatory or voluntary in nature still goes on.74 2.1.1.5. csr in tourism in indonesia if we take a closer look at the clause “in the field of natural resources”75 we would immediately think of industries of gas, oil, mining or any other companies that directly use the natural resources. tourism industries would be discounted from that clause. the clause “related to natural resources”, in the other hand, gives 68 ibid. 69 ibid, para 4.5. 70 ibid. joint dissenting opinions by justices maria farida indrati, maruarar siahaan, and m. arsyad sanusi, para 6, 103-104. 71 ibid, 110. 72 ibid. 73 muchamad ali safa’at, op.cit., 6. 74 laurensia andrin, op.cit., 513. 75 as written in act no. 40 of 2007. the obligation of csr to the company that do not use natural resources but the establishment affect the natural resources, which means tourism industries are included.76 according to article 1 paragraph 9 of act no. 10 year 2009 concerning tourism, the industries of tourism are integrated associations of tourism business in order to provide goods and/or services to satisfy the needs of tourism in conducting the tourism. article 7 then stipulates that the development of tourism includes: a. tourism industries b. tourism destination c. marketing d. tourism institution the law then explain that the development of tourism industries is the development of structure (function, hierarchy and relation) of the industries, competitiveness, a partnership of tourism business, the credibility of the business, as well as the responsibility with regard to the environment and social culture.77 it is worth to acknowledge that some local governments that very much benefited from tourism industry have approaching regulations on csr to tourism industry. for example, government of badung regency enacted regulation no. 6 year 2013 concerning corporate social responsibility that does not explicitly mention csr shall be applied in the tourism sector. as stipulated in article 10 of this regulation, every company in the region of badung, without clarifying the type of company activities, must implement csr. the concern csr in tourism sector can be seen in elucidation of this act that explains the rapid growth of the current economy can be indicated from the increasing number of company types that grow and develop, among others, hotels, transport services, and other tourism support services.78 it also further explains that this regulation was enacted by considering that badung region has a strategy to manage the csr in the region in order to ensure that csr will be implemented in harmony in accordance with balinese culture, inspired by hindu values, related to socio-economic aspects and ecosystem as supporter of cultural tourism talent. the aforementioned explanation indicates that rules covering the issue of csr in tourism are implied in local regulation. csr in the tourism sector has been practised in bali. the direct and indirect impacts of tourism cause the llcs engaged in tourism have an obligation to 76 anak agung sri indrawati, ni ketut supasti dharmawan, and ida ayu sukihana, “implelmentasi konsep csr (corporate social responsibility) pada perusahaan industri pariwisata di bali,” jurnal lmiah fakultas hukum, udayana university (2012): 131; see also antonio argandoña, “corporate social responsibility in the tourism industry: some lessons from the spanish experience,” iese business school working paper no. 844 (2010): 14. available at ssrn: http://dx.doi.org/10.2139/ssrn.1593592 77 explanation to article 7 of law no 10 year 2009 concerning tourism. 78 regulation of badung regency no. 6 year 2013 concerning corporate social responsibility, elucidation, part. i. corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna udayana journal of law and culture vol. 02 no.2, july 2018 179 implement csr. these companies may implement csr by conducting environmental management and social activities for the local communities that support the sustainable tourism development in bali.79 we may also take an example of tri hita karana (thk) foundation that regularly conducts annual award to tourism stakeholders that implement the principles of tri hita karana (the three causes of well-being).80 in 2017, the thk award included a category for tourism company that implement csr.81 one of the tourism companies that have been awarded csr thk award 2017 is indonesia tourism development corporation (itdc), a state-own enterprises due to its effort to develop an initiation project of pinge tourism village, a village that is located in tabanan regency. such csr award stimulates itdc to develops some tourism villages in the northern part of bali in 2018.82 a few years ago, tourism industries that are located in gianyar regency provided a medical check for the eye as well as surgery for cataract.83 moving to the southern part of bali, melia hotel, one of hotels located in nusa dua, did its csr programme by celebrating universal children day.84 in an interview with ni ketut supasti dharmawan, she expressed her joy at seeing how well tourism industries have committed to implementing the csr programme.85 her words are affirmed by the practice of bali safari and marine park which did the programme of csr by playing a role for public health. 2.1.2. case study of australia both the australian government and corporations involved in making progress of csr. in last decade, some government initiatives on csr can be seen in prime minister’s business community partnership awards, australian government corporations and markets advisory committee, parliamentary joint committee on corporations and financial services and related reports commissioned by department of family and department of the environment and heritage.86 the progress made 79 viddi dandi yanta, “implementasi corporate social responsibility (csr) pada perseroan terbatas yang bergerak dalam bidang pariwisata di bali” (thesis, magister of notary, gadjah mada university, 2009). 80 see dik roth and gede sedana “reframing tri hita karana: from ‘balinese culture’ to politics”, the asia pacific journal of anthropology 16, no. 2(2015) 157-175, doi: 10.1080/14442213.2014.994674 81 “tri hita karana csr awards bagi perusahaan yang melakukan tanggung jawab sosial,” kabar dewata, november 27, http://kabardewata.com/berita/berita-utama/sosial/tri-hita-karana-csr-awardsbagi-perusahaan.html#.wxvkhzsfndg2017. 82 ema sukarelawanto,“itdc raih super platinum & csr tri hita karana award 2017,” kabar 24-bisnis.com, november 26, 2017, http://kabar24.bisnis.com/read/20171126/78/712684/itdc-raihsuper-platinum-csr-tri-hita-karana-award-2017 83 bali safari and marine park, safari peduli pemeriksaan mata dan operasi katarak untuk lansia bersama john fawcett foundation<http://www.balisafarimarinepark.com/news/1395/safari_peduli_pemeriksaan_mata_dan_operasi_katarak_untuk_lansia_bersama_john_fawcett_foundation_.html> 84 csr bali, universal children day celebration at melia bali indonesia. <http://www.csrbali.com/ universal-children-day-celebration-at-melia-bali-indonesia.htm> 85 ni ketut supasti dharmawan, “csr in tourism industries, ” interview by authors, faculty of law, udayana university, denpasar, december 7, 2015. 86 rachael a. truscott, op.cit, 2857. by the government was hand in hand with business sectors initiatives. structure of companies have accommodatedcsr positions, departments and committees besides seeking expert advice on csr strategy development from niche csr consultancies. in addition, conferences and events have regularly convened in australia discussing thematic issues and involving the wide range of interested actors.87 2.1.2. 1. australian corporation the corporations act 2001 (cth) in section 181(1) subsection a states a director (or another officer) of a corporation must “exercise their powers and discharge their duties”88 while acting in good faith and in the best interest of the corporation. subsection (b) states the director must act in relation to a proper purpose. this provides several issues; the interpretation of ’good faith’ and ‘proper purposes’ and the lack of inclusion for the best interests of the community. the act does not define these specific terms89; additionally, the acts interpretation act 1901 (cth) also does not provide for these terms.90 it is then adequate to use the natural meaning of the word (or phrase); the term good faith is defined as the “honesty of purpose or sincerity of declaration”.91 in interpreting this it is it is important to consider the purpose of the corporations act 2001 (cth); this being that the act is not limiting the operation of state or territory law and is intended to impose additional obligations, liabilities and powers on organisations.92 therefore, it is adequate to assume the act is suggesting in section 181 that an organisation is required to perform its business obligations in an honest and sincerer manner. the act fails to specifically mention the need to act in the best interests of the local communities (or environment). subsection (b) referring to the director of an organisation acting for ‘proper purposes’ is also a section that can be misinterpreted. this is quite an open phrase, giving organisations a wide scope while acting within the law. 2.1.2.2. csr in tourism in australia since the 1990’s australia has implemented a certification program to achieve improvement of standards in the tourism industry. this is offered through the nature and ecotourism accreditation program (neap) which provides voluntary accreditation for organisations. this program is offered by a non-government organisation (ngo) in conjunction with the australian tourism operations network.93 87 ibid. 88 corporations act 2001 s181. 89 corporations act 2001 (cth) s9. 90 acts interpretation act 1901 (cth) part 2. 91 macquarie online dictionary (2015) <www.macquariedictionary.com.au>. 92 corporations act 2001 (cth) s5e. 93 rachel dodds and marion joppe, csr in the tourism industry? the status of and potential for certification, codes of conduct and guidelines (2005), 50. corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna 180 implement csr. these companies may implement csr by conducting environmental management and social activities for the local communities that support the sustainable tourism development in bali.79 we may also take an example of tri hita karana (thk) foundation that regularly conducts annual award to tourism stakeholders that implement the principles of tri hita karana (the three causes of well-being).80 in 2017, the thk award included a category for tourism company that implement csr.81 one of the tourism companies that have been awarded csr thk award 2017 is indonesia tourism development corporation (itdc), a state-own enterprises due to its effort to develop an initiation project of pinge tourism village, a village that is located in tabanan regency. such csr award stimulates itdc to develops some tourism villages in the northern part of bali in 2018.82 a few years ago, tourism industries that are located in gianyar regency provided a medical check for the eye as well as surgery for cataract.83 moving to the southern part of bali, melia hotel, one of hotels located in nusa dua, did its csr programme by celebrating universal children day.84 in an interview with ni ketut supasti dharmawan, she expressed her joy at seeing how well tourism industries have committed to implementing the csr programme.85 her words are affirmed by the practice of bali safari and marine park which did the programme of csr by playing a role for public health. 2.1.2. case study of australia both the australian government and corporations involved in making progress of csr. in last decade, some government initiatives on csr can be seen in prime minister’s business community partnership awards, australian government corporations and markets advisory committee, parliamentary joint committee on corporations and financial services and related reports commissioned by department of family and department of the environment and heritage.86 the progress made 79 viddi dandi yanta, “implementasi corporate social responsibility (csr) pada perseroan terbatas yang bergerak dalam bidang pariwisata di bali” (thesis, magister of notary, gadjah mada university, 2009). 80 see dik roth and gede sedana “reframing tri hita karana: from ‘balinese culture’ to politics”, the asia pacific journal of anthropology 16, no. 2(2015) 157-175, doi: 10.1080/14442213.2014.994674 81 “tri hita karana csr awards bagi perusahaan yang melakukan tanggung jawab sosial,” kabar dewata, november 27, http://kabardewata.com/berita/berita-utama/sosial/tri-hita-karana-csr-awardsbagi-perusahaan.html#.wxvkhzsfndg2017. 82 ema sukarelawanto,“itdc raih super platinum & csr tri hita karana award 2017,” kabar 24-bisnis.com, november 26, 2017, http://kabar24.bisnis.com/read/20171126/78/712684/itdc-raihsuper-platinum-csr-tri-hita-karana-award-2017 83 bali safari and marine park, safari peduli pemeriksaan mata dan operasi katarak untuk lansia bersama john fawcett foundation<http://www.balisafarimarinepark.com/news/1395/safari_peduli_pemeriksaan_mata_dan_operasi_katarak_untuk_lansia_bersama_john_fawcett_foundation_.html> 84 csr bali, universal children day celebration at melia bali indonesia. <http://www.csrbali.com/ universal-children-day-celebration-at-melia-bali-indonesia.htm> 85 ni ketut supasti dharmawan, “csr in tourism industries, ” interview by authors, faculty of law, udayana university, denpasar, december 7, 2015. 86 rachael a. truscott, op.cit, 2857. by the government was hand in hand with business sectors initiatives. structure of companies have accommodatedcsr positions, departments and committees besides seeking expert advice on csr strategy development from niche csr consultancies. in addition, conferences and events have regularly convened in australia discussing thematic issues and involving the wide range of interested actors.87 2.1.2. 1. australian corporation the corporations act 2001 (cth) in section 181(1) subsection a states a director (or another officer) of a corporation must “exercise their powers and discharge their duties”88 while acting in good faith and in the best interest of the corporation. subsection (b) states the director must act in relation to a proper purpose. this provides several issues; the interpretation of ’good faith’ and ‘proper purposes’ and the lack of inclusion for the best interests of the community. the act does not define these specific terms89; additionally, the acts interpretation act 1901 (cth) also does not provide for these terms.90 it is then adequate to use the natural meaning of the word (or phrase); the term good faith is defined as the “honesty of purpose or sincerity of declaration”.91 in interpreting this it is it is important to consider the purpose of the corporations act 2001 (cth); this being that the act is not limiting the operation of state or territory law and is intended to impose additional obligations, liabilities and powers on organisations.92 therefore, it is adequate to assume the act is suggesting in section 181 that an organisation is required to perform its business obligations in an honest and sincerer manner. the act fails to specifically mention the need to act in the best interests of the local communities (or environment). subsection (b) referring to the director of an organisation acting for ‘proper purposes’ is also a section that can be misinterpreted. this is quite an open phrase, giving organisations a wide scope while acting within the law. 2.1.2.2. csr in tourism in australia since the 1990’s australia has implemented a certification program to achieve improvement of standards in the tourism industry. this is offered through the nature and ecotourism accreditation program (neap) which provides voluntary accreditation for organisations. this program is offered by a non-government organisation (ngo) in conjunction with the australian tourism operations network.93 87 ibid. 88 corporations act 2001 s181. 89 corporations act 2001 (cth) s9. 90 acts interpretation act 1901 (cth) part 2. 91 macquarie online dictionary (2015) <www.macquariedictionary.com.au>. 92 corporations act 2001 (cth) s5e. 93 rachel dodds and marion joppe, csr in the tourism industry? the status of and potential for certification, codes of conduct and guidelines (2005), 50. corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna udayana journal of law and culture vol. 02 no.2, july 2018 181 the focus is on social, community and environmental benefits while also incorporating human rights and labour benefits. the program is currently funded by involved companies with incentives for businesses involving cost saving and the marketing sectors.94 random audit checks are carried out by an accredited agency; well-defined criteria is set out along with the use of third-party auditors to provide reliable accreditation.95 the purpose of providing certification for companies is to assure customers and the tourism industry that the company has achieved a minimum set of standards; additionally, this also provides benefits to the local community and environment.96 as the use of certification grows competing organisations will find themselves in a position requiring them to also meet these base guidelines to become effectively competitive. 2.1.2.3. current practices unlike practices in indonesia, where csr is an obligation burdened to companies, australia has different takes on how should csr be implemented. csr can also be seen as an emerging industry seeking legitimacy and relying on reputation in order to grow and survive.97 in a report issued by the business events australia, tourism australia in november 2010 it was reported that since the previous audit in 2008 participation was rising. in 2010 it was reported that 36% of organisations (of 347 surveyed) hold at least 1 accreditation for social or environmental responses to csr. this figure in 2008 was reported as 31%, showing an increase of 5%.98 australian convention and exhibition centres audited reported a 75% accreditation rate; the travel industry reported a 56% accreditation rate with the accommodation organisations reporting at 47%. both the types of organisations have seen an improvement with the 2008 report finding 46% of transport organisations hold an accreditation and 39% of accommodation organisations.99 australia has made great progress over the last few decades with the growth of organisations voluntarily becoming certified under the neap. the formation of the accsr has brought csr to the forefront in many business sectors. the tourism industry is one of many that have now started considering the impacts day to day operations have on local communities in regards to social, economic and environmental factors. regardless of this improvement without clarification within legislation, the 94 ibid., 16. 95 ibid., 17. 96 ibid. 97 rachael a.truscott,op cit, 2858. 98 leo jago and margaret deery, “state of the business events industry 2010,” report of business events cuncil of australia (september 2011): 6. 99 ibid., 8. 182 issue of csr will possibly reach a standstill in development. amending relevant legislation will provide all businesses in the tourism industry with a minimum baseline to work from and will ensure the protection of social, economic and environmental factors in the local communities. the continued use of voluntary certification under neap and assistance provided by accsr will assist regulate csr while the introduction of csr into legislation with protecting the human rights of the local communities. additional to the inclusion of csr into legislation is the need to allocate the power to monitor the implementation of csr; the decision to form a new agency dedicated to ensuring organisations fulfil their legislative requirements is the most likely option. 2.2. does csr in tourism strengthen the local communities? 2.2.1. the concern of international community: the role of unwto to promote csr in tourism sector international society has an awareness that global tourism should pay an attention to the host communities of the tourism industry. the united nations world tourism organization (unwto) has established a global code of ethics for tourism that guides “local populations should be associated with tourism activities and share equitably in the economic, social and cultural benefits they generate...”100 in addition, this code emphasizes that “tourism policies should be applied in such a way as to help to raise the standard of living of the populations of the regions visited and meet their needs”101. the unwto also created some initiatives in addressing the negative impacts of business through a voluntary commitment to csr. in 2011 the unwto secretariat started a campaign geared towards the private sector by inviting tourism enterprises and their trade associations to adhere to the private sector commitment to the global code of ethics for tourism.102 in signing the commitment, companies pledge to uphold, promote and implement the values of responsible and sustainable tourism development championed by the code. a special focus on social, cultural and economic matters is one of the main objectives of the commitment, which draws particular attention to issues such as human rights, social inclusion, gender equality, accessibility, and the protection of vulnerable groups and host communities. as of april 2018, 553 companies and associations from around the world have signed the private sector commitment to the code of ethics.103 100 global code of ethics for tourism, art. 5 (1). 101 ibid, art. 5 (2). 102 united nations world tourism organization, “corporate social responsibility initiatives,”http:// ethics.unwto.org/content/corporate-social-responsibility-initiatives 103 “united nations world tourism organization, “private sector commitment to the unwto global code of ethics for tourism,”http://ethics.unwto.org/content/private-sector-commitment-unwto-globalcode-ethics-tourism corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna udayana journal of law and culture vol. 02 no.2, july 2018 183 2.2.2. case study of indonesia local community is acknowledged in indonesia along with their traditional customary rights as long as it is in accordance with the societal development and the principles of the republic of indonesia.104 it is further affirmed in article 28i (3) which stipulates, “the cultural identities and rights of traditional communities shall be respected in accordance with the development of times and civilisations”. in the laws of csr, though not generally ruled, local communities’ rights are ensured in the article 11 (3) (p) of the act no. 22 year 2001 concerning oil and natural gas which in essence stipulates that companies in their joint contracts need to include the assurance of the development of communities especially local communities. in addition to that ruling, local government of badung, bali, through regulation of head of badung regency no. 6 of 2011 concerning csr, particularly article 11, stipulates that one of the forms of csr is communities empowerment. even though this regulation does not specifically state local communities it is reasonable to include or the right of local communities is implied within the abovementioned ruling. 2.2.3. case study of australia the australian human rights commission is invested in the use of csr by corporations to ensure individuals’ basic human rights are not violated. local communities should be extended the right to enjoy life without being influenced by large organisations. companies often fail to connect the importance of private decisions on public welfare.105 the ‘triple bottom line’ approach incorporates economic, social and environmental implications into the one concept. it is important for company directors to understand that the importance of societies values and interests must be given importance over those of their own.106 each of these approaches is relevant in the use of csr and human rights; this is evident in labour rights and the expectation of organisations to pay fair wages to employees; human rights and the right to non-discrimination and the human rights to have access to clean drinking water.107 these examples illustrate how fundamental human rights as expressed in the commonwealth of australian constitution act 1901 (cth) and australian human rights commission act 1986 are incorporated into the implementation of csr. organisations neglecting to operate business practices with regards to csr policies are likely to impede on the basic human rights of australian citizens. quality of life 104 the 1945 constitution of the republic of indonesia, art.18b (2). 105 howard r. bowen, jean-pascal gond, peter geoffrey bowen, social responsibilities of the businessman (university of iowa press, 2013). 4. 106 ibid. 107 human rights commission, corporate social responsibility and human rights (2008) <www. humanrights.gov.au>. 184 and satisfaction of life is likely to decline as a result of companies failing to implement csr policies. tourism industries, as in the last chapter, have done several notable csr programmes. however, when it comes to the implementation to the local communities it needs more than just a financial support, as most companies in indonesia think these days. this does not say that financial support is not needed. in an interview with the accounting manager and human resource manager of puri dalem hotel, csr is not implemented just to gain existence as most tourism industries would normally do. they do not even know what csr is but they have done notable social programmes. one of the programmes they most proud of is managing the human resources of local communities in east sanur.108 there is no clear definition of managing the human resources, however as practices shown what it does to the human resources is to have them go through a process which consists of planning, organising, leading and controlling.109 3. conclusion and recommendation 3.1. conclusion corporate social responsibility (csr) has been very well regulated under the law and regulation in both indonesia and australia. in indonesia, the concept of csr has been transformed into norms as stipulated in limited liability act, investment act, and some regulations issued by central and local governments while in australia the csr has basically been incorporated into corporation act, and to some extent, commonwealth of australian constitution act and australian human rights commission act. the main differences are that indonesia as the developing country still needs to apply the concept of csr mandatorily through obligation owed in written laws and regulations. on the other hand, australian relies solely on the commitment of the companies to contribute to the development of their surroundings. with regard to the implementation by tourism industries, both countries seem to do well in implementing this concept. with a gradually increasing number of tourism industries take part in realising the sustainable development, the well-being of local communities surrounding the field of the company will surely be improved. its implementation to local communities should never be away from the basic concept of sustainable development. people, profit and planet should be kept in balance, otherwise, it could have a bad impact not only to the business but also to the local communities, the communities surrounding them as well as the environment. gaining just an image is not encouraged in sustainable development as companies are needed to show their commitment to applying the csr programme not just financially but also in developing the human resources. 108 artayasa, wayan, “csr: implementation,” interview by authors, puri dalem hotel, sanur. december 8, 2015. 109 i gusti ngurah gorda, manajemen sumber daya manusia (astabrata bali in cooperation with stie satya dharma, 2004), 12. corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna udayana journal of law and culture vol. 02 no.2, july 2018 185 3.2. recomendation local communities that receive csr should prioritize the csr fund to be used to fulfil the basic needs of the community. in the context of csr fund awarded by tourism corporations, local communities should allocate it to cover the cost of empowering the human resources. such empowerment would enable local communities to ameliorate their economic resources related to tourism industry. tourism companies should identify the needs and the potency of local communities in their vicinity. the identification should be used as a basis to create sustainable programs that ensure the greater benefit to the community. in addition, they must establish means to indicate the achievement of their social programs. the government, both national and local levels, needs to step in and socialise csr broadly and make sure that every tourism industry knows this programme really well. it is the responsibility of government to ensure that all stakeholders in the tourism industry will play a pivotal role to advance the csr. 186 bibliography book bowen, howard r., jean-pascal gond, and peter geoffrey bowen, social responsibilities of the businessman. university of iowa press, 2013. dharmayuda, i made suasthawa, desa adat kesatuan masyarakat hukum adat di propinsi bali. upada sastra denpasar, 2001. gorda, i gusti ngurah, manajemen sumber daya manusia. astabrata bali in cooperation with stie satya dharma, 2004. idowa, samuel o., abubaker s. kasum, and asli yuksel mermod, people, planet and profit: socio-economic perspectives of csr. ashgate publishing ltd, 2014. chapter in an edited book astiti, tjok istri putra, and i ketut sudantra, “reflecting on tourism activities in bali: a discourse on communal rights, culture and hindu values,” in sustainable tourism and law, edited by michael g. faure, ni ketut supasti dharmawan and i made budi arsika (den haag: eleven international publishing, 2014). journal article andrini, laurensia. “mandatory corporate social responsibility in indonesia.” mimbar hukum-fakultas hukum universitas gadjah mada 28, no. 3 (2016): 512-525. argandoña, antonio. “corporate social responsibility in the tourism industry: some lessons from the spanish experience”. iese business school working paper no. 844. (2010). http://dx.doi.org/10.2139/ssrn.1593592. bevan, emma am, and ping yung. “implementation of corporate social responsibility in australian construction smes.” engineering, construction and architectural management 22, no. 3 (2015): 295-311. https://doi.org/10.1108/ecam-05 -2014-0071 del baldo, mara. “sustainability and csr orientation through “edutainment” in tourism.” international journal of corporate social responsibility 3, no. 5 (2018): 1-14. https://doi.org/10.1186/s40991-018-0027-2 corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna udayana journal of law and culture vol. 02 no.2, july 2018 187 greenberg, david. “making corporate social responsibility an everyday part of the business of business: offering realistic options for regulatory reform.” bond l. rev 19, no. 2 (2007). hamid, md. abdul. 2010, “csr in tourism”, ssrn (2010). http://dx.doi. org/10.2139/ssrn.1684185 hughes, emma and regina scheyvens. “corporate social responsibility in tourism post-2015: a development first approach.” tourism geographies 18 no.5 (2016): 469-482. https://doi.org/10.1080/14616688.2016.1208678 indrawati, anak agung sri, ni ketut supasti dharmawan, and ida ayu sukihana. “implementasi konsep csr (corporate social responsibility) pada perusahaan industri pariwisata di bali.” kertha patrika 37, no. 2 (2012). kasim, azilah. “the need for business environmental and social responsibility in the tourism industry.” international journal of hospitality & tourism administration 7, no. 1 (2006): 1-22. https://doi.org/10.1300/j149v07n01_01 martinez, patricia, andrea pérez, and ignacio rodríguez del bosque. “measuring corporate social responsibility in tourism: development and validation of an efficient measurement scale in the hospitality industry.”journal of travel & tourism marketing 30, no.4 (2013): 365-385. https://doi.org/10.1080/1 0548408.2013.784154 nguyen, minh, jo bensemann, and stephen kelly. “corporate social responsibility (csr) in vietnam: a conceptual framework.” international journal of corporate social responsibility 3, no. 9 (2018): 1-12. https://doi.org/10.1186/s40991018-0032-5 roth, dik, and gede sedana. “reframing tri hita karana: from ‘balinese culture’ to politics.” the asia pacific journal of anthropology 16, no. 2 (2015): 157175. https://doi.org/10.1080/14442213.2014.994674 safa’at, muchamad ali. “corporate social responsibility: a constitutional perspective,” jurnal konstitusi 11, no. 1 (2014): 1-17. triari, putri, kali jones, and ni gusti ayu dyah satyawati. “indigenous people, economic development and sustainable tourism: a comparative analysis between bali, indonesia and australia”. udayana journal of law and culture 1 no. 1 (2017): 16-30. https://doi.org/10.24843/ujlc.2017.v01.i01.p02 tribe, john. “the concept of tourism: framing a wide tourism world and broad tourism society.” tourism recreation research 24, no. 2 (1999): 75-81. https://doi.org/10.1080/02508281.1999.11014879 thesis yanta, viddi dandi, “implementasi corporate social responsibility (csr) pada perseroan terbatas yang bergerak dalam bidang pariwisata di bali.” thesis, magister of notary programme, gadjah mada university, 2009. proceeding truscott, rachael a. (2007) “corporate social responsibility in australia: constructing reputation”. proceedings 2007 australia and new zealand marketing academy conference (anzmac), dunedin, new zealand. legal documents australia, acts interpretation act 1901 (cth) australia, corporations act 2001 (cth) indonesia, the 1945 constitution of the republic of indonesia. indonesia, act of republic of indonesia no. 25 year 2007 concerning investment indonesia, act of republic of indonesia no. 40 year 2007 concerning limited liability company indonesia, government regulation of republic of indonesia no. 47 year 2012 concerning social and environmental responsibility of limited liability company indonesia, regulation of head of badung regency no. 6 year 2013 concerning corporate social responsibility united nations world tourism organization, the global code of ethics for tourism interview artayasa, wayan. “csr: implementation” interview by authors. puri dalem hotel, sanur. december 8, 2015. dharmawan, ni ketut supasti. “csr in tourism industries.” interview by authors, faculty of law, udayana university, denpasar, december 7, 2015. corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna 188 greenberg, david. “making corporate social responsibility an everyday part of the business of business: offering realistic options for regulatory reform.” bond l. rev 19, no. 2 (2007). hamid, md. abdul. 2010, “csr in tourism”, ssrn (2010). http://dx.doi. org/10.2139/ssrn.1684185 hughes, emma and regina scheyvens. “corporate social responsibility in tourism post-2015: a development first approach.” tourism geographies 18 no.5 (2016): 469-482. https://doi.org/10.1080/14616688.2016.1208678 indrawati, anak agung sri, ni ketut supasti dharmawan, and ida ayu sukihana. “implementasi konsep csr (corporate social responsibility) pada perusahaan industri pariwisata di bali.” kertha patrika 37, no. 2 (2012). kasim, azilah. “the need for business environmental and social responsibility in the tourism industry.” international journal of hospitality & tourism administration 7, no. 1 (2006): 1-22. https://doi.org/10.1300/j149v07n01_01 martinez, patricia, andrea pérez, and ignacio rodríguez del bosque. “measuring corporate social responsibility in tourism: development and validation of an efficient measurement scale in the hospitality industry.”journal of travel & tourism marketing 30, no.4 (2013): 365-385. https://doi.org/10.1080/1 0548408.2013.784154 nguyen, minh, jo bensemann, and stephen kelly. “corporate social responsibility (csr) in vietnam: a conceptual framework.” international journal of corporate social responsibility 3, no. 9 (2018): 1-12. https://doi.org/10.1186/s40991018-0032-5 roth, dik, and gede sedana. “reframing tri hita karana: from ‘balinese culture’ to politics.” the asia pacific journal of anthropology 16, no. 2 (2015): 157175. https://doi.org/10.1080/14442213.2014.994674 safa’at, muchamad ali. “corporate social responsibility: a constitutional perspective,” jurnal konstitusi 11, no. 1 (2014): 1-17. triari, putri, kali jones, and ni gusti ayu dyah satyawati. “indigenous people, economic development and sustainable tourism: a comparative analysis between bali, indonesia and australia”. udayana journal of law and culture 1 no. 1 (2017): 16-30. https://doi.org/10.24843/ujlc.2017.v01.i01.p02 tribe, john. “the concept of tourism: framing a wide tourism world and broad tourism society.” tourism recreation research 24, no. 2 (1999): 75-81. https://doi.org/10.1080/02508281.1999.11014879 thesis yanta, viddi dandi, “implementasi corporate social responsibility (csr) pada perseroan terbatas yang bergerak dalam bidang pariwisata di bali.” thesis, magister of notary programme, gadjah mada university, 2009. proceeding truscott, rachael a. (2007) “corporate social responsibility in australia: constructing reputation”. proceedings 2007 australia and new zealand marketing academy conference (anzmac), dunedin, new zealand. legal documents australia, acts interpretation act 1901 (cth) australia, corporations act 2001 (cth) indonesia, the 1945 constitution of the republic of indonesia. indonesia, act of republic of indonesia no. 25 year 2007 concerning investment indonesia, act of republic of indonesia no. 40 year 2007 concerning limited liability company indonesia, government regulation of republic of indonesia no. 47 year 2012 concerning social and environmental responsibility of limited liability company indonesia, regulation of head of badung regency no. 6 year 2013 concerning corporate social responsibility united nations world tourism organization, the global code of ethics for tourism interview artayasa, wayan. “csr: implementation” interview by authors. puri dalem hotel, sanur. december 8, 2015. dharmawan, ni ketut supasti. “csr in tourism industries.” interview by authors, faculty of law, udayana university, denpasar, december 7, 2015. corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna udayana journal of law and culture vol. 02 no.2, july 2018 189 case law decision of constitutional court of the republic of indonesia no. 53/puuvi/2008. decision of the supreme court of the republic of indonesia no. 148/pid.sus/2013/ pn.tipikor.smg website content metro bali. “safari peduli pemeriksaan mata dan operasi katarak untuk lansia bersama john fawcett foundation,” december 12, 2013. http://metrobali. com/safari-peduli-pecahkan-rekor-operasi-katarak-untuk-500-lansia/ black, leeora d. what we do, australian centre for corporate social responsibility, www.accsr.com.au csr bali, universal children day celebration at melia bali indonesia. december 3, 2014. http://www.csrbali.com/universal-children-day-celebration-at-meliabali-indonesia.htm . elkington, john, “enter the triple bottom linehttp://www.johnelkington.com/ archive/tbl-elkington-chapter.pdf ema sukarelawanto, “itdc raih super platinum & csr tri hita karana award 2017,” november 26, 2017. http://kabar24.bisnis.com/read/20171126/78/712684/ itdc-raih-super-platinum-csr-tri-hita-karana-award-2017 human rights commission, “corporate social responsibility and human rights (2008).” https://www.humanrights.gov.au/publications/corporate-socialresponsibility-human-rights international organisation for standardisation, “iso 26000 guidance of social responsibility (2010)”, http://www.iso.org/iso/home/standards/iso26000. htm jago, leo, and margaret deery. “state of the business events industry 2010,” report of business events council of australia, september 2011. http://www. businesseventscouncil.org.au/files/state_of_the_business_events_industry_ report_2010.pdf 190 kabar dewata. tri hita karana csr awards bagi perusahaan yang melakukan tanggung jawab sosial”. november 27, 2017. http://kabardewata.com/berita/ berita-utama/sosial/tri-hita-karana-csr-awards-bagi-perusahaan.html#.wxvkhzsfndg2017. liputan 6.com, “ini dia 10 destinasi wisata yang disebut bali baru”. february 27, 2016. https://www.liputan6.com/lifestyle/read/2445931/ini-dia-10-destinasiwisata-yang-disebut-bali-baru macquarie dictionary online. https://www.macquariedictionary.com.au small business nsw commissioner, what is csr?, 2014. www.toolkit.smallbiz. nsw.gov.au the office of the un high commissioner for human rights, guiding principles on business and human rights implementing the united nations “protect, respect and remedy” framework, united nations, 2011.https://www.ohchr. org/documents/publications/guidingprinciplesbusinesshr_en.pdf tourism australia, www.tourism-australia.com united nations world tourism organization, “corporate social responsibility initiatives. http://ethics.unwto.org/content/corporate-social-responsibility-initiatives united nations world tourism organization, “private sector commitment to the unwto global code of ethics for tourism. http://ethics.unwto.org/content/ private-sector-commitment-unwto-global-code-ethics-tourism corporate social responsibility and its implementation in tourism industry: a comparative study between indonesia and australia anak agung bagus ngurah agung surya putra, renee sarah white, and kadek sarna 220 proper, weighty and extremely weighty cause to end an employment contract in finland emma-lotta mäkeläinen, sofia toivonen, and tiina räsänen climate change and human migration: towards more humane interpretation of refugee i gede eka sarjana* faculty of law, the university of sidney, nsw, australia: and eco-region development management center for bali and nusa tenggara, ministry of environment and forestry of the republic of indonesia 1. introduction 1.1. background despite the controversies surrounding the uncertain scientific aspects of climate change in the political arena, climate change and its adverse effects are likely to have appalling consequences for human life if humans do not make significant efforts to deal with this global phenomenon. not surprisingly, a variety of catastrophic events such as tropical storm surges, sea level rise, biodiversity loss, floods and droughts are bearing down upon us. abstract this article seeks to highlight the existing 1951 convention relating to the status of refugees (hereinafter referred to as refugee convention) and the possibilities of the document to encompass climate-induced migration by modifying, reconstructing and establishing a specific legal regime, considering that the concept of internally displaced persons (idps) has been inadequate and incapable to incorporate the ‘newly introduced’ type of migrant. the definition of refugee in the convention explicitly limits the scope of people who are forced to flee their home into migrants due to warfare and civil disturbance. in fact, there are people who can no longer gain decent livelihood due to environmental and social problems including poverty, drought, soil erosion, desertification, deforestation, floods and other environmental deterioration. however, these people have not been legally accepted as ‘refugee’ in the international arena. the author argues that ‘environmental refugee’ or ‘climate refugee’ is a clear and present issue, as climate change-related disasters are rampant and deteriorating. therefore, this article will examine the existing and potential role of international law in effectively responding to climate change and its related humanitarian problems in the future. the development of a specific legal document on environmental refugee and the global acceptance of the status of the people not only represent a short-term solution for the affected people, but also introduce a long-term commitment of international community to alleviate poverty and guarantee the fulfilment of basic human rights and social justice for everyone. this article primarily investigates relevant legal documents and discovers some legal and non-legal concepts that are connected to the central topic of this article. keywords: climate change; refugee; displacement; migration. how to cite (chicago-16th): sarjana, i gede eka. “climate change and human migration: towards more humane interpretation of refugee.” udayana journal of law and culture 2, no. 2 (2018): 220-248. https://doi.org/110.24843/ujlc.2018.v02.i02.p05 doi: https://doi.org/10.24843/ujlc.2018.v02.i02.p05 vol. 02 no. 2, july 2018, 220 248 1 * e-mail/corresponding author: ekasarjana12@gmail.com udayana journal of law and culture vol. 02 no.2, july 2018 221 within a national territory, in which case people are known as ‘internally displaced persons’ (hereinafter referred to as idps), or beyond national borders, where they are considered ‘migrants’ or ‘refugees’. according to the united nations high commissioner for refugees (hereinafter referred to as unhcr), natural and man-made disasters have forced millions of people to relocate every year since 2008.7 the international organization of migration has made a similar prediction: that within a few more decades approximately 200 million people will have to flee their home due to environmental matters.8 in the environmental context, a variety of terms have been used to define people who migrate to other countries due to unliveable environmental conditions.9 one term frequently used in the media or informally accepted among international community is ‘environmental refugees’ or ‘climate refugees’. this term is used to clarify the link between the adverse effects of climate change and human displacement.10 regardless of the ongoing controversy on the terminology, in this article, the term ‘climate refugees’11 is used to refer to those who are forced to leave their home as a result of environmental degradation, within and outside their country. considering several cases on the application to seek environmental refugee status, this article argues that the existing approaches to and views on ‘climate refugees’ or ‘environmental refugees’ 12 have been too narrow and unfair, compared to the views on the refugee convention. moreover, the existing refugee convention has been, to some extent, disadvantageous and rigid, causing serious impediment in its implementation to the current development of human displacement. 7 unhcr, ‘unhcr pledges to better protect and assist people displaced by disaster’ (2016)<http:// www.unhcr.org/news/latest/2016/5/574843f34/unhcr-pledges-better-protect-assist-people-displaceddisaster.html> 8 international organization for migration, ‘migration, environment and climate change: assessing the evidence’, (2009)<http://publications.iom.int/system/files/pdf/migration_and_environment.pdf> 9 olivia dun and francois gemenne, “defining ‘environmental migration,” forced migration review 31 (2008): 10-11. http://ro.uow.edu.au/cgi/viewcontent.cgi?article=2406&context=sspapers 10 see antonio guterres, ‘climate change, natural disasters and human displacement: a unhcr perspective’, (2008) <http://www.unhcr.org/4901e81a4.pdf> 11 the term has long been used and accepted by scholars in many international journals and documents. for example, see richard black, “environmental refugees: myth or reality?”, unhcr working papers 34 (2001); see also norman myers, “environmental refugees in a globally warmed world,” bio science 43, no. 11 (1993): 752-761. doi: 10.2307/1312319; see also norman myers, “environmental refugees: an emergent security issue”, a paper presented at the economic forum (may 2005) https://www.osce.org/ eea/14851?download=true ; see also essam el hinnawi, “environmental refugees”, unep (1985); see also david keane, “the environmental causes and consequences of migration: a search for the meaning of ‘environmental refugees’,” georgetown international environmental law review 16 (2004). 12 although the use of the term ‘climate/environmental refugees’ has been considered a legal mistake by some scholars, because it is not in accordance with the definition of refugee set out in the 1951 refugee convention, for the purpose of this article, the terms ‘environmental migrants’, ‘climate refugees’, or ‘environmental refugees’ will be used interchangeably to classify people who should and would potentially leave their place of origins due to the insistence of the environment, especially climate change. climate change and human migration: towards more humane interpretation of refugee i gede eka sarjana the international community has witnessed the horrendous and widespread impacts of climate change, both on the environment and on humans.1 however, global concern has, to date, focused on how to mitigate and prevent further devastating impacts, with less concern about the people who are seriously affected by these calamities. people have lost their homes, properties and families due to enormous typhoons in many countries. they have lost their access to food and clean water due to extreme weather.2 however, it is highly challenging to establish scientific evidence that climate change is the trigger of, and is strongly manipulating, the decision of people to migrate. this is due to the fact that the roles of contributing factors, such as economic hardship, political strife, poverty, unemployment and armed conflict are mingled and difficult to disentangle.3 consequently, environmental factors cannot be clearly identified and isolated from the others.4 human displacement or migration is not a new phenomenon in human history.5 people move from one place to the other due to a wide variety of reasons, including natural and environmental disasters. the history of human movement caused by natural disasters, such as volcanic eruptions and earthquakes, for example, started hundreds of years ago as a common effort to survive disaster.6 regardless the legal definition stipulated in the refugee convention, practically, the movement can be 1 see ben boer and alan boyle, “human rights and the environment.” background paper for the 13th informal asem seminar on human rights, sydney law school research paper, no. 14/14. (2014): 1-88. http://dx.doi.org/10.2139/ssrn.2393753; see also united nations environment programme, ‘climate change and human rights. report (2015): 1-10; michael brzoska and christiane fröhlich, “climate change, migration and violent conflict: vulnerabilities, pathways and adaptation strategies,” migration and development 5, no.2 (2016): 190-210. https://doi.org/10.1080/21632324.2015.1022973; also the discussion on ‘climate change and atmospheric pollution’ in patricia birne, alan boyle, catherine ridgwell, ‘international law and the environment, (new york: oxford university press, 2009): 335-378; also walter kalin, ‘the climate change-displacement nexus’, (brookings, 2008); <http://www.brookings.edu/ research/speeches/2008/07/16-climate-change-kalin> 2 see unhcr, ‘unhcr backs increased protection for people fleeing disasters and climate change’ (2015)<http://www.unhcr.org/news/latest/2015/10/561e77f56/unhcr-backs-increased-protection-people-fleeing-disasters-climate-change.html> 3 see the discussion on ‘conceptualizing climate change-related movement’ in jane mcadam, climate change, forced migration, and international law (new york: oxford university press, 2012); see also vikram kolmannskog and lisetta trebbi, “climate change, natural disasters and displacement: a multitrack approach to filling the protection gaps.” international review of the red cross 92, no. 879 (2010): 713-730. https://doi.org/10.1017/s1816383110000500 4 jane mcadam, “swimming against the tide: why a climate change displacement treaty is not the answer,” international journal of refugee law 23, no. 1 (2011): 13-14. 5 vikram odedra kolmansskog, ‘future floods of refugees: a comment on climate change, conclict and forced migration’, (2008) norwegian refugee council<http://www.migrationdrc.org/publications/ resource_guides/migration_and_climate_change/future_floods_of_refugees.pdf> 6 alberto angulo morales, oscar alvarez gila, ‘disasters and migration in western early modern societies (17th-18th centuries)’, (2014) migracionesen 3 milenio.indd<http://www.academia.edu/6717913/ disasters_and_migration_in_western_early_modern_societies_17th-18th_centuries>; see also: carolina fritz, ‘climate change and migration: sorting through complex issues without the hype’, (2010)<http:// www.migrationpolicy.org/article/climate-change-and-migration-sorting-through-complex-issues-withouthype> 222 within a national territory, in which case people are known as ‘internally displaced persons’ (hereinafter referred to as idps), or beyond national borders, where they are considered ‘migrants’ or ‘refugees’. according to the united nations high commissioner for refugees (hereinafter referred to as unhcr), natural and man-made disasters have forced millions of people to relocate every year since 2008.7 the international organization of migration has made a similar prediction: that within a few more decades approximately 200 million people will have to flee their home due to environmental matters.8 in the environmental context, a variety of terms have been used to define people who migrate to other countries due to unliveable environmental conditions.9 one term frequently used in the media or informally accepted among international community is ‘environmental refugees’ or ‘climate refugees’. this term is used to clarify the link between the adverse effects of climate change and human displacement.10 regardless of the ongoing controversy on the terminology, in this article, the term ‘climate refugees’11 is used to refer to those who are forced to leave their home as a result of environmental degradation, within and outside their country. considering several cases on the application to seek environmental refugee status, this article argues that the existing approaches to and views on ‘climate refugees’ or ‘environmental refugees’ 12 have been too narrow and unfair, compared to the views on the refugee convention. moreover, the existing refugee convention has been, to some extent, disadvantageous and rigid, causing serious impediment in its implementation to the current development of human displacement. 7 unhcr, ‘unhcr pledges to better protect and assist people displaced by disaster’ (2016)<http:// www.unhcr.org/news/latest/2016/5/574843f34/unhcr-pledges-better-protect-assist-people-displaceddisaster.html> 8 international organization for migration, ‘migration, environment and climate change: assessing the evidence’, (2009)<http://publications.iom.int/system/files/pdf/migration_and_environment.pdf> 9 olivia dun and francois gemenne, “defining ‘environmental migration,” forced migration review 31 (2008): 10-11. http://ro.uow.edu.au/cgi/viewcontent.cgi?article=2406&context=sspapers 10 see antonio guterres, ‘climate change, natural disasters and human displacement: a unhcr perspective’, (2008) <http://www.unhcr.org/4901e81a4.pdf> 11 the term has long been used and accepted by scholars in many international journals and documents. for example, see richard black, “environmental refugees: myth or reality?”, unhcr working papers 34 (2001); see also norman myers, “environmental refugees in a globally warmed world,” bio science 43, no. 11 (1993): 752-761. doi: 10.2307/1312319; see also norman myers, “environmental refugees: an emergent security issue”, a paper presented at the economic forum (may 2005) https://www.osce.org/ eea/14851?download=true ; see also essam el hinnawi, “environmental refugees”, unep (1985); see also david keane, “the environmental causes and consequences of migration: a search for the meaning of ‘environmental refugees’,” georgetown international environmental law review 16 (2004). 12 although the use of the term ‘climate/environmental refugees’ has been considered a legal mistake by some scholars, because it is not in accordance with the definition of refugee set out in the 1951 refugee convention, for the purpose of this article, the terms ‘environmental migrants’, ‘climate refugees’, or ‘environmental refugees’ will be used interchangeably to classify people who should and would potentially leave their place of origins due to the insistence of the environment, especially climate change. climate change and human migration: towards more humane interpretation of refugee i gede eka sarjana the international community has witnessed the horrendous and widespread impacts of climate change, both on the environment and on humans.1 however, global concern has, to date, focused on how to mitigate and prevent further devastating impacts, with less concern about the people who are seriously affected by these calamities. people have lost their homes, properties and families due to enormous typhoons in many countries. they have lost their access to food and clean water due to extreme weather.2 however, it is highly challenging to establish scientific evidence that climate change is the trigger of, and is strongly manipulating, the decision of people to migrate. this is due to the fact that the roles of contributing factors, such as economic hardship, political strife, poverty, unemployment and armed conflict are mingled and difficult to disentangle.3 consequently, environmental factors cannot be clearly identified and isolated from the others.4 human displacement or migration is not a new phenomenon in human history.5 people move from one place to the other due to a wide variety of reasons, including natural and environmental disasters. the history of human movement caused by natural disasters, such as volcanic eruptions and earthquakes, for example, started hundreds of years ago as a common effort to survive disaster.6 regardless the legal definition stipulated in the refugee convention, practically, the movement can be 1 see ben boer and alan boyle, “human rights and the environment.” background paper for the 13th informal asem seminar on human rights, sydney law school research paper, no. 14/14. (2014): 1-88. http://dx.doi.org/10.2139/ssrn.2393753; see also united nations environment programme, ‘climate change and human rights. report (2015): 1-10; michael brzoska and christiane fröhlich, “climate change, migration and violent conflict: vulnerabilities, pathways and adaptation strategies,” migration and development 5, no.2 (2016): 190-210. https://doi.org/10.1080/21632324.2015.1022973; also the discussion on ‘climate change and atmospheric pollution’ in patricia birne, alan boyle, catherine ridgwell, ‘international law and the environment, (new york: oxford university press, 2009): 335-378; also walter kalin, ‘the climate change-displacement nexus’, (brookings, 2008); <http://www.brookings.edu/ research/speeches/2008/07/16-climate-change-kalin> 2 see unhcr, ‘unhcr backs increased protection for people fleeing disasters and climate change’ (2015)<http://www.unhcr.org/news/latest/2015/10/561e77f56/unhcr-backs-increased-protection-people-fleeing-disasters-climate-change.html> 3 see the discussion on ‘conceptualizing climate change-related movement’ in jane mcadam, climate change, forced migration, and international law (new york: oxford university press, 2012); see also vikram kolmannskog and lisetta trebbi, “climate change, natural disasters and displacement: a multitrack approach to filling the protection gaps.” international review of the red cross 92, no. 879 (2010): 713-730. https://doi.org/10.1017/s1816383110000500 4 jane mcadam, “swimming against the tide: why a climate change displacement treaty is not the answer,” international journal of refugee law 23, no. 1 (2011): 13-14. 5 vikram odedra kolmansskog, ‘future floods of refugees: a comment on climate change, conclict and forced migration’, (2008) norwegian refugee council<http://www.migrationdrc.org/publications/ resource_guides/migration_and_climate_change/future_floods_of_refugees.pdf> 6 alberto angulo morales, oscar alvarez gila, ‘disasters and migration in western early modern societies (17th-18th centuries)’, (2014) migracionesen 3 milenio.indd<http://www.academia.edu/6717913/ disasters_and_migration_in_western_early_modern_societies_17th-18th_centuries>; see also: carolina fritz, ‘climate change and migration: sorting through complex issues without the hype’, (2010)<http:// www.migrationpolicy.org/article/climate-change-and-migration-sorting-through-complex-issues-withouthype> udayana journal of law and culture vol. 02 no.2, july 2018 223 this article will proceed in the following order: (1) describing the introductory part that comprises background, purpose, method, and literature review; (2) explaining the result of research inquiries and the analysis. this section starts with an intertwining relationship between climate change and human movement. it also discusses various interpretation to classify environmental migrants as refugee by scrutinizing the meaning of persecution stipulated in the convention as well as incorporating humanitarian aspects. lastly, this article deconstructs the formulation of ‘refugee’ in order to highlight the link between climate changes and human migration. to do so, the perspectives from both developed and developing countries are compared in establishing an argument that strongly supports environmental migrants to obtain equal protection as currently enjoyed by traditional refugees. this article is concluded by reiterating and emphasizing that, although environmental refugees or climate refugees are not legally comprehended in the international legal framework, it is morally wrong for states and international organisations to leave them behind for a problem they did little or nothing to cause. 1.4. literature review it has been widely acknowledged that the issue of refugees has received major attention all over the globe.17 some studies were carried out to monitor the progress of international soft law on refugees. as an example, hansen reviews the progress of the comprehensive refugee response framework (crrf),18 a framework that is based on the united nations general assembly resolution, to be developed and initiated by unhcr for any situation involving large movements of refugees.19 another instance is the recent outlook on the establishment of a global compact on refugees,20 a non legally binding document that based on the new york declaration and builds upon crrf for predictable and equitable burden and responsibility sharing among un members.21 dallal stevens discusses the implications of state sovereignty over a generous, meaningful and humane approach to asylum by taking a look at the recent situation 17 see for example how media may play a vital role in determining public opinion on refugees crisis in esther greussing and hajo g. boomgaarden, “shifting the refugee narrative? an automated frame analysis of europe’s 2015 refugee crisis,” journal of ethnic and migration studies 43, no. 11 (2017): 1762-1764, http://dx.doi.org/10.1080/1369183x.2017.1282813 18 randall hansen, “the comprehensive refugee response framework: a commentary,” journal of refugee studies 31, no. 2(2018): 131, doi:10.1093/jrs/fey020 19 resolution, united nations general assembly, a/res/71/1 (2016), annex i, para 2. 20 meltem ineli-ciger, “will the global compact on refugees address the gap in international refugee law concerning burden sharing?” european journal of international law ( 2018),https://www.ejiltalk. org/will-the-global-compact-on-refugees-address-the-gap-in-international-refugee-law-concerning-burden-sharing/ 21 the global compact on refugees, the final draft (as at 26 june 2018), para 4. http://www.unhcr.org/5b3295167 climate change and human migration: towards more humane interpretation of refugee i gede eka sarjana although climate change has been considered as one of the biggest environmental problems of humankind, not many progresses were achieved over the last few decades on the status of the people affected by this global catastrophe. only a few scholars and international human rights bodies advocate the newly introduced term, ‘environmental refugees’ or ‘climate refugee’ to be accepted in the international legal document. the term was introduced by essam el-hinnawi (unep) in 1985, followed by other scholars including norman myers13, diane c. bates14, elizabeth burleson15, richard black 16 and others. 1.2. purpose this article explores the possibilities of climate-induced migrants to be considered as refugees under the international legal regime. it discusses the development of a more flexible human rights legal regime to encompass a wider range of displacement. in doing so, this paper examines the existing refugee convention in dealing with human displacement to determine whether the convention encompasses a wide range of human displacement. this article does not attempt to look at the fallacies and the weaknesses of the existing refugee convention, nor does it challenge the psychological and historical background behind the development of the document. rather, it aims to find an adequate space between the legal normative instrument and the reality, where decision makers could consider the necessity of being innovative in interpreting the law to prevent a legal vacum for the sake of humanity. in other words, dynamic interpretation of the existing instruments should be implemented to provide protection for the affected people, including the implementation of relevant international legal principles to ensure that the rights of the affected people are fully protected. 1.3. method this writing reflects a legal research that primarily investigates relevant legal documents and discovers some legal and non-legal concepts that are connected to the central topic of this article. the analysis is established by contending legal principles and norms as stipulated in international legal instruments as well as facts, concepts, and theories as provided in reports, textbooks, scientific journal and reviews. in particular, provisions contained in some legal instruments are interpreted beyond the creator’s intention but are construed in a dynamic means by taking into consideration the current context and the development of international community’s common sense. 13 norman myers, ‘environmental refugees,” population and environment 19, no.2 (1997): 167-182. https://doi.org/10.1023/a:1024623431924 14 diane c. bates, “environmental refugees? classifying human migrations caused by environmental change,” population and environment 23, no. 5 (2002): 465-477. 15 elizabeth burleson, ‘climate change displacement to refuge,’ journal of environmental law and litigation 25, no. 19 (2010): 19-36. 16 richard black, op.cit. 224 this article will proceed in the following order: (1) describing the introductory part that comprises background, purpose, method, and literature review; (2) explaining the result of research inquiries and the analysis. this section starts with an intertwining relationship between climate change and human movement. it also discusses various interpretation to classify environmental migrants as refugee by scrutinizing the meaning of persecution stipulated in the convention as well as incorporating humanitarian aspects. lastly, this article deconstructs the formulation of ‘refugee’ in order to highlight the link between climate changes and human migration. to do so, the perspectives from both developed and developing countries are compared in establishing an argument that strongly supports environmental migrants to obtain equal protection as currently enjoyed by traditional refugees. this article is concluded by reiterating and emphasizing that, although environmental refugees or climate refugees are not legally comprehended in the international legal framework, it is morally wrong for states and international organisations to leave them behind for a problem they did little or nothing to cause. 1.4. literature review it has been widely acknowledged that the issue of refugees has received major attention all over the globe.17 some studies were carried out to monitor the progress of international soft law on refugees. as an example, hansen reviews the progress of the comprehensive refugee response framework (crrf),18 a framework that is based on the united nations general assembly resolution, to be developed and initiated by unhcr for any situation involving large movements of refugees.19 another instance is the recent outlook on the establishment of a global compact on refugees,20 a non legally binding document that based on the new york declaration and builds upon crrf for predictable and equitable burden and responsibility sharing among un members.21 dallal stevens discusses the implications of state sovereignty over a generous, meaningful and humane approach to asylum by taking a look at the recent situation 17 see for example how media may play a vital role in determining public opinion on refugees crisis in esther greussing and hajo g. boomgaarden, “shifting the refugee narrative? an automated frame analysis of europe’s 2015 refugee crisis,” journal of ethnic and migration studies 43, no. 11 (2017): 1762-1764, http://dx.doi.org/10.1080/1369183x.2017.1282813 18 randall hansen, “the comprehensive refugee response framework: a commentary,” journal of refugee studies 31, no. 2(2018): 131, doi:10.1093/jrs/fey020 19 resolution, united nations general assembly, a/res/71/1 (2016), annex i, para 2. 20 meltem ineli-ciger, “will the global compact on refugees address the gap in international refugee law concerning burden sharing?” european journal of international law ( 2018),https://www.ejiltalk. org/will-the-global-compact-on-refugees-address-the-gap-in-international-refugee-law-concerning-burden-sharing/ 21 the global compact on refugees, the final draft (as at 26 june 2018), para 4. http://www.unhcr.org/5b3295167 climate change and human migration: towards more humane interpretation of refugee i gede eka sarjana although climate change has been considered as one of the biggest environmental problems of humankind, not many progresses were achieved over the last few decades on the status of the people affected by this global catastrophe. only a few scholars and international human rights bodies advocate the newly introduced term, ‘environmental refugees’ or ‘climate refugee’ to be accepted in the international legal document. the term was introduced by essam el-hinnawi (unep) in 1985, followed by other scholars including norman myers13, diane c. bates14, elizabeth burleson15, richard black 16 and others. 1.2. purpose this article explores the possibilities of climate-induced migrants to be considered as refugees under the international legal regime. it discusses the development of a more flexible human rights legal regime to encompass a wider range of displacement. in doing so, this paper examines the existing refugee convention in dealing with human displacement to determine whether the convention encompasses a wide range of human displacement. this article does not attempt to look at the fallacies and the weaknesses of the existing refugee convention, nor does it challenge the psychological and historical background behind the development of the document. rather, it aims to find an adequate space between the legal normative instrument and the reality, where decision makers could consider the necessity of being innovative in interpreting the law to prevent a legal vacum for the sake of humanity. in other words, dynamic interpretation of the existing instruments should be implemented to provide protection for the affected people, including the implementation of relevant international legal principles to ensure that the rights of the affected people are fully protected. 1.3. method this writing reflects a legal research that primarily investigates relevant legal documents and discovers some legal and non-legal concepts that are connected to the central topic of this article. the analysis is established by contending legal principles and norms as stipulated in international legal instruments as well as facts, concepts, and theories as provided in reports, textbooks, scientific journal and reviews. in particular, provisions contained in some legal instruments are interpreted beyond the creator’s intention but are construed in a dynamic means by taking into consideration the current context and the development of international community’s common sense. 13 norman myers, ‘environmental refugees,” population and environment 19, no.2 (1997): 167-182. https://doi.org/10.1023/a:1024623431924 14 diane c. bates, “environmental refugees? classifying human migrations caused by environmental change,” population and environment 23, no. 5 (2002): 465-477. 15 elizabeth burleson, ‘climate change displacement to refuge,’ journal of environmental law and litigation 25, no. 19 (2010): 19-36. 16 richard black, op.cit. udayana journal of law and culture vol. 02 no.2, july 2018 225 refugee’ is consistently promoted and elevated. however, she urges actions from developed countries to assist the affected people by reducing their emission instead of labelling them with ‘environmental refugees’.30 bayes ahmad offered critical overview of accommodating the climate refugees by countries and proposed an innovative method by considering the status of climate pollution, resource consumption, economy and human development rankings to address the problem by bringing humanitarian justice to the ultimate climate refugees.31 in addition, wennersten et.al acknowledges that the concept of climate refugees is a legitimate category without any convincing justification.32 2. result and analysis 2.1. climate change and human movement: a matter of causalities while the scientific aspects of climate change have become the most common topics of discussion among scholars and the scientific community, the social and humanitarian aspects of this global phenomenon have received little attention.33 although human displacement has been considered one of the most severe social impacts of climate change, 34 the impact on transboundary human displacement is considered a less appealing issue, and therefore, has not been legally stipulated in international instruments. in the latest synthesis reports, the intergovernmental panel on climate change (ipcc) has suggested that the adverse impacts of climate change will potentially affect humans in various ways, including human movement, and has suggested that human displacement is one of the most effective adaptation mechanisms35 scholars and international humanitarian agencies have projected that the number of people who have to migrate as a result of climate change will continue to grow within the 30 rebecca hingley, “climate refugees: an oceanic perspective,” asia and the pacific policy studies 4, no. 1 (2017):158-165. 31 bayes ahmed, “who takesresponsibility for the climaterefugees?,” international journal of climate change strategies and management 10,no 1 (2018), https://doi.org/10.1108/ ijccsm-10-20160149 (2018): 5. 32 andrew baldwin,“rising tides: climate refugees in the twenty-first century,” by wennersten, john, and robbins, denise. book review, international migration review 1-3 , 2018. 33 antonio guterres, op.cit. 34 ipcc, ‘climate change 2007: impacts, adaptation and vulnerability’ (2007)<https://www.ipcc. ch/pdf/assessment-report/ar4/wg2/ar4_wg2_full_report.pdf>; while it is also considered by the ipcc as a normal adaptation measure against climate change 35 ipcc, ‘climate change 2014: synthesis report’, (2015), 73 <http://www.ipcc.ch/pdf/assessment-report/ar5/syr/syr_ar5_final_full.pdf>; although for one island state in the pacific, human displacement is not supposed to be part of adaptation mechanism in international instrument, because it would give an impression that the complexity of climate change can be easily solved by displacing people, instead of reducing the greenhouse gases emission which have been identified and accepted as the major cause of the phenomenon. climate change and human migration: towards more humane interpretation of refugee i gede eka sarjana of syrian migration to european countries.22 it provides an approach that resulted in a view that the european union has not fully harmonized asylum policy in order to establish minimum acceptable standards for applicants and ensure the granting of international protection to beneficiaries.23 the study found that membership of, and integration into, a new community, is the meaning of asylum and protection for the refugee.24 worster conducted a study to discuss the use of human-centered interests in expanding the legal concept of refugees as defined in the convention under customary international law and the use of state-centered interests in narrowing such definition.25 it suggested that defining refugee under customary international law should include inter alia ‘individuals persecuted on the basis of gender or sexual orientation.26 another study from jenny poon recommends to expand the definition of “persecution” by recognising environmental refugees as members of “a particular social group”, or creating an entirely new treaty.27 scholars have been discussing the existing formulation of ‘refugee’ and ‘the crisis’ over the last few decades.28 john r. wennersten and denise robbins highlight the catastrophic impact of climate change on human displacement in many countries, specifically in asia and africa. the authors argue that millions of people have been hit by climate-related calamities and compelled to flee their homes as refugee, while the term ‘environmental refugees’ has not been legally accepted.29 a more interesting and contradicting opinion comes from rebecca hingley. while other scholars promote the term ‘environmental refugees’ to be internationally accepted, hingley demands international community to help the affected people to solve their problem. the setting of her argument was in the pacific region, which consists of many low-lying island states such as tuvalu, samoa, tonga, maldives and kiribati. she argues that the consistent use of the term ‘environmental refugees’ will only create a negative image such as weak and hopeless to the affected people instead of strong and brave. she also underlines actors in which the term ‘environmental 22 dallal stevens, “asylum, refugee protection and the european response to syrian migration,” journal of human rights practice 9 (2017): 184, doi: 10.1093/jhuman/hux016 23 ibid, 186. 24 ibid, 185. 25 william thomas worster, “the evolving definition of the refugee in contemporary international law”, berkeley journal of international law 30, no. 1 (2012): 94. http://dx.doi.org/https://doi. org/10.15779/z38zp90 26 ibid, 158. on the issue of persecution, see section 2.3 of the present article. 27 jenny poon, “addressing the protection gap of environmental refugees: a reform of the 1951 refugee convention?,” groningenjournal of international law, (march2017), https://grojil.org/2017/03/28/ addressing-the-protection-gap-of-environmental-refugees-a-reform-of-the-1951-refugee-convention/ 28 cigdem bozdag and kevin smets, “understanding the images of alan kurdi with ‘small data’: a qualitative, comparative analysis of tweets about refugees in turkey and flanders (belgium)” international journal of communication 11 (2017): 4064. 29 john r. wennersten and denise robbins,rising tides: climate refugees in the twenty-first century, (indiana university press 2017). 226 refugee’ is consistently promoted and elevated. however, she urges actions from developed countries to assist the affected people by reducing their emission instead of labelling them with ‘environmental refugees’.30 bayes ahmad offered critical overview of accommodating the climate refugees by countries and proposed an innovative method by considering the status of climate pollution, resource consumption, economy and human development rankings to address the problem by bringing humanitarian justice to the ultimate climate refugees.31 in addition, wennersten et.al acknowledges that the concept of climate refugees is a legitimate category without any convincing justification.32 2. result and analysis 2.1. climate change and human movement: a matter of causalities while the scientific aspects of climate change have become the most common topics of discussion among scholars and the scientific community, the social and humanitarian aspects of this global phenomenon have received little attention.33 although human displacement has been considered one of the most severe social impacts of climate change, 34 the impact on transboundary human displacement is considered a less appealing issue, and therefore, has not been legally stipulated in international instruments. in the latest synthesis reports, the intergovernmental panel on climate change (ipcc) has suggested that the adverse impacts of climate change will potentially affect humans in various ways, including human movement, and has suggested that human displacement is one of the most effective adaptation mechanisms35 scholars and international humanitarian agencies have projected that the number of people who have to migrate as a result of climate change will continue to grow within the 30 rebecca hingley, “climate refugees: an oceanic perspective,” asia and the pacific policy studies 4, no. 1 (2017):158-165. 31 bayes ahmed, “who takesresponsibility for the climaterefugees?,” international journal of climate change strategies and management 10,no 1 (2018), https://doi.org/10.1108/ ijccsm-10-20160149 (2018): 5. 32 andrew baldwin,“rising tides: climate refugees in the twenty-first century,” by wennersten, john, and robbins, denise. book review, international migration review 1-3 , 2018. 33 antonio guterres, op.cit. 34 ipcc, ‘climate change 2007: impacts, adaptation and vulnerability’ (2007)<https://www.ipcc. ch/pdf/assessment-report/ar4/wg2/ar4_wg2_full_report.pdf>; while it is also considered by the ipcc as a normal adaptation measure against climate change 35 ipcc, ‘climate change 2014: synthesis report’, (2015), 73 <http://www.ipcc.ch/pdf/assessment-report/ar5/syr/syr_ar5_final_full.pdf>; although for one island state in the pacific, human displacement is not supposed to be part of adaptation mechanism in international instrument, because it would give an impression that the complexity of climate change can be easily solved by displacing people, instead of reducing the greenhouse gases emission which have been identified and accepted as the major cause of the phenomenon. climate change and human migration: towards more humane interpretation of refugee i gede eka sarjana of syrian migration to european countries.22 it provides an approach that resulted in a view that the european union has not fully harmonized asylum policy in order to establish minimum acceptable standards for applicants and ensure the granting of international protection to beneficiaries.23 the study found that membership of, and integration into, a new community, is the meaning of asylum and protection for the refugee.24 worster conducted a study to discuss the use of human-centered interests in expanding the legal concept of refugees as defined in the convention under customary international law and the use of state-centered interests in narrowing such definition.25 it suggested that defining refugee under customary international law should include inter alia ‘individuals persecuted on the basis of gender or sexual orientation.26 another study from jenny poon recommends to expand the definition of “persecution” by recognising environmental refugees as members of “a particular social group”, or creating an entirely new treaty.27 scholars have been discussing the existing formulation of ‘refugee’ and ‘the crisis’ over the last few decades.28 john r. wennersten and denise robbins highlight the catastrophic impact of climate change on human displacement in many countries, specifically in asia and africa. the authors argue that millions of people have been hit by climate-related calamities and compelled to flee their homes as refugee, while the term ‘environmental refugees’ has not been legally accepted.29 a more interesting and contradicting opinion comes from rebecca hingley. while other scholars promote the term ‘environmental refugees’ to be internationally accepted, hingley demands international community to help the affected people to solve their problem. the setting of her argument was in the pacific region, which consists of many low-lying island states such as tuvalu, samoa, tonga, maldives and kiribati. she argues that the consistent use of the term ‘environmental refugees’ will only create a negative image such as weak and hopeless to the affected people instead of strong and brave. she also underlines actors in which the term ‘environmental 22 dallal stevens, “asylum, refugee protection and the european response to syrian migration,” journal of human rights practice 9 (2017): 184, doi: 10.1093/jhuman/hux016 23 ibid, 186. 24 ibid, 185. 25 william thomas worster, “the evolving definition of the refugee in contemporary international law”, berkeley journal of international law 30, no. 1 (2012): 94. http://dx.doi.org/https://doi. org/10.15779/z38zp90 26 ibid, 158. on the issue of persecution, see section 2.3 of the present article. 27 jenny poon, “addressing the protection gap of environmental refugees: a reform of the 1951 refugee convention?,” groningenjournal of international law, (march2017), https://grojil.org/2017/03/28/ addressing-the-protection-gap-of-environmental-refugees-a-reform-of-the-1951-refugee-convention/ 28 cigdem bozdag and kevin smets, “understanding the images of alan kurdi with ‘small data’: a qualitative, comparative analysis of tweets about refugees in turkey and flanders (belgium)” international journal of communication 11 (2017): 4064. 29 john r. wennersten and denise robbins,rising tides: climate refugees in the twenty-first century, (indiana university press 2017). udayana journal of law and culture vol. 02 no.2, july 2018 227 the armed conflict that occurred in darfur, sudan, regardless of other pre-existing stressors, can be considered as one example of a conflict that was ignited by one of the climate change-related disasters, drought.43 the sudanese government claimed that water scarcity, which led to a drastic decline in food production, triggered a prolonged traditional conflict among community members.44 however, it is simplistic to say that climate change will lead to civil strife or armed conflict. therefore, further research is needed to show the intertwined between the two and examine the role of other factors. while the connection between climate change and human displacement has gained international recognition from the majority of scholars and academics, using climate change as the legal basis to seek international protection or specifically refugee status is problematic. the complexity is obvious from the few cases brought before australian and new zealand courts by those who have been severely affected by climate change. in those cases, the courts have refused to grant international protection status to the applicants because the claims are not in accordance with the definition of refugee stipulated in the existing 1951 refugee convention.45 in making their decisions, the courts considered several factors in order to establish a causal link between climate change and the application of refugee status. the courts took into consideration the existing definition in the convention and related national legislation of the country, where the application is submitted. firstly, the cause of the migration must be determined: whether or not the environmental pressures is the only reason underlying the applicant’s decision to migrate. this point requires solid scientific evidence, and obtaining a definitive answer takes a long time, given the contribution of other pre-existing economic factors such as poverty, unemployment, and so on. secondly, the size or the extent of environmental changes or environmental stress that induced the migration must be determined. it is difficult for the decision makers to decide whether or not a particular event is severe enough to force the affected communities to flee their home. thirdly, the court must determine whether the time span of the environmental stress is sufficient to force the affected people to migrate. given that such events can have a long-term impact, or can cause damage after a certain period of time, it is necessary to conduct a thorough scientific analysis to predict the timing and duration of the environmental impact. 43 for more information, see world food program usa report, “winning the peace: hunger and instability” (december 2017); see also: chase sova, “the first climate change conflict”, world food program usa (november 2017) https://wfpusa.org/articles/the-first-climate-change-conflict/ 44 jan selby and clemens hoffmann, “beyond scarcity: rethinking water, climate change and conflict in the sudans,” global environmental change 29 (2014): 360-370. https://doi.org/10.1016/j. gloenvcha.2014.01.008; watch also a video from al jazeera, ‘inside story: is climate change a global security threat?’, (2011);<https://www.youtube.com/watch?v=7ksegrvrwzq> 45 n95/09386 [1996] rrta 3191 (7 november 1996); 0907346 [2009] rrta 1168 (10 december 2009); 1004726 [2010] rrta 845 (30 september 2010). see also: immigration and protection tribunal new zealand, “[2014] nzipt 800517-520 <https://forms.justice.govt.nz/search/ipt/documents/deportation/ pdf/rem_20140604_501370.pdf> climate change and human migration: towards more humane interpretation of refugee i gede eka sarjana next two or three decades.36 however, does this mean that climate change will necessarily trigger human displacement? the issue of whether or not environmental degradation, or specifically climate change, is the cause of human displacement has become a highly controversial topic among international scholars over the last two decades.37 while more physical evidence on this matter has been provided by the influx of people affected by environmental degradation,38 the link to climate change is not straightforward. there have been misconceived or misguided opinions that the adverse effects of climate change, such as droughts and sea level rise, have become an immediate force that have driven the affected people to flee their homes. although there is a close relationship between environmental degradation and climate change, climate change is not necessarily the root cause of environmental degradation that leads to human displacement.39 various other problems that already exist in particular regions, such as over-population, unemployment, poverty, inequality of resources, political instability, lack of education and health problems, may play major roles in triggering human migration. numerous international scholars have asserted that extreme events as a result of climate change such as floods, droughts, tropical storm and sea level rise are important factors that aggravate these pre-existing conditions.40 in other words, affected communities, or communities with less ability to cope with the existing conditions are highly vulnerable to environmental changes, especially global warming or climate change-related calamities. such events are also indirectly associated with civil strife and armed conflicts in various countries, especially in less developed countries with limited natural resources.41 droughts and floods in certain parts of africa and asia as a result of increased temperature and extreme weather have led to a significant decline in food production. as a result, famine and competition for basic needs and natural resources amongst community members has increased, which in turn has, in most cases, led to prolonged civil conflicts 42 36 norman myers, ‘environmental refugees: a growing phenomenon of the 2st century’ (2001) the royal society 609<http://rstb.royalsocietypublishing.org/content/royptb/357/1420/609.full.pdf>; see also: unhcr, ‘2007 global trends: refugees, asylum seekers, returnees, internally displaced and stateless persons’ (2008) <http://www.unhcr.org/4852366f2.html> 37 richard black, op.cit. 38 myers, op.cit. 39 richard black, op.cit. 40 see jane mc adam, op.cit; see also: steve lonergan, “the role of environmental degradation in population displacement,” environmental change and security project report 4, no. 6 (1998): 5-15.; see also gaim kibreab, “environmental causes and impact of refugee movements: a critique of the current debate,” disasters 21, no. 1 (1997): 20-38. https://doi.org/10.1111/1467-7717.00042 41 vikram kolmannskog and lisetta trebbi, op.cit. 42 this situation has forced the un to issue such resolution, for example the unsc resolution 1376 (2001) regarding ceasefire agreement in congo; and also the unsc resolution 1478 (2003) with regard to conflict in liberia; see also cullen s. hendrix and idean salehyan, “climate change, rainfall, and social conflict in africa,” journal of peace research 49, no. 1 (2012): 35-50. https://doi.org/10.1177/0022343311426165 228 the armed conflict that occurred in darfur, sudan, regardless of other pre-existing stressors, can be considered as one example of a conflict that was ignited by one of the climate change-related disasters, drought.43 the sudanese government claimed that water scarcity, which led to a drastic decline in food production, triggered a prolonged traditional conflict among community members.44 however, it is simplistic to say that climate change will lead to civil strife or armed conflict. therefore, further research is needed to show the intertwined between the two and examine the role of other factors. while the connection between climate change and human displacement has gained international recognition from the majority of scholars and academics, using climate change as the legal basis to seek international protection or specifically refugee status is problematic. the complexity is obvious from the few cases brought before australian and new zealand courts by those who have been severely affected by climate change. in those cases, the courts have refused to grant international protection status to the applicants because the claims are not in accordance with the definition of refugee stipulated in the existing 1951 refugee convention.45 in making their decisions, the courts considered several factors in order to establish a causal link between climate change and the application of refugee status. the courts took into consideration the existing definition in the convention and related national legislation of the country, where the application is submitted. firstly, the cause of the migration must be determined: whether or not the environmental pressures is the only reason underlying the applicant’s decision to migrate. this point requires solid scientific evidence, and obtaining a definitive answer takes a long time, given the contribution of other pre-existing economic factors such as poverty, unemployment, and so on. secondly, the size or the extent of environmental changes or environmental stress that induced the migration must be determined. it is difficult for the decision makers to decide whether or not a particular event is severe enough to force the affected communities to flee their home. thirdly, the court must determine whether the time span of the environmental stress is sufficient to force the affected people to migrate. given that such events can have a long-term impact, or can cause damage after a certain period of time, it is necessary to conduct a thorough scientific analysis to predict the timing and duration of the environmental impact. 43 for more information, see world food program usa report, “winning the peace: hunger and instability” (december 2017); see also: chase sova, “the first climate change conflict”, world food program usa (november 2017) https://wfpusa.org/articles/the-first-climate-change-conflict/ 44 jan selby and clemens hoffmann, “beyond scarcity: rethinking water, climate change and conflict in the sudans,” global environmental change 29 (2014): 360-370. https://doi.org/10.1016/j. gloenvcha.2014.01.008; watch also a video from al jazeera, ‘inside story: is climate change a global security threat?’, (2011);<https://www.youtube.com/watch?v=7ksegrvrwzq> 45 n95/09386 [1996] rrta 3191 (7 november 1996); 0907346 [2009] rrta 1168 (10 december 2009); 1004726 [2010] rrta 845 (30 september 2010). see also: immigration and protection tribunal new zealand, “[2014] nzipt 800517-520 <https://forms.justice.govt.nz/search/ipt/documents/deportation/ pdf/rem_20140604_501370.pdf> climate change and human migration: towards more humane interpretation of refugee i gede eka sarjana next two or three decades.36 however, does this mean that climate change will necessarily trigger human displacement? the issue of whether or not environmental degradation, or specifically climate change, is the cause of human displacement has become a highly controversial topic among international scholars over the last two decades.37 while more physical evidence on this matter has been provided by the influx of people affected by environmental degradation,38 the link to climate change is not straightforward. there have been misconceived or misguided opinions that the adverse effects of climate change, such as droughts and sea level rise, have become an immediate force that have driven the affected people to flee their homes. although there is a close relationship between environmental degradation and climate change, climate change is not necessarily the root cause of environmental degradation that leads to human displacement.39 various other problems that already exist in particular regions, such as over-population, unemployment, poverty, inequality of resources, political instability, lack of education and health problems, may play major roles in triggering human migration. numerous international scholars have asserted that extreme events as a result of climate change such as floods, droughts, tropical storm and sea level rise are important factors that aggravate these pre-existing conditions.40 in other words, affected communities, or communities with less ability to cope with the existing conditions are highly vulnerable to environmental changes, especially global warming or climate change-related calamities. such events are also indirectly associated with civil strife and armed conflicts in various countries, especially in less developed countries with limited natural resources.41 droughts and floods in certain parts of africa and asia as a result of increased temperature and extreme weather have led to a significant decline in food production. as a result, famine and competition for basic needs and natural resources amongst community members has increased, which in turn has, in most cases, led to prolonged civil conflicts 42 36 norman myers, ‘environmental refugees: a growing phenomenon of the 2st century’ (2001) the royal society 609<http://rstb.royalsocietypublishing.org/content/royptb/357/1420/609.full.pdf>; see also: unhcr, ‘2007 global trends: refugees, asylum seekers, returnees, internally displaced and stateless persons’ (2008) <http://www.unhcr.org/4852366f2.html> 37 richard black, op.cit. 38 myers, op.cit. 39 richard black, op.cit. 40 see jane mc adam, op.cit; see also: steve lonergan, “the role of environmental degradation in population displacement,” environmental change and security project report 4, no. 6 (1998): 5-15.; see also gaim kibreab, “environmental causes and impact of refugee movements: a critique of the current debate,” disasters 21, no. 1 (1997): 20-38. https://doi.org/10.1111/1467-7717.00042 41 vikram kolmannskog and lisetta trebbi, op.cit. 42 this situation has forced the un to issue such resolution, for example the unsc resolution 1376 (2001) regarding ceasefire agreement in congo; and also the unsc resolution 1478 (2003) with regard to conflict in liberia; see also cullen s. hendrix and idean salehyan, “climate change, rainfall, and social conflict in africa,” journal of peace research 49, no. 1 (2012): 35-50. https://doi.org/10.1177/0022343311426165 udayana journal of law and culture vol. 02 no.2, july 2018 229 …every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality. this wide interpretation should become a model for other regions to deal with international humanitarian problems. human displacement is considered to be one of the greatest impacts of climate change.49 within the last decade, millions of people have been uprooted from their initial home as a result of climate change as they attempt to find better places within or beyond their national territories.50 millions more will potentially move in the future, according to projections made by international environmental and humanitarian bodies including unhcr and ipcc, as countries continue to release greenhouse gases into the atmosphere.51 various terms are used to describe people who leave their homes due to environmental change,52 including ‘environmental migrants’, ‘environmental refugees’, ‘climate refugees’, and ‘ecological migrants’. however, until recently there has been no legally acceptable consensus among scholars and international bodies regarding an appropriate term for this group of people. the international organization for migration (iom) has defined environmental migrants as follows: …persons or groups of persons who, for reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged to have to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their territory or abroad.53 although defining environmentally-induced displacement seems to be the best and the most appropriate attempt to provide stronger protection and legal status for the group,54 the situation of an environmental refugee does not clearly fit into the definition of refugee as stipulated in the refugee convention. therefore, extending 49 ipcc, op. cit. 50 see press release by the united nations university, as ranks of “environmental refugees” swell worldwide, calls grow for better definition, recognition, support, (october 2005);<http://www.ehs.unu. edu/file/get/3916> 51 freija van duijne, ‘scientists’s prediction of climate change: business as usual versus alternative futures’, (2015); <http://futuristablog.com/scientists-prediction-climate-change-business-usualversus-alternative-futures/> 52 olivia dun and francois gemenne, op.cit. 53 iom, ‘migration, climate change and the environment’, <https://www.iom.int/cms/en/sites/ iom/home/what-we-do/migration-and-climate-change/definitional-issues.html> 54 olivia dun and francois gemenne, op.cit. climate change and human migration: towards more humane interpretation of refugee i gede eka sarjana although one prominent case, a kiribati man’s application for environmental refugee status in new zealand has come to distressing ending in 2015, it has, at least, put an outset for the newly-introduced migration to be considered as a refugee in the future. the current situation seems to turn around from ‘zero to hero’ when new zealand prime minister has given a sign that new zealand government will open serious discussion with pacific nations over the creation of special refugee visa mechanism for pacific island residents who are forced to flee their country due to climate-related disasters.46 2.2. are environmental migrants considered refugees? to determine whether or not a group of people who are displaced from their original home can be defined as refugees, it is important to understand the definition of refugee based on the existing international law. article 1(a)(2) of the 1951 convention relating to the status of refugee47 (hereinafter referred to as refugee convention) defines a refugee as: “someone who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”. this definition demonstrates the narrow and stringent scope of the convention. in order to be defined as a refugee, a person needs to satisfy four main criteria: 1. have an obvious fear or be under threat, or potential threat of persecution; 2. the persecution is on the grounds of race, nationality, religion, membership of particular social group, or political opinion; 3. be outside of his/her home country; 4. unable or unwilling to avail himself of the protection. these four important points set out in the 1951 refugee convention become highly debatable when determining whether or not people migrating due to environmental stress can be categorized as refugees. a wider interpretation of the term refugee can be seen in regional human rights documents, such as the african union convention,48 which describes refugees as: 46 see jonathan pearlman, “new zealand creates special refugee visa for pacific islanders affected by climate change”, the straits times (december 2017). https://www.straitstimes.com/asia/australianz/ new-zealand-creates-special-refugee-visa-for-pacific-islanders-affected-by-climate 47 convention relating to the status of refugee, adopted 28 july 1951, entered into force 22 april 1954. 48 nafrican union convention,<http://www.achpr.org/files/instruments/refugee-convention/achpr_instr_conv_refug_eng.pdf> 230 …every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality. this wide interpretation should become a model for other regions to deal with international humanitarian problems. human displacement is considered to be one of the greatest impacts of climate change.49 within the last decade, millions of people have been uprooted from their initial home as a result of climate change as they attempt to find better places within or beyond their national territories.50 millions more will potentially move in the future, according to projections made by international environmental and humanitarian bodies including unhcr and ipcc, as countries continue to release greenhouse gases into the atmosphere.51 various terms are used to describe people who leave their homes due to environmental change,52 including ‘environmental migrants’, ‘environmental refugees’, ‘climate refugees’, and ‘ecological migrants’. however, until recently there has been no legally acceptable consensus among scholars and international bodies regarding an appropriate term for this group of people. the international organization for migration (iom) has defined environmental migrants as follows: …persons or groups of persons who, for reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged to have to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their territory or abroad.53 although defining environmentally-induced displacement seems to be the best and the most appropriate attempt to provide stronger protection and legal status for the group,54 the situation of an environmental refugee does not clearly fit into the definition of refugee as stipulated in the refugee convention. therefore, extending 49 ipcc, op. cit. 50 see press release by the united nations university, as ranks of “environmental refugees” swell worldwide, calls grow for better definition, recognition, support, (october 2005);<http://www.ehs.unu. edu/file/get/3916> 51 freija van duijne, ‘scientists’s prediction of climate change: business as usual versus alternative futures’, (2015); <http://futuristablog.com/scientists-prediction-climate-change-business-usualversus-alternative-futures/> 52 olivia dun and francois gemenne, op.cit. 53 iom, ‘migration, climate change and the environment’, <https://www.iom.int/cms/en/sites/ iom/home/what-we-do/migration-and-climate-change/definitional-issues.html> 54 olivia dun and francois gemenne, op.cit. climate change and human migration: towards more humane interpretation of refugee i gede eka sarjana although one prominent case, a kiribati man’s application for environmental refugee status in new zealand has come to distressing ending in 2015, it has, at least, put an outset for the newly-introduced migration to be considered as a refugee in the future. the current situation seems to turn around from ‘zero to hero’ when new zealand prime minister has given a sign that new zealand government will open serious discussion with pacific nations over the creation of special refugee visa mechanism for pacific island residents who are forced to flee their country due to climate-related disasters.46 2.2. are environmental migrants considered refugees? to determine whether or not a group of people who are displaced from their original home can be defined as refugees, it is important to understand the definition of refugee based on the existing international law. article 1(a)(2) of the 1951 convention relating to the status of refugee47 (hereinafter referred to as refugee convention) defines a refugee as: “someone who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”. this definition demonstrates the narrow and stringent scope of the convention. in order to be defined as a refugee, a person needs to satisfy four main criteria: 1. have an obvious fear or be under threat, or potential threat of persecution; 2. the persecution is on the grounds of race, nationality, religion, membership of particular social group, or political opinion; 3. be outside of his/her home country; 4. unable or unwilling to avail himself of the protection. these four important points set out in the 1951 refugee convention become highly debatable when determining whether or not people migrating due to environmental stress can be categorized as refugees. a wider interpretation of the term refugee can be seen in regional human rights documents, such as the african union convention,48 which describes refugees as: 46 see jonathan pearlman, “new zealand creates special refugee visa for pacific islanders affected by climate change”, the straits times (december 2017). https://www.straitstimes.com/asia/australianz/ new-zealand-creates-special-refugee-visa-for-pacific-islanders-affected-by-climate 47 convention relating to the status of refugee, adopted 28 july 1951, entered into force 22 april 1954. 48 nafrican union convention,<http://www.achpr.org/files/instruments/refugee-convention/achpr_instr_conv_refug_eng.pdf> udayana journal of law and culture vol. 02 no.2, july 2018 231 who perform the acts of persecution. it should be seen as a complex process, including the consequences caused by the actions of the person or group of people and the ability of the government to protect its citizens. persecution should be seen as an act that brings negative consequences for people who experience it. when persecution is narrowly defined based on the actors, it will be understood differently. some actions that are not illegal in one country may be considered as persecution by outsiders. for example, when a legitimate government attempts to implement what is stipulated in domestic law in order to punish a person or group of people who commit acts of treason against the government. another example is when a government tries to fight a group of rebels from a particular race or religion, which has obviously created public insecurity and fear in the community. the major elements of persecution should emphasize the external stresses, fears, and potential threats, experienced by the affected communities, without the element of crime. therefore, environmental factors that cause unpleasant conditions and stress may be considered a persecution, regardless of the actors who cause such conditions. the ability of the government to protect its citizens and to ensure the fulfillment of their basic rights should also be a consideration for decision makers in determining the elements of persecution. the willingness and the ability of the government could be two different issues. in certain cases, the government is willing to guarantee and protect the rights of its citizens, but in fact is unable to do so. when the government is unable to protect its citizens due to economic constraints, the question remains as to whether it can be considered persecution. in a few cases regarding the application for environmental refugee status in australia and new zealand, the interpretation of the term ‘persecution’ became one key element of the court’s decision. the court/tribunal refused to grant refugee status to the applicants due to the ‘indiscriminate effect’ of climate change. the court argued that the impacts of climate change, which formed the legal basis of the claim were not deliberately aimed at certain individuals or particular groups of people in tuvalu and kiribati. they argued that climate change happens to everyone in those countries or even in the world without exception.57 this argument seems shallow and ignored the fact that the applicants were actually experiencing an unbearable situation in their home countries. at the same time, the decision overlooked the extent of damage and the level of difficulty encountered. the reasoning that the impact of climate change affects all people in both countries is not firm enough and generalized the situation. in fact, not all people who were living in these countries experienced the same situation, feeling, fear and threat. people who lived further away from the shore or on the higher ground did not experience the same problem faced by the applicants. 57 the telegraph, ‘kiribati climate change refugee rejected by new zealand’, (2013); <http://www. telegraph.co.uk/news/worldnews/australiaandthepacific/kiribati/10474602/kiribati-climate-changerefugee-rejected-by-new-zealand.html climate change and human migration: towards more humane interpretation of refugee i gede eka sarjana the definition of refugee set out in the refugee convention to include other types of migrants, or creating a new treaty or protocol of the existing convention, is considered urgent by many scholars,55 although it may not be an appropriate alternative given the risk of weakening the legal consequences of protection that had been given to the ‘convention refugees’.56 in the context of the responsibility of the state, there are several issues to be raised, especially at the time the affected people are forced to flee their homes, these include: the responsibility or willingness of the states to assist the affected people to cross their national border; the ability of the affected communities to gain access to other countries and to convince them to render their assistance; and the power of international humanitarian agencies to encourage other countries to assist the affected community to seek refuge, and at the same time, to protect them when they are outside of their national territory. in order to respond to those issues, strong commitment from the states and the support of international bodies, mainly the united nations, are essential. 2.3. converging the possibilities as described previously, the most widely accepted definition of ‘refugee’ comes from the refugee convention. the first part of the convention definition is persecution. this term is closely associated with an act conducted intentionally by humans and/ or the power of one group over others. from a historical point of view, the state of war and conflicts in many countries during the second world war was the background and the foundation of the establishment of the convention in 1951. therefore, the protection of people in countries where conflict and physical violence is still a frightening spectre has formed the content and formulation of the document. however, this does not mean that the term persecution should be construed and interpreted in a rigid way, especially for the sake of humanity. moreover, this international document is supposed to be dynamic and open to development. in general, the term persecution can be defined as pressure and repression carried out by the ruling government over a person or group of people in order to stop activities that, from the government’s standpoint, will potentially lead to horizontal conflict, social unrest or threaten the government position. the definition of persecution should not be seen narrowly in terms of the actors 55 biermann and i. boas, ‘preparing for a warmer world: towards a global governance system to protect climate refugees’, (2007) 33 global governance working paper; see also angela williams, “turning the tide: recognizing climate change refugees in international law,” law & policy 30, no. 4 (2008): 502-529. https://doi.org/10.1111/j.1467-9930.2008.00290.x; also bonnie docherty and tyler giannini, ‘confronting a rising tide: a proposal for a convention on climate change refugees’, (2009), 33 harvard environmental law review, 349-350; see also a draft convention on the international status of environmentally-displaced persons, (2013) <http://intergenlaw.com/wp-content/uploads/2015/02/ draft-convention-on-the-international-status-on-environmentally-displaced-persons-third-version.pdf> 56 unhcr, op.cit. 232 who perform the acts of persecution. it should be seen as a complex process, including the consequences caused by the actions of the person or group of people and the ability of the government to protect its citizens. persecution should be seen as an act that brings negative consequences for people who experience it. when persecution is narrowly defined based on the actors, it will be understood differently. some actions that are not illegal in one country may be considered as persecution by outsiders. for example, when a legitimate government attempts to implement what is stipulated in domestic law in order to punish a person or group of people who commit acts of treason against the government. another example is when a government tries to fight a group of rebels from a particular race or religion, which has obviously created public insecurity and fear in the community. the major elements of persecution should emphasize the external stresses, fears, and potential threats, experienced by the affected communities, without the element of crime. therefore, environmental factors that cause unpleasant conditions and stress may be considered a persecution, regardless of the actors who cause such conditions. the ability of the government to protect its citizens and to ensure the fulfillment of their basic rights should also be a consideration for decision makers in determining the elements of persecution. the willingness and the ability of the government could be two different issues. in certain cases, the government is willing to guarantee and protect the rights of its citizens, but in fact is unable to do so. when the government is unable to protect its citizens due to economic constraints, the question remains as to whether it can be considered persecution. in a few cases regarding the application for environmental refugee status in australia and new zealand, the interpretation of the term ‘persecution’ became one key element of the court’s decision. the court/tribunal refused to grant refugee status to the applicants due to the ‘indiscriminate effect’ of climate change. the court argued that the impacts of climate change, which formed the legal basis of the claim were not deliberately aimed at certain individuals or particular groups of people in tuvalu and kiribati. they argued that climate change happens to everyone in those countries or even in the world without exception.57 this argument seems shallow and ignored the fact that the applicants were actually experiencing an unbearable situation in their home countries. at the same time, the decision overlooked the extent of damage and the level of difficulty encountered. the reasoning that the impact of climate change affects all people in both countries is not firm enough and generalized the situation. in fact, not all people who were living in these countries experienced the same situation, feeling, fear and threat. people who lived further away from the shore or on the higher ground did not experience the same problem faced by the applicants. 57 the telegraph, ‘kiribati climate change refugee rejected by new zealand’, (2013); <http://www. telegraph.co.uk/news/worldnews/australiaandthepacific/kiribati/10474602/kiribati-climate-changerefugee-rejected-by-new-zealand.html climate change and human migration: towards more humane interpretation of refugee i gede eka sarjana the definition of refugee set out in the refugee convention to include other types of migrants, or creating a new treaty or protocol of the existing convention, is considered urgent by many scholars,55 although it may not be an appropriate alternative given the risk of weakening the legal consequences of protection that had been given to the ‘convention refugees’.56 in the context of the responsibility of the state, there are several issues to be raised, especially at the time the affected people are forced to flee their homes, these include: the responsibility or willingness of the states to assist the affected people to cross their national border; the ability of the affected communities to gain access to other countries and to convince them to render their assistance; and the power of international humanitarian agencies to encourage other countries to assist the affected community to seek refuge, and at the same time, to protect them when they are outside of their national territory. in order to respond to those issues, strong commitment from the states and the support of international bodies, mainly the united nations, are essential. 2.3. converging the possibilities as described previously, the most widely accepted definition of ‘refugee’ comes from the refugee convention. the first part of the convention definition is persecution. this term is closely associated with an act conducted intentionally by humans and/ or the power of one group over others. from a historical point of view, the state of war and conflicts in many countries during the second world war was the background and the foundation of the establishment of the convention in 1951. therefore, the protection of people in countries where conflict and physical violence is still a frightening spectre has formed the content and formulation of the document. however, this does not mean that the term persecution should be construed and interpreted in a rigid way, especially for the sake of humanity. moreover, this international document is supposed to be dynamic and open to development. in general, the term persecution can be defined as pressure and repression carried out by the ruling government over a person or group of people in order to stop activities that, from the government’s standpoint, will potentially lead to horizontal conflict, social unrest or threaten the government position. the definition of persecution should not be seen narrowly in terms of the actors 55 biermann and i. boas, ‘preparing for a warmer world: towards a global governance system to protect climate refugees’, (2007) 33 global governance working paper; see also angela williams, “turning the tide: recognizing climate change refugees in international law,” law & policy 30, no. 4 (2008): 502-529. https://doi.org/10.1111/j.1467-9930.2008.00290.x; also bonnie docherty and tyler giannini, ‘confronting a rising tide: a proposal for a convention on climate change refugees’, (2009), 33 harvard environmental law review, 349-350; see also a draft convention on the international status of environmentally-displaced persons, (2013) <http://intergenlaw.com/wp-content/uploads/2015/02/ draft-convention-on-the-international-status-on-environmentally-displaced-persons-third-version.pdf> 56 unhcr, op.cit. udayana journal of law and culture vol. 02 no.2, july 2018 233 from the victim’s standpoint, climate change does not, in fact, have the same effect on everyone in a particular region. an increase in temperature of 1 degree celsius, for example, would be perceived as a bearable by those who live in cold climates countries or in the region with better adaptability; however, it would be a catastrophe for those who live in hot climates with low adaptation ability. furthermore, if the term persecution is used in the context of ‘indiscriminate’, there will be a gap between the formulation of refugee and the protection they obtain in reality. refugees from conflicting countries in parts of the middle east or africa, for example, flee their countries and cross-national borders due to continuing fears of the existing armed conflict, as well as the psychological damage to their young children who witness violence around them.58 in this case, the element of persecution is unclear and unsatisfactory, because the threat that they are actually facing is not on an individual basis. moreover, the persecution is not on the basis of race, religion, nationality, political opinion, or membership of particular social group as stipulated in the refugee convention. in fact, they still get international protection from international humanitarian agencies for indefinite lengths of time. persecution should also be seen from the point of view of potential effects. this stand-point defines persecution as encompassing highly likely future circumstance, that will put someone in real danger. in this context, a predictable danger caused by climate change and its related calamities will put someone, or a group of people, in possible hardship. in mid 2014 the new zealand immigration and protection tribunal (hereinafter referred to as nzipt) granted protection for a kiribati family. the decision of the tribunal was based on humanitarian and family considerations, rather than environmental aspects.59 the considerations used in this case, for example on the condition of children and family would have been different if the applicant did not have children and was not married; or if the applicant did not have any family members living in the country of destination. some experts argued that the decision to grant refugee status, in this case, is not going to literally ‘open the door’ for similar cases 58 for more information, see the 2018 human rights watch report, ‘middle east conflicts spur disastrous new trends for region’, (january 2018), https://www.hrw.org/news/2018/01/18/middleeast-conflicts-spur-disastrous-new-trends-region; see also: phillip connor, ‘conflicts in syria, iraq and yemen lead to millions of displaced migrants in the middle east since 2005’, pew research center, (october 2016), http://www.pewglobal.org/2016/10/18/conflicts-in-syria-iraq-and-yemen-lead-to-millions-of-displaced-migrants-in-the-middle-east-since-2005/; see also: wesley dockery, ‘which conflicts are causing migration from africa?’, info migrants, (may 2017), http://www.infomigrants.net/en/post/3428/whichconflicts-are-causing-migration-from-africa 59 library of congress, ‘new zealand: “climate change refugee” case overview’, (2015)<https:// www.loc.gov/law/help/climate-change-refugee/new-zealand.php> see: alex randall, ‘why new zealand did not accept “world’s first climate 234 in the future.60 however, it will at least, lay a strong foundation for the acknowledgement of environmental refugees. however, there are certain situations where environmental matters are closely linked to persecution that fits the definition in the convention; for example, deliberate actions of the government against any person or group of people affected by environmental disasters, such as government refusal to receive international aid or assistance from other countries in the aftermath of an environmental disaster. another situation is a deliberate action by the government to poison the water supply, preventing affected people from having adequate access to clean water; or deliberate discrimination against particular persons or a group of people in providing other services during an environmental disaster. the second point of the convention definition is that the persecution should be on the grounds of race, religion, nationality, political opinion, or membership of a particular social group. these conditions exclude the potential to form a legal basis for the protection of environmental refugees. the term persecution used in the 1951 convention is narrowly limited by the conditions following it. none of the conditions (race, religion, nationality, political opinion and membership of social group) provides the possibility for other circumstances to be included, including environmental matters. however, if persecution is viewed and defined from a different angle, as the cause of an unpleasant situation which triggers displacement, or if the focus is the result of the persecution, in which people are put in danger, climate change and its related calamities can be considered persecution. in the case of a sinking state due to sea level rises, the adverse impacts of climate change could be worse than that of traditional persecution, since environmentally displaced people could lose their citizenship as well as culture, that has been preserved for hundreds of years. the third element of the convention is that the affected person has to be outside of their home country. this element seems to be contradictory to what international scholars and organization have suggested: that the adverse effects of climate change will severely affect those who live in developing or poor countries who have less technical and economic ability to deal with the problem.61 in practice, the movement of the affected people who are called refugee, to some extent is unclear, whether it is based on the situation of avoiding persecution as 60 see: alex randall, ‘why new zealand did not accept “world’s first climate refugees’, climate home, (2014), <http://www.climatechangenews.com/2014/08/14/why-new-zealand-did-not-acceptworlds-first-climate-refugees/>; see also: abc news, ‘tuvalu climate family granted new zealand residency on appeal’ (2014), <http://www.abc.net.au/news/2014-08-05/an-tuvalu-climate-family-grantednz-residency-on-appeal/5650584> 61 unfccc, ‘climate change: impacts, vulnerabilities and adaptation in developing countries’, 2007; <http://unfccc.int/resource/docs/publications/impacts.pdf> climate change and human migration: towards more humane interpretation of refugee i gede eka sarjana udayana journal of law and culture vol. 02 no.2, july 2018 235 required in the convention, or due to other factors. if the reason for the migration is genuinely due to persecution in the home country, one will not migrate to one state for transit, and then move further to another country after a while. being outside of the home country is adequate to avoid persecution.62 one will be safe once he or she arrived in another country. it is no longer his or her home country’s legal jurisdiction. therefore, when the affected person then decides to move further to another country, the reason for such movement becomes indistinct. economic reasons to seek a better life seem to be the driving factor, since the threat of persecution no longer exists. for those who live in developed countries, where the governments are willing and fully capable of looking after their citizens in the aftermath of environmental disasters, cross-border migration will be highly unlikely, compared to internal displacement. hurricane katrina, which hit the us in 2005;63 the earthquake that devastated city of christchurch, new zealand in 2011;64 the earth quake in fukushima, japan in 201165 which resulted in radioactive radiation; super typhoon maysak in the us in 2015;66 and the floods in nice and riviera, france in 201567 are only a few examples of environmental calamities that hit certain countries but did not trigger cross-border migration. the willingness of the governments to guarantee the rights of their citizens, supported by advanced security systems, kept the affected people inside their national border, waiting for the conditions to improve. however, it is not always the same story for people who live in developing countries or poor countries. when natural disasters or environmental changes as a result of climate change swept over the countries, they have to face certain conditions that: first, they have nothing left with which to continue their life. in most cases, houses, farms, cattle, water resources, and other life-supporting facilities are destroyed; secondly, the government no longer has the ability to guarantee and protect citizens’ rights due to weak economic conditions. thirdly, when the option to flee their home becomes their last resort, they do not have the ability to cross their national border. in fact, the affected community cannot afford to travel to other 62 if referred to the definition of refugee in the 1951 refugee convention. 63 cnn, ‘hurricane katrina statistics fast facts’, (2016) <http://edition.cnn.com/2013/08/23/ us/hurricane-katrina-statistics-fast-facts/> 64 the sydney morning herald, ‘”we may be witnessing new zealand’s darkest day”: pm says 65 killed in quake, (2011)<http://www.smh.com.au/world/we-may-be-witnessing-new-zealands-darkestday-pm-says-65-killed-in-quake-20110222-1b356.html> 65 becky oskin, ‘japan earthquake & tsunami of 2011: facts and information’, (2015), <http:// www.livescience.com/39110-japan-2011-earthquake-tsunami-facts.html> 66 the weather channel, ‘super typhoon maysak (recap)’, 2015,<https://weather.com/storms/ typhoon/news/typhoon-maysak-yap-philippines-pacific> 67 bbc news, ‘france floods: 17 dead on riviera after storms’ (2015)<http://www.bbc.com/news/ world-europe-34437228> 236 countries, due to economic and financial constraints. therefore, it is important to understand that in most environmentally-induced displacement cases, the affected people tend to stay inside their national border due to lack of economic ability. it is completely different from traditional or political refugee, as they can afford to go to other countries to seek refuge. the last element of the convention refugee definition is the inability or unwillingness of the affected people to return to their home countries, due to persecution or potential threats they might face. continuing fears and trauma in a state of war or conflict, for example, can be a strong legal basis for someone not returning home, especially for women and children, as well as elderly people. however, the nature of this migration is temporary, since they are expected to return to their initial homes when the situation has improved. the situation might be quite similar for migration caused by a rapid-onset disaster, such as earthquake, landslide, flash flood, tsunami or typhoon, where most of the affected people will undergo temporary and internal migration. however, in slow-onset disasters, such as rising sea levels, salinity, droughts, desertification and land subsidence, people are forced to migrate far before the worst of the disaster actually occurs. in the situation of rising sea levels, for example, people in low-lying states that will potentially be drowned have been forced to make their decision to migrate before the actual inundation occurs.68 in this situation, the nature of the migration is permanent, due to unliveable environmental conditions which prevent them returning. therefore, the implementation of the term ‘unable to return to the initial homes’ as a legal basis in claiming international protection can be quite complicated since environmental migrants, to some extent, have to migrate far before the real impact occurs. while from a legal definition stand-point the term ‘environmental refugee’ is not legally recognized and regulated in the existing instruments, from a humanitarian point of view, those who are enforced to migrate due to environmental stress have the same rights as traditional refugees. therefore, decision-makers should implement a broader interpretation and more creative approaches to deal with global humanitarian development problems. this may not be the most appropriate solution to the debate on whether or not environmental migrants should be encompassed in the existing international instrument. however, it can, nevertheless, provide a benchmark for reference and the decision-making process in the future. 2.4. environmental refugees and international commitment it is widely accepted that the term ‘environmental refugee’ was promulgated and brought to the public debate arena by essam el hinnawi, through a promi68 see saiful huq, tim gaynor (ed), unhcr, ‘as sea levels rise, bangladeshis seek higher ground’, (2015) <http://www.unhcr.org/news/latest/2015/12/566ff51f6/sea-levels-rise-bangladeshis-seek-higher-ground.html> climate change and human migration: towards more humane interpretation of refugee i gede eka sarjana udayana journal of law and culture vol. 02 no.2, july 2018 237 nent report for the united nations in 1985.69 the term has become a highly debated topic among academics, scholars and international agencies ever since, especially with regard to its controversial legal status and its relation to global environmental problems such as climate change. in brief, the term is used to define people who flee their home countries and cross-national borders due to environmental stress. however, while the use of the term ‘environmental refugees’ or ‘climate refugees’ is intended to provide a strong emphasis on the relationship between climate changes and human migration,70 the term ‘environmental refugee’ is a legal fallacy,71 because it is not encompassed in the definition of refugee in the convention. therefore, people who flee their countries due to environmental stresses such as droughts, floods, and sea level rises cannot be categorized as refugees. from moral and humanitarian perspectives, developed countries in which the economic growth rate has far exceeded those of developing countries should have a higher moral awareness to help the affected communities in fighting for their right to obtain a decent and respectable life. as set out in international environmental instruments such as the unfccc72 and the kyoto protocol,73 the obligation to reduce co2 emissions is compulsory for developed countries. however, developed countries, due to economic and other considerations, have failed to achieve the goals agreed in the instruments, although international forums have been established to renegotiate the target.74 based on the principle of common but differentiated responsibilities (cbdr), set forth in the rio declaration of 1992, both developed and developing countries have similar obligations to reduce the adverse effects of climate change.75 the principle requires each state to join the fight against global environmental problems, based on two conditions: firstly, that every state has the same concern regarding climate change as a common problem of human life; secondly, the historical background on the existing global environmental problem and socio-economic conditions of each country in relation to its ability to address the problem.76 69 essam el hinnawi, environmental refugees, unep, (1985). 70 olivia dun and francois gemenne, op.cit. 71 keane, ‘the environmental cause and consequences of migration: a search for the meaning of “environmental refugees”’, (2004) 16 (209) the georgetown international environmental law review, 215. 72 the unfccc, adopted on 9 may 1992. 73 kyoto protocol, adopted on 11 december 1997. 74 see duncan clark, “has the kyoto protocol made any difference to carbon emissions?”, the guardian (november 2012)https://www.theguardian.com/environment/blog/2012/nov/26/kyoto-protocol-carbon-emissions 75 as explicitly stated on article 3 (1) and 4 (1) of the united nations framework convention on climate change. 76 cisdl, ‘the principle of common but differentiated responsibilities: origins and scope’, (2002); <http://cisdl.org/public/docs/news/brief_common.pdf> 238 under the principle of cbdr,77 all countries have the same responsibility to the existing global environmental problems. similar provisions are also seen in the 1992 unfccc: ... on the basis of equity and in accordance with reviews their common but differentiated responsibilities and respective capabilities. furthermore, the unfccc also states that the impact of climate change on the rest of humanity is a “common concern of humankind”,78 which can be interpreted as an order to every state, without exception, to join the fight against climate change. this principle regulates not only the legal responsibility for developed countries to take appropriate and foremost efforts to address this global issue, but also implies a moral duty to assist less developed countries to escape from the misfortune. this moral responsibility has played a vital role in determining the problems, given that international instruments seem to be less likely to enforce robust and specific sanctions, in terms of penalties and punishment for countries that do not meet their obligations. when a country does not want to be bound by being a party to an international instrument, international law cannot force it to be on board.79 moreover, there is no legal obligation for the states as parties of the refugee convention to recognize and to render protection for the affected people,80 and the question remains as to whether it is possible for millions of migrants to rely on the commitment and willingness of developed countries. given this, who should be responsible for this kind of migration? do the responsibilities really exist based on international legal instruments? looking at the previous experiences on the implementation of the unfccc and the kyoto protocol, the answer seems to be ‘no’.81 the developed countries’ reluctance and refusal of the concept of environmental/ climate refugees seem to be based on the premise that accepting the concept will implicitly confirm that the current climate problem is due to their contributions, and that therefore they should be fully responsible for addressing the problem.82 regardless of whether or not the environmental refugee is recognized, developed countries should accept that scientific evidence has demonstrated the close relationship between climate change and industrialization or the use of fossil fuels. ipcc as an acknowledged international scientific body has provided robust evidence on this matter. 77 can be seen in principle 7 of the rio declaration. 78 as clearly acknowledged in the preamble of the convention. 79 jack l. goldsmith and eric posner, the limits of international law (new york: oxford university press, 2005). 80 elizabeth mc namara, ‘conceptualizing discourses on environmental refugees at the united nations,’ population and environment 29, no. 1 (2007): 12. 81 angela williams, op.cit, 516-518. 82 ibid. climate change and human migration: towards more humane interpretation of refugee i gede eka sarjana udayana journal of law and culture vol. 02 no.2, july 2018 239 in relation to human displacement, the fact that most of the world’s refugee population, which has reached 10 million, are accommodated in developing countries has shown that developed countries have the less political will to address this global humanitarian problem.83 success in solving the problems of human displacement in relation to climate change will come from all countries, especially developed countries, assisting the affected people to strive to ameliorate their condition and to regain their basic rights, such as the rights to life, adequate food, clean drinking water, proper education for their children, adequate housing and the best attainable health service. unep in its report has asserted that without a vigorous commitment from industrial countries to implement a policy to significantly reduce co2 emissions released into the atmosphere, within the next decade the problem of climate change and its adverse impacts will worsen.84 it is argued here that there are several reasons why environmental migrants should get the same protection and treatment as other traditional refugees: first, the rights of the affected people have been stipulated in international human rights documents such as the universal declaration of human rights (udhr) and the 1966 international covenant on economic, social and cultural rights (icescr), including the right to life, adequate food, clean water, adequate shelter, health and education. the right to a decent life as a human being is also set in the 1972 stockholm declaration on the human environment, which states: “man has the fundamental rights to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being” secondly, environmental migrants are the victims of human activities, which have caused severe distress. these people have been involuntarily forced to flee their homes in order to find a better place to live. thirdly, states cannot keep ‘burying their head in the sand’ and ignoring environmental refugees simply because there is no accepted international legal agreement or common institutionalized instrument. in fact, the numbers of people affected by environmental distress are increasing, and the adverse impacts of climate change are predicted to be worse in the future. fourthly, a widely accepted international instrument (unfccc) states that the adverse effects of climate change are a common concern of humankind, and therefore urges every country to address this issue, and, in particular, for developed countries to take the lead in assisting developing countries to cope with this problem. 83 unep, ‘human development report 2007/2008: fighting climate change: human solidarity in a divided world’, (2007),8. <http://hdr.undp.org/sites/default/files/reports/268/hdr_20072008_en_complete.pdf;> watch also a talk with dr. jeff crisp, 2011 refugee conference prof jane mc adam in conversation with dr jeff crisp, unswtv, (2011); <https://www.youtube.com/watch?v=xlgbvgstxx0&index=3&list=fliuo-bt1pofp132ee0siywq> 84 unep, ‘the emissions gap report, 2014, a unep synthesis report’; <http://www.unep.org/ publications/ebooks/emissionsgapreport2014/portals/50268/pdf/egr2014_lowres.pdf;see also: ipcc, climate change 2007: synthesis report, (2007); <https://www.ipcc.ch/pdf/assessment-report/ar4/ syr/ar4_syr.pdf> 240 3. conclusion and recommendation some have argued that a specific instrument for regulating environmental refugees will not improve the situation on the grounds that, firstly, most of the movements undertaken by the affected people are internal (within their national territories), and secondly, that it will be highly dependent on the political will of governments to acknowledge them. notwithstanding this, international instruments are important to safeguard the protection of the affected communities from adverse environmental changes and to allow them to maintain a subsistent standard of living. this will ensure that crossborder migration resulting from the environmental catastrophe will not take place in a legal vacuum, and such refugees maintain their fundamental legal rights. there is a very limited number of scholarly articles that present solid argument on narrow interpretation of refugee in the refugee convention. therefore, further research is needed on the implementation of the convention and how the convention will affect decision-makers in dealing with humanitarian problems. as climate change has been closely associated with human activities, specifically, industrialization and the use of fossil fuels, developed or industrialized countries bear a moral and historical responsibility to prevent violations of the fundamental rights set forth in international documents due to climate change. the fact that climate change has played an important role in triggering human displacement, even though it is not entirely the root cause of the migration, means that countries cannot be careless about the fate of the affected community. similarly, it means that environmental migrants deserve protection, and global efforts to acknowledge them. developed or industrialized countries should have a moral and historical responsibility as contributing parties to greenhouse gases. the principle of common but differentiated responsibility, which has been regarded as customary international law, clearly imposes a duty on every state to take on their respective roles in the fight against climate change in accordance with their capacity and capability. this principle should also be seen as putting the same responsibility on each state when the adverse impacts of climate change started affecting other countries, especially countries that contribute the least greenhouse gases. another principle, that is important in determining the responsibility of a state for the impacts of climate change is the ‘no harm rule’, which is basically a set of obligations not to cause damage or harm to other countries as a result of activities undertaken. this principle is closely related to the principle of ‘state responsibility’, which has been widely accepted as a norm of international law. climate change and human migration: towards more humane interpretation of refugee i gede eka sarjana udayana journal of law and culture vol. 02 no.2, july 2018 241 regardless of the highly debatable definition of ‘refugee’ and the fact that environmental refugees are not in line with the international legal framework, an international instrument on the status of those who migrate as a result of environmental stress will be necessary and useful as a preventive measure when such event occurs. however, such an arrangement will be greatly influenced by the commitment and willingness of governments, particularly those of developed countries, which will play a vital role in solving the problem. in fact, while developing countries have contributed the least to the climate changes crisis, if developed or industrialized countries releasing greenhouse gases such as carbon dioxide into the atmosphere at the current pace, developing countries will suffer the most from the crisis. this means that more environmental migrants will be created every year. what is the difference if, in the end, the unhcr asks countries to assist people displaced by climate change? instead, the problem can be made straightforward by acknowledging the status of the people 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