Customary Law Principles Research Articles

Has the National Treatment Treaty Standard Evolved into a Customary Rule of International Law?

The present paper examines whether the consistent inclusion of the National Treatment standard in various BITs has led to the emergence of a customary international law rule of similar content. To analyse this issue, the paper tailors the test established by the ICJ in the North Sea Continental Shelf cases, which examines the process of development of a treaty rule into a customary law rule. The article concludes that the mere presence of the National Treatment standard in numerous BITs does not inherently imply that it has evolved into a customary international law rule. The article argues that this is primarily because the assessment of customary international law necessitates state practice to exist separately and autonomously from treaty practice. Hence, the replication of the rule across BITs alone does not provide sufficient grounds for presuming the existence of a customary law rule. By assessing and tailoring the criteria set forth by the ICJ and considering the scholarly perspectives on this matter, this paper offers an understanding of the conditions required for the transformation of a treaty-based rule into a customary law principle. The aim is to contribute to the ongoing scholarly discourse on the development and identification of customary international law, specifically in the context of investment treaties and the National Treatment standard.

Hak Perempuan Dalam Pembagian Harta Waris Adat Batak Toba (Studi Kasus Putusan Pengadilan No 564/PDT.G/2015/PN MDN)

Introduction: The position of women who are not accommodated in the distribution of inheritance in the Toba Batak Customary, so the authors conducted research with the aim of finding out how women's rights are in the distribution of inheritance in the Toba Batak Customary with the Case Study of Court Decision No. 564/PDT.G/2015/PN MDN and aims to find out the basic considerations judges in deciding cases of inheritance disputes with the patrilineal family system in Adar Batak Toba.Purposes of the Research: The purpose of this study is to discuss how women's rights in the distribution of traditional Toba Batak inheritance.Methods of the Research: This research is a normative juridical research carried out using statutory, conceptual and case approaches.Results of the Research: Women's rights in the division of inheritance in the Toba Batak custom are not accommodated at all because the Toba Batak custom adheres to a patrilineal family system. In the Toba Batak tradition, it is the sons who inherit the inheritance from their parents, so that the position of girls is not respected. In Court Decision No. 564/PDT.G/2015/PN MDN is based on Article 832 of the Civil Code which equates the rights of girls and boys so as to produce fairness decisions without differentiating rights in accordance with customary law principles and provisions in positive law in matters this is the Civil Code.

Analysis of Conflicting Regulations concerning the Food Estate Program and Customary Land in Accordance to Indonesian Customary Law Principles

As a rechstaat, Indonesia has human rights and a law protection guarantee that is regulated in the Constitution of the Republic of Indonesia (UUD 1945). To ensure the protection of the law and human rights, it is necessary to have a legal basis that regulates these matters, including customary rights. The regulations of customary rights are regulated in Article 18B paragraph 2 of the UUD 1945, Law Number 5 of 1960 concerning the Basic Regulation of Agrarian Principles, Law Number 39 of 2014 concerning Plantation, and Law Number 6 of 2023 concerning Job Creation. However, there is a problem in the social field, as happened in Central Kalimantan Province that customary land was turned into a 600-hectare cassava plantation food estate program without involving Dayak indigenous people from planning to implementation. Moreover, Dayak indigenous people do not get any benefits from the food estate program. These reasons are that there are a few legal problems that contradict the food estate program and customary rights.

The Concept of IPR Ownership in the Context of the Copyright Legal System and Indonesian Society’s Cosmology

Ownership is conceptualized as a human right that gives the authority to order something that is owned. As a legal state, Indonesia regulates intellectual property rights, including copyright. In this study, normative legal research is used, which is descriptive-analytical. Copyright is an exclusive right or right owned by the creator of certain information and ideas to reproduce and regulate his work. The concept of ownership in copyright gives creators economic and moral rights automatically protected by the state through copyright law. In contrast, the principle of customary law is the concept of communal ownership. Customary law is more concerned with the interests of society than individual interests. In the cosmology of Indonesian society, most do not recognize individual ownership, but the concept of ownership in the culture of society only recognizes communal property rights or shared property, so the concept of IPR is not known in the culture of Indonesian society.

Detonating the air: The legality of the use of thermobaric weapons under international humanitarian law

AbstractThermobaric weapons cause damage and harm through overpressure and thermal effects, but secondary harm may also occur due to fragmentation, the consumption and depletion of ambient oxygen, and the release of toxic gases and smoke. Several international instruments prohibit or regulate weapons that generate asphyxiating or toxic gases, poison or poisoned weapons, chemical weapons, and weapons primarily designed to be incendiary. Thermobaric weapons are, however, primarily designed for blast and are not specifically covered by, or excluded from, the application of these instruments. The general customary law principles of international humanitarian law that determine the legality of the use of all weapons, including thermobaric weapons, prohibit causing superfluous injury and unnecessary suffering, and the use of indiscriminate weapons. Thermobaric weapons cause severe suffering but will not be rendered unlawful merely because of this effect. These weapons are also not automatically and inherently indiscriminate when used in their normal or designed circumstances. The use of thermobaric weapons, when directed at a military objective, while considering all feasible precautions to protect civilians and civilian objects and the principle of proportionality, will, as a result, be lawful in most circumstances. However, the use of thermobaric weapons should, in a similar manner to heavy explosive weapons, be avoided in urban or populated areas.

ПАРУБОЧІ ТА ДІВОЧІ ГРОМАДИ ЯК ШЛЯХ СОЦІАЛІЗАЦІЇ УКРАЇНСЬКОЇ СІЛЬСЬКОЇ МОЛОДІ (ХІХ – ПЕРША ЧВЕРТЬ ХХ СТОЛІТТЯ)

The article reveals the process of socialization of Ukrainian rural youth in boys` and girls` communities in the 19th and the first quarter of the 20th centuries. Youth communities are considered as associations that were organized on the basis of sex and age and acted on the basis of ethical and legal customs and norms of public life and consisted of boys and girls who had reached marriageable age or were about to reach it. It is emphasized that the category of rural youth of girls and boys of the 19th - the first quarter of the 20th century. was heterogeneous in its composition, since two subgroups were united within its borders - "male and female teenagers" (younger subgroup), who did not yet have the right to marry, and "maidens`" and "boyfriend`s" (the older group), who had already reached marriageable age. The publication highlights the peculiarities of the ritual change of social age status of boys and girls; changes in gender identity manifested in changes in clothing and hairstyle, socio-age terminology; initial procedures that ritually formalized the transition from one socio-age group to another and were evidence of the growth of the social status of young people in the hierarchical social-age system that existed in traditional society: recognition of the rights of young men and women to create a family, participation in family councils, under certain conditions - in village steps, etc. It was highlighted that the formation and activity of youth communities was based on the principles of customary law. Male and female communities had established internal organization, rules of conduct, rights, duties and occupations. It was revealed that youth communities performed a number of important pedagogical functions, in particular, their social and everyday orientation included the following main areas: regulating the relations of rural youth with the parish, the headman, and the landlord (the serfdom in this regard was a kind of executive body); establishment of normal life in the village, settlement of all conflicts that arose between boys and girls and between young people and other residents of the village; participation in the organization of celebrations in the village: church processions, celebration of the temple day and other traditional for the village holidays, etc. Youth communities also had certain labor duties before the village community. Youth communities were mediators between the family and the rural community, which ensured the integrity of the community and the continuity of the transfer of folk-pedagogical experience. Young women and girls acquired personal freedom, rights and status opportunities. The authors come to the conclusion that the existence of youth associations was particularly important from the point of view of the formation of a person as a full-fledged member of the peasant community in accordance with popular ideas about the gender-age principle of organizing social space and the need to prepare for family life, mastering the status roles of married men and women.

Customary Law during the Covid-19 Pandemic: Supporting Local Government's Policy

The covid-19 pandemic has become a national disaster, therefore the participation of all parties is needed in efforts to handle this disaster. Traditional villages with their customary law have a strategic role in handling Covid-19 starting from managing their territory to distributing social assistance. Through traditional village institutions, the Bali Provincial Government uses local wisdom in increasing community participation and institutions to be actively involved in handling activities and overcoming the impact of Covid-19. This study aims to determine the role of customary law to support government policies in handling Covid-19 in Bali. This study is a descriptive study in which the method used is a normative legal research method, using a statutory approach, a historical approach, a conceptual approach, a philosophical approach, and a case approach. The legal materials used are primary legal materials, secondary materials, and non-legal materials. Based on the research conducted, it was found that Balinese customary law plays a role in supporting government policies in handling Covid-19 in Bali because it is in accordance with the philosophy and principles of customary law adopted by the Balinese indigenous people.

Urgensi Pembentukan Peraturan Daerah tentang Perlindungan dan Pengelolaan Hutan Perempuan Teluk Youtefa Kota Jayapura, Papua

This article discusses the urgency of establishing local regulations on the protection and management of women's forests based on traditional wisdom. The type of research used is qualitative with a library approach. Data were obtained from various literature sources relevant to the research topic. Data analysis was carried out through three stages; data reduction, data presentation and verification. Furthermore, the validity of the data was tested using triangulation and discussion techniques. The results of this study show that the mangrove forest area of Youtefa Bay based on customary law principles belongs to women in the local language called "Tonotwiyat". Women's forests are guarded and cared for by women based on traditional wisdom handed down from generation to generation which is a source of local food, a place for social and cultural interaction and even a place for character education for adult women before marriage. The tradition of maintaining and caring for women's forests is now starting to erode along with the destruction of the mangrove ecosystem due to environmental pollution and development activities that are not environmentally friendly. Efforts are being made by the government to rehabilitate mangrove areas that have been converted. As a recommendation, there is a need for regional regulations that are specific to the protection and management of mangrove forests based on traditional wisdom. This is intended so that the mangrove ecosystem remains sustainable, as well as an effort to save and protect the local wisdom of the coastal community of Youtefa Bay as one of the capital of sustainable development.

The role and effect of the Constitution in customary law of succession

Customary law is the original law of the inhabitants of South Africa; however, it has always been treated as the stepchild of the legal system. The new constitutional dispensation requires that all laws be measured against the Constitution of the Republic of South Africa, 1996. This means that any law that is inconsistent with the Constitution is regarded as being invalid. Over the last few years, courts have had several cases, which have required them to test the constitutionality of some customary law principles and develop customary law in a manner that aligns it with the Constitution. However, we have witnessed a reluctance to develop customary law from the courts, instead, the laws which could have been developed were declared invalid. The focus of this paper will be to interrogate the role and effect of the Constitution in the administration and application of customary law of succession. Furthermore, to justify why we hold the view that customary law is a stepchild of the South African legal system post the democratic dispensation, this is attributed to the fact that most cases that involve the customary law of succession still leave many women in dire social and financial situations where the head of the family dies due to the distorted prevailing principle of male primogeniture.

Local Wisdom Values on Customary Law Norms of the Jambi Malay Seloko Adat

This study aims to describe local wisdom values on customary law norms of the Jambi Malay oral tradition containing moral guidance named Seloko Adat. This study applied descriptive qualitative design. Data were collected through archival studies on Seloko Adat and interviews. Content analysis integrated with structural hermeneutics were applied to the data analysis. Findings of this study suggests that Seloko Adat contains guidance on customary law and were loaded with local wisdoms values which depict the five basic principles of customary law, that are: 1) customary law which is derived from the Holy Qur’an and Hadith; 2) customary law which is based on the old traditions which is derived from empirical evidences about truth or goodness to protecting the society; 3) customary law based on justice and fairness; 4) customary law about adhering to the truth; and 5) customary law based on deliberation and consensus.

A New Legal Framework for the “Ownership” of a Deceased Person in a Legally Plural Ghana

Any funeral in Ghana is a family business. Families hold elaborate ceremonies to mark the death of their deceased family members. Strict fulfilment of the duty to bury is said to ensure the seamless transition of the deceased from this life to the next. In Ghana, the extended family of the deceased has custody and control over the dead body for the purpose of burial. However, the heterogeneous nature of modern Ghanaian society, the rise of the nuclear family, and modern socio-legal values have increased disputes over the dead body, often between the extended family and the nuclear family. Against the background of Ghana’s pluralistic legal system, we investigate the context in which such disputes take place and how the legal system responds. We draw on field interviews to critically compare the living customary law with Ghanaian common law, judicial customary law, statutory law, and the experience of other jurisdictions. We note that the customary law principle of being owned by one’s extended family is well established, usually overriding other systems of law. Nonetheless, we argue, drawing on the experiences of other African countries, that the nuclear family should be given greater opportunities to participate in decisions relating to the burial of the deceased. We propose a framework that reflects the needs and aspirations of both kinds of families.

Legal monitoring of the formation and development of positive law (theoretical-historical aspect)

The aim of the research is to identify the main stages that the current law passed in the course of its evolution. And focus attention that in the beginning of the development of humanity law existed in the form of «custom» (the customary normative system), from which in the process of its development formed a modern «current law» (positive law). Which is characterized by complex hierarchical connections and special rules of acceptance. The research methodology is based on the principles of historicism, systemicity, science, interdisciplinary. The following general-historical methods have been used: historiographical analysis, historical-genetic, terminological analysis, comparative, typological. The scientific novelty of the basis of a wide range of published and unpublished researches of in the sphere of the principles of the formation of law we have systematized and substantiated the formula of cause-effect relationships, which ultimately made a decisive influence on modern positive law. Conclusions. The current lаw, as well as the formation of the state, has undergone a significant historical path of its formation and development from the primitive custom to the established positive law of the state. At the same time, in the early states, the customary way of legal regulation prevailed, even under persistent and ever- strengthened attempts by public authorities to influence the legal life of the contemporary society and dominate it through the judicial and administrative apparatus. The very origins and principles of the current legislation can be found in the social regulation of the primitive society, which was carried out, first of all, with the help of customs, taboos, morals, etc. At the same time, the main principles of customary law as the first form of positive law were mythological and religious principles, which also evolved and were supplemented in the process of further development of its forms. The origins of the current legislation, which reflect the historical beginning of its phased formation and development, are different in certain time and social terms. As for the current lаw, it arose in the conditions of gradual and long-term formation of socially heterogeneous society, as well as development, first of all, socio-economic relations. At the same time, the historical conditions of the emergence of the officially established modern positive law, that is, the law of law, are formed, including, and through the prism of social interests, layers close to the state apparatus. These circumstances made it possible to make such managerial decisions that would better protect their property rights and opportunities through the prism of the formation of positive law, which has a universal character for the whole society. Key words: society, state, positive law, absolute law

PITI MARANGGANGU (KAWIN TANGKAP) DALAM PERSPEKTIF HUKUM (STUDI KASUS DI PULAU SUMBA TIMUR, NUSA TENGGARA TIMUR)

Sumba Island holds a lot of local wisdom. One of the local wisdom is Piti Maranggangu. Piti Maranggangu is a catch / take in meetings that often occur in public places or public places, such as in traditional markets, places of customs activities (traditional parties), on the street, at home and even planted. The purpose of this study was to find out and understand Piti Maranggangu from the point of view of Customary Law and Law No. 1 of 1974 on marriage. The type of research used is socio-legal research with a research location in Sumba Island, East Nusa Tenggara. The results showed that Piti Mara interfered with a review of the principles of customary law that piti maranggangu practices are recognized in the sumba island community and is a form of honest exogamous mating mating system. Referred to as honest exogamy because the edited woman has been positioned as a surrogate in the clan. While Piti Maranggangu in the perspective of Law No. 1 of 1974 can be concluded that there are 2 (two) conditions violated in the marriage process, namely substantive conditions that there is no consent from the bride, then the age of the edited bride is underage (under 19 years). As a result of violating these substantive conditions, Piti Maranggangu can legally be void by law.

PENYELESAIAN SENGKETA PERBATASAN DARAT DI SEGMEN BIDJAEL SUNAN OBEN ANTARA INDONESIA DAN TIMOR LESTE

This study aims to look into how land border disputes between Indonesia and Timor Leste along the Sunan-Oben Bidjael Segment have been settled using international law. An official editor is employed in this normative study. The study’s findings demonstrate that a Joint Border Committee between Timor Leste and Indonesia has been established to serve as a forum for settling land border disputes. Later, This team then changed its name to The Treaty of 1904 and the Permanent Court of Arbitration of 1914 (PCA 1914) have been chosen by the Technical Sub-Committee on Boundary Demarcation and Regulation (TSC-BDR) as the border demarcation legal framework. Article 8 of the 2005 Provisional Agreement states that local communities, in this case indigenous peoples and traditional leaders at the borders, are given the opportunity to participate in the dispute resolution procedure that takes place on the border between the two countries by promoting nonviolent and peaceful means. (b). It is evident that the systems of customary law that apply to the residents of East Timor (Timor Leste) and West Timor (Indonesia) are the same given that these two communities share a shared sociocultural background. Land conflicts, the boundaries of a community’s territory, and the ability of community leaders to engage in direct discussions to resolve these issues can all be governed by the basic principles of customary law.

Analysis of Positive Legal Sources on the Implementation Bugis Customary Sanctions of Makassar for Silariang Actor

In this study, the researchers analysed the phenomenon of Silariang (embarrassed) practice in the life of the Bugis Makassar society, which was considered unsuitable with the values of traditional life. This research aims to find out the form of Silariang according to Makassar Bugis customary law and implement a customary penalty for Silariang perpetrators. The research method used is juridical-normative with a statutory approach and a conceptual approach. The results of this study indicate that, according to Makassar Bugis customary law, Silariang or elopement is found in the Makassar community and can be found in other ethnic traditions outside Makassar. What makes them different is the punishment applied to the two perpetrators. For other ethnic groups, the penalty is usually not so severe. However, for the Makassarese, it usually ends with the murder of the perpetrator. The implementation of this customary law punishment is in the form of humiliation or persecution, expulsion from the village, and even the death penalty if the violation is very serious. The only one who can carry out the punishment is the family who does the Silariang. Also, the results of other studies illustrate that the embodiment of customary law principles as part of a positive legal source in Indonesia is highly recommended. Moreover, in the context of upholding morality, cultural nobility, honesty, and justice, it should avoid legal dilemmas to enforce the law against the law. After that, all decisions of legal action are aimed at creating public order, balance, and peace. Legal decisions based on the paradigm of customary law in the Silariang can cause feelings of shame, hurt, and revenge, ending in revenge efforts.

Model Pengelolaan Harta Warisan Lahan Pertanian Dalam Perspektif Fikih Muamalah

This study aims to determine the form of application of Islamic Agricultural Land Inheritance Management in Muamalah Economic Fiqh Perspective. The research model of this research is qualitative, with a muamalah fiqh approach. The method of extracting data in this study was carried out by interviewing and observing the Muslim community of the Simalungun Batak Tribe in Tebing Tinggi District, Serdang Bedagai Regency, North Sumatra. The application of this management is analyzed using the customary inheritance system law, which refers to Pancasila. The results showed that the management of land derived from cultural heritage objects can be carried out in the form of Muzar'ah, Mukhabarah and Musaqah and in accordance withthe principles of customary law in Indonesia. Keywords: Management, Assets, Inheritance, Agriculture, fiqh, Muamalah

Fungsi Kearifan Lokal Dalam Menjaga Kelestarian Lingkungan Hidup Di Desa Penglipuran

This article examines the function of local wisdom of the Penglipuran Village community in preserving the environment in the insistence of modern life. Data obtained by in-depth interview techniques, observation, and by conducting a literature study. The discussion uses the functional structural theory from Talcot Parsons which states there are four important functions needed by all systems, namely adaptation, goal attainment, integration, latency. The analysis shows that the Penglipuran community can still survive to maintain local wisdom in terms of environmental conservation because traditional villages as a system function properly good. Hulu Apad Adat Elders and Adat leaders (Bendesa Adat), as implementers and enforcers of customary law both awig-awig and perarem who regulate environmental issues related to Hindu religious teachings, Tri Hita Karana, which regulates harmonious relations with God, fellow human beings, and natural environment. The effort made by the Penglipuran community to maintain local wisdom and at the same time be able to adapt to modern life is by maintaining the pattern of values ​​inherited from their ancestors. In the field of pawongan, the community maintains local wisdom to maintain harmony in neighboring and community life, among others; maintaining the existence of a hatchery or a road that gives access to neighboring yards, maintaining the existence of blended corals to avoid polygamous marriages which are believed to cause disharmony in family life, and to strengthen community social relations in addition to cooperation in carrying out mutual social activities and also cooperation in carrying out religious ceremonial activities, there is also local wisdom of nyangkepang sager. Sangkep or meeting with the tradition of eating together with a menu of rice with a side dish of salted fish (sager) added with grated coconut. In addition to fostering familiarity with fellow community members, it also means teaching a simple lifestyle that is different from the consumptive lifestyle of modern times. The preservation of traditional values ​​is passed on by parents to the next generation from an early age. Likewise, in the field of palemahan, environmental cleanliness, forest preservation is still maintained by protecting it through the enforcement of customary law whose sanctions are linked to beliefs or religions, namely Hinduism. Actions that cause damage to the environment are believed to be sinful acts. Adat community obedience to comply with these Customary rules when analyzed with the theory of validity and legal enforceability of Meuwissen. that the principles of Customary Law meet the requirements; social or factual enforceability, juridical enforceability and moral enforceability.

The Effectiveness of Customary Law to Protect Natural Resources in The National Park in Central Sulawesi

Most of the local communities living around the forest fulfil their daily needs, depending on the forest resources, but the government and even global policy have enacted the forest as a protected area or national park. The purpose of this research is to understand and explain the principles of customary law concerning the natural resources that exist in the national park, and to determine the effectiveness of customary law in protecting these natural resources. The research method applied to explore community values and attitudes is socio-legal. The research revealed society's habits through exploration, and norms and the rule of law are embraced. Some principles of customary law on natural resources include palia (taboo) and ombo (prohibition) pertinent to natural resource conservation. Both of these principles are adhered to and have been hereditary. The values on utilising natural resources are still complied with (effective), although state law takes a formal approach for any infringement surrounding the national park. However, customary law principles still always need to be a source for environmental or related law.

Historical and legal aspect of the formation and development of positive law

Description: The article is aimed to attract the attention of not only theorists, but also historians of the study of law to the fact that the latter began its evolution from «custom». It is the latter that is based on worldview recognition and submission. It was closer to justice, and therefore met the ideas of the ideal of the law as the supreme good; it provides peace, order and mutual understanding. Methodology: The research methodology is based on the principles of historicism, systemicity, scientific character, interdisciplinarity. The following methods were used: historiographic analysis, historical and genetic, terminological analysis, comparative, typological. Based on a wide range of published and substantiated studies in the field of principles of the formation of law, the authors systematized and scientifically proved the formula of causal relationships, which ultimately made a decisive influence on the development of positive law. Results: According to the authors, the current legislation, as well as the formation of the state, has passed a significant historical path of its formation and development from the primitive custom to the positive law sanctioned by the state. Moreover, in the early states, custom prevailed even with persistent and constantly strengthened attempts by public authorities to influence the legal status of society and dominate it through the judicial and administrative apparatus. This, in turn, ensured a gradual combination of various forms of legal regulation originating from society and the state. The very origins and foundations of the current legislation can be found even in the social regulation of primitive society, which was carried out with the help of customs, taboos, morality, and the like. Moreover, the basic principles of customary law as the first form of positive law were mythological and religious principles, which were also developed and supplemented in the further development of its forms. The sources of the current legislation which reflect the historical beginning of its gradual formation and development are different in certain spatial and social dimensions. As for the current legislation, it arose in the context of the gradual and prolonged formation of a socially heterogeneous society, as well as the development of social and economic relations. At the same time, the theoretical and historical conditions for the emergence of officially established modern legislation are formed through the list of social interests of strata close to the state apparatus. These circumstances made it possible to make managerial decisions that would better protect their property rights and opportunities, and helped them in the institute of positive law, which was generally binding for the whole society.

Can Panels Save WTO?

WTO is facing an unprecedented crisis. Multilateralism and international cooperation have crashed, not only because of a virus. Can WTO panelists don the strait jackets designed by the ‘automatic’ dispute settlement system of a non-supranational trade organisation, in order to find a ‘positive solution’ but without rulemaking? This paper argues that in cases in which trade rules play a lesser role, WTO can rule against globally coherent solutions. The present WTO impasse offers a surprising avenue for panelists and arbitrators, to apply peremptory international non-trade law and customary law principles (ius cogens). This window is open right now – thanks to the automatic adoption of adjudicator findings, such as, what is known as a non-violation of WTO rules. Emerging case law and the work of forward-looking academics show how to address measures with deleterious social and eco-dumping effects, unacceptable to the body politic at large. Complaints against trade-distorting human and labour rights violations, and perhaps even against measures causing excessive global warming, could lead future adjudicators to answer the repeated call of the presently defunct Appellate Body for a ‘holistic’ reading of WTO rules, across the fragmented international legal framework. WTO’s reputation would regain lost ground where it matters, namely in constituencies looking for better international governance and a level-playing field.