Customary Law Research Articles

The Epistemology of Land in an Adat Perspective: Philosophical Aspects of Human Relations With Land in the View of Mohammad Koesnoe

AbstractThe spirit of agrarian law reform in Indonesia has been proposed since 2001, but to date it has not been realized. On the one hand, the existence of adat law as the basis for the formation of national agrarian law as stated in the UUPA needs to be questioned again, whether it actually uses adat law as its raw material, or whether it still uses colonial law. The discussion in this article aims to contribute ideas related to the reform of agrarian law in Indonesia which is based on customary law regarding land. The direction of this reform is based more on the views of adat law expert, Mohammad Koesnoe. The type of research in this article is legal research using a conceptual approach and also a statute approach, and analyzed using historical, systematic and grammatical interpretation methods. The research results show that customary law is still relevant to use as a basis for legal reform in Indonesia while still referring to the rechtsidee of the Indonesian nation as stated in Pancasila. Therefore, agrarian reform in Indonesia should refer to the original law of the Indonesian people, namely adat law.Keywords: Adat Land Law; Agrarian Law Reform; Soil Epistemology.

Dispute over Sasak Customary Inheritance Rights and the Evolution of Granting Inheritance Rights to Girls

A central concern in disputes concerning customary inheritance rights within the Sasak community of West Nusa Tenggara, Indonesia, pertains to the allocation of inheritance rights to daughters. This article examines recent modifications to the Sasak custom of granting inheritance rights to females, in addition to the historical and cultural context surrounding these rights. In accordance with empirical normative research, the author demonstrates that traditional inheritance practices are shifting to grant daughters inheritance rights. Multiple factors, including modernization, the legalization of gender issues, and social demands, support this. The complexities of granting females inheritance rights in traditional Sasak society and the resulting social and cultural transformations in the region are examined in this study. In Sasak customary law, the following elements contribute to disputes over the inheritance of girls: 1). Religious factors impede the development of customary law and legal choice ("in every legal choice, people will choose the law that is most profitable"); 2). Social relations and justice factors, as forces suppress every old law and switch to new ones; and 3) Factors of justice and social relations. 3. Legal subsystems and structural factors, which are an integral part of every legal system.

Proving Modes of Criminal Liability in Prosecuting International Crimes: An Analysis of International Crimes Tribunal Bangladesh

is study examines how the International Crimes Tribunal Bangladesh (ICTB)- a domestic criminal court, is prosecuting and punishing international criminalities perpetrated in the Bangladesh Freedom War in 1971 through the flaw laws in proving the modes of individual criminal responsibility that hinder securing criminal justice to the parties. By applying a qualitative approach, this study firstly scrutinizes the modes of criminal responsibility in the ICTB’s Statue-the International Crimes Tribunal Act 1973 and whether such notion is supported by international customary law in 1971 and 2010. Secondly, this study outlines different modes of liabilities, such as Joint Criminal Enterprise and Superior Liability, that are extensively applied by the jurisprudence of the ICTB in more than 51 individual cases to date. Lastly, as the originality of this research, it advances ‘Two Proposals’ that need to be executed by the ICTB to secure criminal justice to the relevant bodies in improving its legitimacy to the global criminal justice system. Then, the study concludes that in any failure to uphold the customary law requirement of proving the Joint Criminal Enterprise and the Superior Liability as the particular modes of criminal liability, the tribunal will lose its legal credibility.

SOCIAL CONTROL OF TRADITIONAL LEADERS: EFFORTS TO MAKE TRADITIONAL VILLAGES AS A ROLE MODEL IN CRIME PREVENTION (STUDY IN CENTRAL KAMPUNG TRADITIONAL VILLAGE, SIAK DISTRICT)

The purpose of carrying out this research is to seehow PatternSocial Control of Traditional Leaders: An Effort to Realize Traditional Villages as Role Models in Crime Prevention (Study in the Traditional Village of Kampung Tengah, Siak Regency)whether it has gone well based on an approach to social values, religion and customary law and culture in accordance with the social and cultural conditions of indigenous communities in the Kampung Tengah Traditional Village, Siak Regency.The method used in this research is a qualitative method with a descriptive approach using ethnographic analysis, where in a research activity more comprehensive, valid, reliable and objective data will be obtained. Data sources were obtained by taking 4 data collection techniques, namely by indexicality, reflexivity, and contextual action as well as taking documentation. From the results and discussion, it can be concluded that the pattern of social control that has been implemented by traditional leaders in Kampung Tengah to date is quite good, this can be seen in the aspect of prevention, efforts to overcome social problems and anticipate problems of deviant behavior and delinquency in children and adolescents by strengthening application of religious values, internalization of traditional, social and cultural values ??as aspects of prevention by increasing the Human Resources of children and adolescents (in the sense of having to go to school). It is not enough to stop there, building supporting facilities to stimulate what children and teenagers understand needs to be encouraged and executed by the village government and traditional leaders so that it is always directed towards useful and positive activities.
 Keywords:Social Control; Traditional Figures; Traditional Village; Role Models; Crime Prevention.

Examining the complexities of binding international law on international organisations

PurposeThis paper aims to discuss the positioning of international organisations (IOs) in the realm of international law. It proposes a more robust approach, arguing IOs have legal obligations akin to states to the extent which could be fulfilled by them. This paper suggests making IOs parties to international treaties like the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic Social and Cultural Rights (ICESCR) and Geneva Convention 1949 to codify their international responsibilities. In addition, it proposes amending multilateral treaties to grant IOs membership and create binding legal obligations for them, thereby enhancing the overall legal framework for IOs.Design/methodology/approachThe paper opted for qualitative analytical approach of research by referring to international treaties and scholarly papers.FindingsThe authors have evaluated the bindingness of international law on IOs. The authors argue that jus cogens and customary international law are equally binding on IOs. However, treaties could only be binding on IOs to the extent of their consent. The authors have assessed prior violations of IOs. The authors argue that, to prevent such violations by IOs, creating obligations is the first step. Second, amendments are required in the existing international treaties that reflect the foundations of international humanitarian and international human rights law like the Geneva Convention 1949, ICCPR, and ICESCR, to permit IOs to join these treaties, resulting in binding international legal obligations.Research limitations/implicationsThe most prominent assertion of this paper is that IOs as subjects of international law are bound by the principles of international law, including treaty law with consent, customary international laws, general principles of law and peremptory norms. To fulfil these obligations, a regime needs to be introduced wherein amendment is made in treaties to make IOs parties to them and structuring the law on responsibility for IOs. Considering the multifaceted nature of IO, the role it performs in contemporary times requires them to be bound by rules of international law just like states. There is a need to settle their position in global governance and give them more teeth to understand and fulfil their duties to ensure smooth functioning in the long run.Originality/valueThe paper fulfils an identified gap in the positioning of IOs under the international law.

Ex Post Facto Prosecution of International Crimes in the Bangladesh War Crimes Tribunal: An Issue of Constitutionality

Bangladesh War Crimes Tribunal-a domestic criminal court is currently prosecuting the offenders of atrocious crimes perpetrated in the Bangladesh War of Independence in 1971. Though the atrocious offenses took place in 1971, the International Crimes Tribunal (ICT) Act 1973 was decreed by Bangladeshi Parliament in 1973, and the Tribunal was established in 2010; hence the ICT Act 1973 is considered as an ex post facto (retrospective) legislation because it has been promulgated after the commission of the crimes. Therefore, this study first analyzes the importance of ex post facto law’s prohibition in customary international law. Secondly, the study highlights how the 1973 ICT Act applies to prosecute the ICTB’s defendants retrospectively by amending the constitution of Bangladesh. Thirdly, it examines the ex post facto legislation’s application in the Bangladesh Tribunal and the issue of constitutionality because rules on the prohibition of retrospective legislation is one of the fundamental rights of every citizen that need to be safeguarded by every constitution of civilized nations. Lastly, this study's originality proves that ex post facto law’s application in the ICTB is unconstitutional. Then, this research paper concludes by inferring that the government of Bangladesh needs to amend the constitution to prohibit the ex post facto law’s implementation through the Tribunal that will enhance the legal acceptability of the War Crimes Court because the recent Criminal Court in question is operating under the Bangladeshi government.

As A Result Of The Laws Of Buying And Sale Of Used Land Of Eigendom State Which Is Conducted Under Hands

The purpose of this research is to analyze the legal consequences of a land sale and purchase agreement under a former eigendom right (customary law) based on customary law and Government Regulation Number 24 of 1997 concerning land registration. The study also aims to construct the procedure for land registration applications on the former eigendom right based on current applicable regulations. This research adopts a normative legal research approach with legislative and conceptual approaches. The results of the research indicate that a land sale and purchase agreement under a former eigendom right cannot be registered with the land office as the institution issuing land certificates, even though the agreement is considered legally valid under customary law because it adheres to the principles of real, cash, and clear. The land office accepts the application for registration of land under the former eigendom right based on the regulations, namely the Minister of Agrarian and Spatial Planning/Head of the National Land Agency of the Republic of Indonesia Regulation Number 18 of 2021 concerning Procedures for Determining Management Rights and Rights to Land, Minister of Agrarian and Spatial Planning/Head of the National Land Agency of the Republic of Indonesia Regulation Number 3 of 2020 concerning Procedures for Determining and Registering Rights to Land Formerly Owned by Individual Citizens of the Netherlands or Legal Entities Owned by the Netherlands, Minister of Agrarian and Spatial Planning/Head of the National Land Agency of the Republic of Indonesia Regulation Number 16 of 2022 concerning Delegation of Authority for Determination of Land Rights and Land Registration Activities, and Minister of Finance Regulation Number 31/PMK.06/2015 of 2015 concerning Settlement of Former Foreign/Chinese-Owned Assets.

Peranan Lembaga Adat Dalam Penyelesaian Delik Adat Pada Masyarakat Di Desa Toruakat Kecamatan Dumoga Kabupaten Bolaangmongondow

The aim of this research is to find out the form of customary law that is resolved in customary justice in the Deisa Toiruakat community, Dumoiga subdistrict, Boilaang Moingoindoiw district and to find out the legal process of customary law in Deisa Toiruakat, Dumoiga subdistrict, Boilaang Moingoindoiw district. The Meitoidei Peineilitian that is used is a combined type of research between Noirmative Huikuim Peineilitian and Eimpirical Huikuim Peineilitian. Noirmative-Eimpirical Huikuim Research is a type of research theory which in this case combines noirmative legal science which is coincided with the addition of data or empirical science. The research results obtained by the customary settlement process in Toruakat Village do not violate existing legal norms in Indonesia because the Guhanga Lipu (Traditional Institution) of Toruakat Village and customary courts are recognized by the Government both through laws, regional regulations and village regulations. The conclusion is that there are differences between the traditional regulations of Toruakat Village and the practice of carrying out customary trials that are carried out, because the sound of the articles mentioned in the trial process is different from the sound of the articles in Toruakat Village Regulation Number: 01 of 2020 Concerning the Customary and Customary Procedures of Toruakat Village and the number of sanctions imposed This also differs from the provisions for giving sanctions in the village regulations and in the research process the researcher found that indeed the traditional council did not comply with the traditional village regulations of Toruakat Village, they only relied on knowledge from their parents and from books that their ancestors had left to them.

PERAN HUKUM ADAT DAN HUKUM ISLAM DALAM HUKUM PERDATA DI INDONESIA

The character of customary law and Islamic law on Indonesian civil law provides a rich backdrop for the cultural and religious values that form the country’s legal framework. Customary law, with roots in local traditions, presents local wisdom principles integrated into civil regulations, while Islamic law provides a deep normative dimension based on religious teachings. These two systems contribute to civil law in Indonesia, creating a unique and complex legal foundation that combines cultural heritage and religious values.

Local Wisdom Through Online Short Story Literacy as a Means of Marine Conservation

On the one hand, the condition of our marine ecosystem is degraded. On the other hand, the existence of social changes in society has caused local wisdom to almost be forgotten by the history of its existence. Therefore, this study aims, namely: 1) to describe the problem of damage to marine ecosystems in Jemmy Piran's four short stories, and 2) to describe the local wisdom in the short story by Jemmy Piran as an alternative for marine conservation. This research used qualitative type with descriptive method. The focus of the research is the problem of damage to marine ecosystems, local wisdom, and marine conservation alternatives in the short stories studied. The theory used is the theory of literary ecology, local wisdom theory, and concepts related to marine conservation. Sources of research data, namely four short stories by Jeremy Piran which can be accessed online via the web ruangsastra.com. The research data are sentences or expressions in the short story that show the problem of marine damage, local wisdom, and marine conservation alternatives in the short story. The analysis technique used is content analysis. The results of the research are: (1) the issue of marine damage due to trash, trawling, and the use of fish bombs; (2) local wisdom found data regarding: 1) ethics totaling 3 data; 2) customary law totaling 6 data; 3) trust totaling 33 data; and 4) the norm is 5 data.

Иммунитеты должностных лиц государств от иностранной уголовной юрисдикции: обзор позиций государств

Following the recent changes in the paradigm of the immunity of State officials within the customary international law, the article analyzes the submissions of States to the UN International Law Commission connected to Draft articles on the immunity of officials from foreign criminal jurisdiction. Based on national legislation and jurisprudence provided by States, an assumption is made about the possible universal scope of the Draft Articles, as well as an assumption about its applicability to the Russian criminal procedure.

Revitalizing the International Law Discourse on the Prohibition of Maritime Piracy: Voices from International Law Commission’s Work on Peremptory Norms of General International Law (Jus Cogens)

The International Law Commission (ILC) is tasked with the codification and progressive development of international law. Recently, the ILC submitted to the United Nations General Assembly (UNGA) in its 73rd session ‘Draft Conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens)’. The report holds significance as the concept of the jus cogens has been shrouded in mystery since its inception in the Vienna Convention on the Law of Treaties (VCLT) in 1969. The Draft Conclusion 23 (non-exhaustive list) identifies eight norms (annex) fulfilling the requirement of jus cogens. The ILC clearly states that “…the inclusion of the list in the annex in no way precludes the existence of other norms that may have a peremptory character or the emergence of other norms in the future having that character.”[1] Thus leaving space for the inclusion of fresh norms through subsequent studies. Nonetheless, the ILC provided the techniques to identify peremptory norms under Draft Conclusions 4 to 9. Through this article, the author argues that the prohibition of piracy has matured into a jus cogens norm. This is done by applying the techniques formulated by the ILC in its recent report. Although there are several writings on the prohibition of piracy as customary international law, it has received scant attention in the context of the jus cogens, and the author intends to fill this lacuna. This study assumes relevance as States increasingly adopt domestic legislation to combat piracy.

Penyelesaian Sengketa Kewarisan Menurut Peraturan Perundang-Undangan Di Indonesia

Inheritance occurs when the owner of the asset dies and there is a process to determine how the asset will be distributed or transferred to heirs or other legal parties. The inheritance process is often governed by inheritance laws which can vary between countries, regions, or cultures. Inheritance law determines who has rights to inherited assets, in what proportion, and under what conditions. This can include direct heirs such as children, wives, husbands, or more distant heirs such as grandchildren, parents, siblings, and so on. Inheritance law in Indonesia is based on a mixed legal system that combines elements of customary law and civil law. In 1987, the Indonesian government passed Law Number 5 of 1960 concerning Basic Regulations on Agrarian Principles, which regulates land and inheritance issues. Then, in 2010, Law Number 12 of 2011 concerning the Establishment of Legislation concerning Inheritance in Indonesia was issued to further open up inheritance law in this country. The aim of this research is to explain the settlement of inheritance according to laws and regulations in Indonesia. This research uses descriptive research, namely research that describes or explains the problems discussed using a juridical-empirical approach. The results in this research Law Number 12 of 2011 were used to form further legislative regulations regarding inheritance in Indonesia. This provides a legal basis for regulating inheritance law in that country. This law regulates all aspects related to inheritance, including procedures, distribution rules, and all related matters which include the rights and obligations of heirs. The role of notaries in resolving inheritance in Indonesia is that notaries often act as custodians of legal documents, including inheritance deeds, wills and other related documents. This ensures the security of the document and makes it easy to access if needed in the future.

The Customary Law Value Approach “Dalian Na Tolu” in Achieving Justice in Resolving Medical Disputes in Indonesia

In the current system for resolving medical disputes in Indonesia, there is a distortion of the principles of justice outlined in Pancasila, the philosophical foundation of the nation. One alternative for achieving fair resolution of medical disputes in Indonesia is through the Dalihan Na Tolu customary law system, known for its excellence in maintaining family bonds and resolving conflicts. This research method employs a socio-legal approach, including anthropological, legislative, and case-based approaches. The findings of this research indicate that: First, the concept of Dalihan Na Tolu for the Tapanuli community can be understood as a legal system, consisting of three elements: mora, kahanggi, and anakboru. Second, several cases of medical dispute resolution in Indonesia, such as the “Case of Dr. G,” “Case of Dr. Ayu and others,” “Case of Dr. Heryani,” and “Case of Dr. Setyaningrum (which led to the establishment of the Indonesian National Health Legal Awareness Day),” show that the Indonesian health legal system is not in line with Indonesian justice values, resulting in 'defensive medicine.' Therefore, the justice values of “Dalihan Natolu” can be considered an alternative in achieving a fair medical dispute resolution system in Indonesia. Keywords: Customary Law; Dalihan Natolu; Medical Dispute Resolution; Justice.

Penyelesaian Konflik dengan Mediasi dan Rekonsiliasi dalam Kehidupan Transmigran Jawa melalui Sanksi Adat Masyarakat Islam di Tanah Gayo

This research discusses conflict resolution in the lives of Javanese transmigrants in the Paya Tungel Village, Jagong Jeget district, through the mediation of the Jagong Jeget district, which depends on the customary law applied by the indigenous population in Gayo land. In the customary law of the Islamic community in Jagong Jeget, conflict resolution involves the role of Tuha Peut (Village Government). A descriptive qualitative research method was used to obtain in-depth explanations through four informants who are Tuha Peut (Village Government) in Paya Tungel Village. The results show that conflict resolution in Paya Tungel uses mediation, reconciliation, and sanctions/laws to deter perpetrators, as well as guidance by Tuha Peut (Village Government) if the problem cannot be resolved within the family. Ralf Dahrendorf suggests mediation and reconciliation methods in resolving conflicts, as well as through compromise (Consensus) by recognizing differences in interests and seeking common ground acceptable to all parties involved.

State Silence as Acceptance: A Presumption and an Exception

Abstract This study considers State silence which may entail acquiescence and can thus contribute inter alia to the formation of historic rights, the identification of customary international law, and the interpretation of treaties over time. Relying on the historical understanding of acquiescence in British and francophone literature, it argues that there are probability and normative justifications for establishing acquiescence as a ‘presumption of acceptance’ in international law, and that these considerations have influenced the modern international law understanding of acquiescence as an exceptional occurrence subject to stringent qualifications.

From treaty to custom: Shifting paths in the recent development of international humanitarian law

AbstractFrom 1864 to the 1970s, international humanitarian law (IHL) changed through the path of formal treaty revision. Since 1977, however, purported changes to IHL have come not from treaty making but from interpretation, particularly through claims about the attainment of customary status by existing treaty rules. This article explains this shift as the result of the attitudes and choices of key IHL stakeholders under the changed conditions of post-Second World War multilateralism. It argues that the turn toward customary law claims-making was a reaction to the negotiation politics and contested outcomes of the 1977 Additional Protocols (APs) to the Geneva Conventions. After 1977, leading actors looked to custom as a means of arresting or encouraging legal change. The resulting, much-expanded IHL has proved influential and authoritative, even if its precise degree of acceptance by states remains unclear.

Kaili Tribe Criminal Dispute Resolution Process from the Perspective of Customary Law in Central Sulawesi

This research discusses customary law in Indonesia which is pluralistic because it reflects the diversity of tribes and ethnic groups. Customary law is still relevant and applicable in the life and culture of Indonesian society. Customary law as positive law has a special characteristic, namely that there is little written statute, despite its value applying in society. This research is descriptive in nature using normative analysis, literature studies, and field surveys. The research results show that customary law has a position that is recognized in statutory regulations, including the 1945 Constitution, the Human Rights Law, and the Draft Criminal Code. The implementation of traditional law is elucidated through the Kaili customary justice process in the Central Sulawesi region, with the stages of decision-making and the types of sanctions that can be given.

Minangkabau Customary Law as a Foundation and Perspective for The Formation of The National Legal System

The purpose of this study is to examine the role of Minangkabau customary law in shaping the country's legal system and its potential contribution in creating social justice, maintaining cultural diversity, and strengthening regional autonomy. This research method used is literature analysis using relevant primary and secondary sources such as legal documents, academic works, and practical experience in the application of Minangkabau customary law. The results of this study show that Minangkabau customary law includes interrelated principles such as deliberation and consensus, gon royong (community cooperation), and restorative justice. The principles contain universal values that can be applied and integrated into the broader national legal system. In the context of building a state legal system, Minangkabau customary law is used as a source of inspiration for the development of laws that serve the interests of local communities, protect individual and collective rights, and maintain a balance between national and local interests. In addition, Minangkabau customary law has the potential to preserve cultural diversity in Indonesia. In the era of globalization that prioritizes cultural homogenization, the application of Minangkabau customary law can provide a strong foundation for the development and maintenance of cultural diversity of the community at the national level. Through an approach that respects and recognizes cultural differences, a country's legal system can be a tool for strengthening cultural identity and ensuring the sustainability of valuable cultural heritage

Justice and Utility in the Settlement of “Klacht Delict” through Mediation: Concept and Impact in Aceh

This article examines the process of settlement of criminal cases of whole complaints resolved in Aceh through mediation. The settlement of “klacht delict (delik aduan)” cases in Aceh is practiced in the customary law society by directing the Qanun Aceh. The main focus of this study is the process of its completion, the legal effectiveness of the concept of mediation, as well as consideration of aspects of the legal purpose of the mediation process. This study uses empirical juridical methods which are analyzed using a restorative justice approach and legal sociology. Data was collected by conducting in-depth interviews and document studies. The results of the research showed that the criminal complaints settled by mediation with the non-litigation pattern practiced by law enforcement and the community in Aceh have met the legal objectives, including the aspects of utility and justice. This model of settlement has met the requirements of usefulness and justice for perpetrators and victims and is considered complete, so the case has not proceeded to the stage of investigation and is not passed on to the prosecution. Nevertheless, the settlement through mediation is not satisfied from the point of view of legal certainty, as the general criminal gap must not be resolved by mediation. Sociologically, this legal rule has an impact on society regarding criminal complaints that are resolved through mediation through non-litigation and are never again demanded for a law enforcement process regarding the results of the mediation which has been stated in the peace deed. So mediation has an impact on the realization of peace and order in society.