Customary Rules Research Articles

The Complementary Relationship between the Legal and Customary Rules of Aflaj in the Sultanate of Oman - A Comparative Study –

The Complementary Relationship between the Legal and Customary Rules of Aflaj in the Sultanate of Oman - A Comparative Study –

Teleological Interpretation by International Economic Organizations

Teleological interpretation is a legally sound approach to empower an international economic organization to grow and develop, as it responds and adapts itself to ever-changing circumstances. The method is consistent with customary rules of interpretation of public international law, whilst being distinct from law-making. The twin Bretton Woods institutions are experienced in exercising teleological interpretation, and the new Asian Infrastructure Investment Bank (AIIB) follows suit and innovates in applying this interpreting method. On the contrary, the World Trade Organization (WTO) does not have a strong tradition of teleological interpretation, but it should learn from its peer institutions, and with the membership support, acknowledge and embrace this feasible interpreting method, as it seeks to survive or revive in these difficult times.

State Practice and Opinio Juris at the Intersection of Customary International Law and General Principles of Law

Abstract Starting from a reflection on the legacy of Benedetto Conforti’s scholarship and his construction of general principles of law as a sui generis category of customary international law, this essay discusses the issue of the distinction between general principles and customary rules. It focuses on the recent work of the International Law Commission, and argues that the solutions offered in the Draft Conclusions on General Principles of Law, provisionally adopted in 2023, are far from satisfactory as regards both principles derived from national legal systems and principles formed within the international legal system.

Peculiarities of the criminalization of smuggling of goods and its importance for filling the state budget

Smuggling of goods is a complex and multifaceted phenomenon that has a significant impact on the economic and social situation in the country. The illegal movement of goods across the border not only undermines economic stability, but also poses a threat to national security, contributing to the development of the shadow economy and corruption. In the conditions of globalization and the growing integration of international markets, the issue of combating smuggling becomes especially urgent, because this phenomenon is becoming more and more large-scale and difficult for state control. Criminalization of the smuggling of goods is a key mechanism for countering this negative phenomenon, which involves the establishment of stricter liability for violations of customs rules. It should be noted that the effectiveness of the criminalization of customs offenses depends on a number of factors, including the presence of effective legislation capable of adequately responding to new challenges, the effectiveness of law enforcement agencies, as well as the level of international cooperation in this area, etc. However, given the specifics of the Ukrainian economy and the country’s geopolitical location, the smuggling of goods remains a serious problem that requires a deeper analysis and an effective solution. One of the key aspects of the fight against the smuggling of goods, which became one of the main reasons for its criminalization, is its impact on filling the state budget. Illegal trade in goods deprives the state of significant financial revenues that could be directed to the development of social programs, infrastructure projects and ensuring economic growth. The loss of these resources weakens the country’s economic potential, undermines trust in state institutions, and contributes to growing social tensions. The article examines the impact of smuggling on the state’s economy, emphasizing the negative consequences for filling the state budget. Examples of significant economic losses incurred by the state due to smuggling are considered, as well as the role of customs authorities in combating this phenomenon is highlighted. A set of measures is proposed to reduce the level of smuggling, including changes to legislation, increasing the effectiveness of customs control and strengthening international cooperation.

Supervision of Panglima Laot Lhok in Preventing Illegal Fishing

The Laot Customary Law Institution, led by a Panglima Laot, is a traditional institution that regulates the use and management of coastal and marine resources. This institution is responsible for implementing and supervising customary rules in the maritime sector which have been established and decided through customary deliberations of the sea handlers living in the area. The Aceh Sea area has many natural marine resources, both biological and non-natural, which makes it prone to illegal fishing. In addition, the Panglima Laot regulations state that fishermen are prohibited from bombing, poisoning, anesthetizing, electrifying, harvesting coral reefs, and other actions that could damage habitats and other biota. This research aims to analyze and study in depth the supervision of Panglima Laot Lhok in preventing illegal fishing. Primary and secondary data are the data sources used in the descriptive qualitative method. The research uses data obtained through interviews, observation, and documentation. Based on the results of research and findings in the field, the conclusion is that Panglima Laot Lhok always carries out supervision in preventing illegal fishing, either directly by Panglima Laot Lhok or by coordinating with fishermen who are at sea, however, the very large sea factor means that supervision does not occur properly and thoroughly, and sometimes illegal fishing occurs. Keywords: supervision, panglima laot lhok, illegal fishing

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.

The Threat of Cultural Degradation Due to Tourism Activities (Case Study on Tourist Guides from Baduy Dalam Tribe at Banten, Indonesia)

With the inclusion of Baduy in the list of Rural Tourism, it also brings tourists with the habits they bring. Tourism needs and tourist behavior such as bringing mobile phones, taking pictures are feared to affect and are considered to threaten the purity of teachings and beliefs in Baduy. The novelty of this research is to fill the gap of existing problems or a void of knowledge, lack of literature that focuses on the Threat of Cultural Degradation because of the existence of Baduy Dalam Tribe Residents who have activities as tour guides, and they are suspected of having cell phones and Instagram social media which are considered contrary to the customary rules of the Baduy Tribe. The research method used is qualitative with a case study approach. Data collection through interviews, observation and documentation. The data obtained will be analyzed using the Miles & Huberman interactive model. Baduy customary rules strictly prohibit the use of technology, but local guides from the Baduy Dalam tribe are found using mobile phones and Instagram social media to attract tourists to use their services. There is a social change in local guides as they adjust to the needs of tourists. They use this technology secretly because they realize that they have violated customary rules. The customary leader explained that what happened to the local guide had indirectly violated customary rules. The conclusion of this research is that there is a threat of cultural degradation due to tourism activities, especially for tour guides from the Baduy Dalam Tribe. Mobile phone ownership and the use of Instagram social media to attract tourists to use guiding services are considered contrary to customary rules.

The Kudmi (Kudumi), a totemic community of Jharkhand State and near about parts (India) – critical evaluation for inclusion in ST category

The Kudmi (Kudumi) a totemic primitive community (tribe) originated and evolved from the Neanderthal man (Homo Sapiens neanderthdemais) 2,30,000 years ago, like all other human beings, which is evidenced by the evolutionary theories based on fossil findings and population genetics. They are inhabiting in the state of Jharkhand and its near about, i.e. of West Bengal, Assam, Odisha and Chattisgarh states since time immemorial, who were classified as “Primitive tribes” by the British regime in India in 1865, alongwith other primitive tribes under the term of the Indian succession Act, as they have customary rules of sucession. Subsequently in 1913 and 1931 they were included in the list of tribes (Primitive Tribes). But unfortunately, they were omitted as from the ST category drawn up in 1950 for reasons that are unknown, although they are having traits of Primitive Tribes, e.g., they are totemic (alike all other primitive tribes of India and the world) i.e. their lineage related to plants, animals and other natural objects, shyness of contact with other communities at large, distinctive culture, geographically isolated, Backwardness (towards past, keeping back and slow is learning) and specific mother tongue-“Kudmali’.Under the above circumstances the Kudmis of the above noted geographical area be again reincluded in the ST category by the present authority concerned to bring them to the main stream of development of the country and to uplift their life style and social status at large.

Marga Belitang Dalam Pemerintahan Onder Afdeeling Komering Ulu : Dinamika Sosial dan Budaya

This research is a local historical research that explains the Belitang clan in the Onder Afdeeling Komering Ulu government in terms of the history and social and cultural dynamics of the community. Marga is a form of government which is currently at the level of a sub-district and was established during the Dutch colonial government. The main issues are first, what is the history of the formation of the Belitang clan and second, what are the social and cultural dynamics of the Belitang clan community. This research is a qualitative descriptive research with data collection through observation, documentation, interviews and literature study. The results of this research conclude that (1) The origins of the Belitang clan began with the oldest hamlet in the area with residents who were descendants of the original Lampung Pepadun tribe. The community in the village is led by a clan balancer, namely Ratu Bagus Baginda, and lives in the Tanjung Raya Palace. He proposed the establishment of a clan government system in Belitang to the Dutch government and it was inaugurated in 1930 AD. (2) The social and cultural dynamics of the Belitang clan community have actually existed since the time of the Palembang Sultanate, for this reason the customary rules that apply in the community are almost the same as the rules mentioned in the Simbur Cahaya Law.

Causes of occurrence and ways of combating violations of customs rules

Violations of customs regulations by subjects of foreign economic activity and the smuggling of goods are pressing issues for the socio-economic development of Ukraine. The purpose of the article was to investigate the main causes of smuggling and to develop ways to prevent violations of customs regulations. The work analyses the statistics of customs violations and the volumes of smuggling, which are one of the factors in the significant shortfall of tax revenues to the budget. The method of generalisation was used to summarise the results of a survey by the Institute of Economic Research and Policy Consulting of foreign economic activity subjects regarding the impact of “grey import” problems and smuggling on their performance indicators. Using the chronological method and the analysis method, the chronological changes in the objects of smuggling were analysed according to criminal law, which affects the directions of customs authorities’ work in the customs control process. The study summarises the foreign experience of criminal liability for smuggling, indicating more severe punitive measures than in Ukraine. The volumes of cigarette smuggling and the budget revenue losses from such smuggling were analysed using the statistical method. The results of the analysis indicate that the volume of cigarette smuggling in Ukraine is one of the largest in Europe. The causes of smuggling are identified and can be divided into those related to the activities of customs authorities and those related to the legislative and executive bodies of Ukraine. The main ways to counter smuggling and reduce violations of customs regulations are substantiated, which should be systematic and comprehensive and not only involve the control function of customs authorities but also improve the socio-economic development indicators of the state. The practical significance of the results lies in summarising the causes of smuggling and customs regulation violations and developing proposals for their prevention, which can be used in the work of customs authorities and in the implementation of the strategic goals of the National Income Strategy

Conflict resolution in the customary village governance administration of Baduy, Tengger, and Samin ethnic groups in Indonesia

In Indonesia, the village government organization is part of local democracy. This includes the local democracy in indigenous villages. Indigenous villages have their own customary rules for implementing village elections. They have their own conflict resolution systems in implementing the village government. The implementation of the indigenous village governance leaves conflicts. So, there is a need for a suitable model for resolving problems in the implementation of village elections. The method used in this research is the qualitative research method with the juridical empirical approach. The locus of this research is in the Baduy, Tengger, and Samin indigenous village communities. The conflict resolution model in the administration of the Baduy, Tengger, and Samin customary villages differs in the right mechanism, but in substance, the resolution model is the same, as they use a deliberation model for consensus. In resolving conflicts, indigenous peoples fully submit to traditional leaders. The provincial and the regency/city governments are expected to give greater attention to the conditions of villages with customary government characteristics.

Adjustments to the Traditional Government System in the Muslim Malay Community of Bungo (1979–2023)

<em>This research is motivated by the changes that occurred in the customary government that survived for many years as social control in Malay society. The purpose of this research is to describe the changes in the customary government system in the muara bungo Islamic Malay community (1979-2023). The research method used is the four stages of historical research methodology, namely heuristics, source criticism, interpretation, and writing. The data collection techniques used are observation, interviews, literature study, and documentation. The results showed that as a social controller in the Malay customary society of Muara Bungo, which lost its role thanks to Law No. 5 of 1979 which changed all the smallest units into village governments. The customary government then disappeared and all the rules and customary devices that had existed after so long. This change then did not bring changes towards progress in the indigenous Malay community of Muara Bungo, it became a setback for the community. The village government only regulates village administration, not regulating the problems that arise in indigenous peoples. The loss of the Customary Chief (Pasirah) made the Malay indigenous community lose guidance, so that community problems could not be resolved by the village government. The increasingly worrying situation made the Jambi Level I regional government move by issuing Regional Regulation No. 5 of 2007 with the intention of restoring the identity, function and role of customary institutions to the community. Rio emerged as the new customary head, to socialize and teach the community the customary rules, and to peacefully resolve customary problems that occurred in the community.</em>

Customary Mediation Practices: Practical Experiences from Indonesia

The current view of society no longer sees that the court is the only dispute resolution institution. The existence of court institutions has been indicated by various cases of corruption, collusion, and nepotism, better known as KKN. This is given that many products of court decisions deviate from the principles of justice, are quick and inexpensive. In this context, an alternative dispute resolution model is needed in the customary law community that is more efficient, fair and accommodating in order to maintain the continuity and sustainability of the life of the customary law community, which is more humane and equitable. The tradition of dispute resolution in customary law communities is based on the value of the philosophy of togetherness (communal), sacrifice, supernatural values, and Justice. In customary law Community, common interest is a philosophy of life that permeates every member of the indigenous community. The practice of customary mediation in this paper in practice, the karo people of North Sumatra and papu is a form of local wisdom in resolving disputes or conflicts in Customary Law communities with a community mediation approach where in Community Mediation, leaders (customary leaders) have an important role and must have skills in resolving disputes using customary rules contained in Indigenous communities. The purpose of adat mediation practices in Indonesia is the existence of community adat mediation to maintain the balance and harmony of Indigenous Peoples by prioritizing deliberation rather than dispute resolution through legal channels.

PENGEMBANGAN MODEL KOMUNIKASI PERSUASIF PEMUDADESA ADAT CIPTAGELAR DALAM KEGIATAN AGROFORESTRI BERBASIS KASEPUHAN

Forest sustainability will be if the ecological and economic functions of the forest can take place appropriately. The sustainability of the two purposes of the forest requires community participation through persuasive communication. Kasepuhan Ciptagelar presented that community participation in environmental activities, especially agroforestry, is also represented by young people. Therefore, this research aims to identify Persuasive Communication of Ciptagelar Traditional Village Youth in Agroforestry Activities in Kasepuhan Ciptagelar, Sirnaresmi, Sukabumi Regency, West Java Province. This research used a constructivist paradigm and a qualitative descriptive approach. The study highlights every form of persuasive communication in agroforestry activities by Ciptagelar Indigenous youth. The results showed that the persuasive communication carried out by the Ciptagelar Indigenous Youth used a behavioral intention approach. All forms of persuasive communication actions in Kasepuhan-based Agroforestry activities. Uniquely, the youths are very obedient to customary rules, but also use the latest communication media in persuasive communication. Persuasive communication that is carried out only aims at cognitive aspects for external parties in the Village. The concept of kasepuhan which is carried out in every form of persuasive communication by Ciptagelar Traditional Village Youth to external village audiences carries the principles of trust and volunteerism.

Stuxnet vs WannaCry and Albania: Cyber-attribution on trial

The cyber-attribution problem poses a significant challenge to the effective application of international law in cyberspace. Rooted in unclear standards of proof, evidence disclosure requirements, and deficiencies within the legal framework of the attribution procedure, this issue reflects the limitations of some traditional legal concepts in addressing the unique nature of cyberspace. Notably, the effective control test, introduced by the ICJ in 1986 and reaffirmed in 2007 to attribute the actions of non-state actors, does not adequately account for the distinctive dynamics of cyberspace, allowing states to use proxies to evade responsibility.The legal impracticality and insufficiency of the attribution procedure not only give rise to the cyber-attribution problem but also compel states to develop new attribution tactics. This article explores the evolution of these cyber-attribution techniques to assess whether contemporary state practices align with the customary rules of attribution identified by the ICJ and codified by the ILC within ARSIWA, or whether new, cyber-specific rules might emerge. By analyzing two datasets on cyber incidents and three distinct cases – Stuxnet, WannaCry, and the 2022 cyberattacks against Albania – this article concludes that the effective control test cannot be conclusively identified as part of customary rules within cyberspace due to the insufficient support in state practice. Furthermore, it is apparent that the rules of attribution in the cyber-specific context are in a disarray, lacking consistent, widespread and representative practice to support a general custom. However, emerging state practice shows some degree of unification and development, suggesting the potential for the future establishment of cyber-specific rules of attribution.

Marriage Kinship in the Customary Marriage Institution in Seith Negeri, Ambon Island

<p><em>Traditions in indigenous communities on Ambon Island are found in various aspects of life. Relatively, traditions become rules or guidelines for the community to carry out their life activities in the economic, political, legal, socio-cultural, and other fields. Of course, the ancestors placed this effort to avoid irregular living behavior so that the community would feel peace and comfort. Therefore, the basis laid for generations will become a reference for acting and building a life together, such as marriage kinship in the traditional marriage process in Negeri Seith, Ambon Island. Seith, as a Muslim negeri, provides space for the mechanism of customary practices of its community, especially in the tradition of marriage. Therefore, marriage kinship receives recognition and is integrated into marriage religiously. This reality illustrates that traditional and religious institutions do not compete but together contribute to strengthening society and its people who want to build a new household. This research aims to reveal, discover, and analyze the value and meaning of marriage kinship in the traditional marriage process in Negeri Seith. The research method used is qualitative, using interview and observation data collection techniques. Indeed, this is important to show the objective reality of the community carrying out customary rules regulated by ancestors and the provisions of God Almighty through religious institutions. The marriage kinship is the marriage guardian, and the bride-to-be's father's relatives determine that religious marriage will be carried out if it is by these provisions</em>.</p>

Combating violations of customs rules in Ukraine and prospects for administrative and procedural settlement

Combating violations of customs rules in Ukraine and prospects for administrative and procedural settlement

Comparing China and India’s transboundary water governance: insights from international law

ABSTRACT Home to the majority of Asia’s shared transboundary freshwater resources, China and India have adopted different approaches to transboundary water governance, influenced in part by their approach to international law. International law provides a framework for transboundary water cooperation through a body of conventional (treaty) and customary rules as well as non-binding instruments. This study examines China’s and India’s State practice through a legal analytical framework that serves to identify, compare, and contrast their approaches, with a view to offering some insight into how transboundary water cooperation by these two riparian nations might be reframed and possibly advanced.

Bynames in the Baduy Dalam as a Conception of Family Relationships

The Baduy people of the Banten Province in Western Java are one of many peoples that make up the larger Sundanese ethnic group in Indonesia. The life of the Baduy Dalam (the Inner Baduy people) is interestingly bound to their customary rules and norms including those regulating their naming system. This research discusses the Baduy naming system which has a unique concept of naming a child using part of his/her parents’ byname. In the research, 493 people and their bynames were selected from a total population of 1,202. The names were collected from the Family ID Cards of those living in three Baduy Dalam villages — Cibeo, Cikeusik, and Cikartawana. The study also utilized interviews with informants who have considerable knowledge about the bynames of the Baduy people. These interviews were conducted to see when and how the names of Ayah, Ambu, Ki, and Ni were formed. In Baduy tradition, parents are called Ayah (male) and Ambu (female) followed by the name of their child. Similarly, grandparents are called Ki (male) or Ni (female) followed by their grandchild’s name. It is not always the first child or a male child whose name is taken for his/her parents’ or grandparents’ byname. The choice is taken based on agreement among family members. The research was informed by the study of personal names known as anthroponomastics, and more specifically, by Eva Brylla’s anthroponomastic theory of the byname (Brylla, 2018).

A shift of inheritance tradition in Batak migrant communities in Yogyakarta

This article examines the shift in customary inheritance in the Batak community that migrated to Yogyakarta. Traditionally, among the Batak people, the patrilineal system is a cultural heritage still preserved today. The enactment of the patrilineal system is one of the causes of the unequal position of Batak women's inheritance rights because only men have the right to become heirs. Interaction with people of different ethnicities, customs, and customs in overseas places not only expands the horizons of Batak nomads but also allows them to change their point of view so that leaving the roots of Batak customs will be inevitable. Until now, some Batak nomads still make boys as heirs, but it is undeniable that there is a mixture of heterogeneous communities in overseas areas that can give rise to a shift in the views of Batak nomads so that they become more open, such as accepting women as heirs with different parts. Equalizing the position between men and women through the division of inheritance indicates a shift in Batak inheritance customs that apply in the environment of the migrants. The emergence of the balance of position between men and women in the implementation of inheritance increasingly shows that the non-maintenance of customary rules that do not give inheritance rights to women is not solely preserving the identity of the Batak Toba people overseas. However, it should be suspected as one of the dynamics that emerged in the settlement of heritage by Toba Batak nomads.