Traditional Rights Research Articles

L’evolution du concept de propriete chez les peuples de Côte d’Ivoire au XXe siecle

In pre-colonial Africa, societies were governed by traditional systems that had adopted a very different concept of property from that prevailing in European countries governed by Roman law. In Africa, property is a value as much as a good, a link that connects man and divinity, a right that is part of a multitude of lineage and community rights: everyone can therefore obtain uses for the value, but no one can, strictly speaking, claim to own it, dispose of it, sell it or destroy it. When the French coloniser made Côte d'Ivoire a colony (1882), he investigated traditional rights according to his own legal categories and regimes, in order to modify the African concept of property. This article, based on the French colonial surveys of 1901-1902 and recent personal surveys (2022-2023), seeks to understand how the French coloniser sought to introduce the French concept of property and to measure the extent to which the Baule peoples, especially the Baule of Koliakro, have resisted the modern concept of property to this day.

Co-Management Effects on Forest Restoration in Protected Areas of Bangladesh: A Remote Sensing and GIS-Based Analysis

Co-management is a promising forest governance strategy that integrates local communities’ traditional rights and forest dependencies while aiming to improve forest cover and ecosystem health. Bangladesh, facing high deforestation rates and limited per capita forest area, has implemented co-management initiatives since 2003 to restore forest cover and support the livelihoods of forest-dependent communities. While the socio-economic impacts of co-management are well studied, its effects on forest cover remain underexplored. This study addresses that gap by using three common spectral vegetation indices (NDVI, EVI, and MSAVI), calculated from Landsat 7 data, to analyze forest cover changes in five major protected areas under co-management. The results indicated that dense forest cover (41–71%) was initially prevalent in these areas, but a significant decline occurred between 2004 and 2015, with slope values ranging from −3.7 to −0.96. In contrast, the non-co-managed control site exhibited a much smaller decline (slope: −0.48 to −0.62) across all indices. Notable increases in agricultural land and forest–agriculture mosaics were also observed in the protected areas under co-management. Global Forest Watch data further confirmed substantial forest cover loss, particularly in CWS (158.77 ha) and SNP (0.49 ha). These findings highlight the need to reassess co-management strategies to address ongoing forest degradation.

The Effectiveness of Recognizing the Existence of Traditional Institutions in Indonesia Based on The Constitution

Plurality is a social fact that cannot be avoided in Indonesia. The diversity of Indonesian people's tribes, religions, races, languages ??and religions shows their diversity. The founders of the Republic of Indonesia used the basic philosophy of "unity in diversity" to show the diverse social reality of the Indonesian nation, and the basic philosophy of "tunggal ika" to show the desire to unite the entire Indonesian nation into one. With the combination of the two, the philosophical motto of the Indonesian nation is "Unity in Diversity", which means unity in diversity. Apart from various different societal systems and structures, this community has unique norms that are considered customs and are adhered to by its community members. Customary law communities are genealogical or territorial communities that are prosperous and have citizens who are different from members of other legal communities and can act as independent and independent legal subjects. One of the problems in administering customary law communities is the existence of customary institutions. The problem currently occurring is that there is no clear and integrated mechanism for recognition and protection procedures. Regulations regarding procedural mechanisms for recognizing the rights of customary law communities through sectoral legislation are often not adhered to by various parties, in fact the nature of the regulations which do not focus on specifically regulating customary law community institutions has an impact on ineffective implementation even though customary institutions have relevance to the Indonesian constitution. The existing mechanism only concerns the process of identification, verification and determining its existence, which makes it increasingly pressured by development activities that do not pay attention to traditional rights and threaten local wisdom.

Legal Protection and Rights of Indigenous Peoples: Legal Certainty in Managing Natural Resources

<p><em>Indigenous peoples possess traditional rights to natural resources within their territories, yet these rights are frequently overlooked or marginalized due to inadequate policies and regulations. This research aims to examine the legal protection of the Baduy tribe's rights in managing natural resources and to explore how legal certainty can be achieved in this regard. Utilizing a normative juridical approach, the study analyzes relevant laws and regulations pertaining to indigenous rights and state-provided legal protection. The findings reveal that the recognition and protection of customary law communities in Indonesia highlight the state's commitment to supporting social entities with autonomy over their lives. Despite the pressures of modern integration, indigenous peoples continue to uphold their identity, traditions, and customary rights. Legal acknowledgment of these rights is enshrined in the 1945 Constitution and various laws, including Law No. 5 of 1960 on Agrarian Affairs, Law No. 4 of 2009 on Mining, Law No. 41 of 1999 on Forestry, and Law No. 7 of 2004 on Water Resources. However, effective implementation is often hindered by regulations that do not adequately address customary rights. While Constitutional Court Decision No. 35 of 2012, which recognizes customary forests as belonging to indigenous communities, represents significant progress, challenges persist. The need for revisions to create more inclusive laws or regulations is pressing. For the Baduy tribe, Lebak Regency Regional Regulation (Perda) Number 32 of 2001 on the Protection of Ulayat Rights is a critical development. This regulation offers legal certainty and safeguards their traditional rights, including customary land and natural resources, and tackles issues like illegal logging and forest encroachment. By acknowledging local wisdom and customs, this regulation aims to preserve Baduy culture and enhance security and social stability in their area.</em></p>

Recognition of Lempa Dua Principle as Traditional Rights of Indigenous People Tau Taa Wana

Tau Taa Wana Indigenous Law Society is an integral part of the nation that has traditional or indigenous rights that must be respected and protected. The existence of the value of customary law as a sub-national legal system is recognized constitutionally in Article 18B Paragraph (2) of the 1945 Constitution of The Republic of Indonesia. The state recognizes, respects, and guarantees the enactment of customary law and its traditional rights as an integral part of the national legal system in Indonesia. This research aims to analyze and explain the legal recognition of the constitutional rights of Tau Taa Wana in the essential legal value of lempa dua as part of the Indonesian legal system for law enforcement eforts. This research used the normative-empirical method withlibrary research and the study of law as a reality (behavior) is done through research on how people follow the lempa dua principle as the living law. It shows that legal recognition of the rights of Tau Taa Wana guaranteed by the Constitution, as long it still exists as a subsystemofIndonesian law as well asa cultural identity and the rights of traditional peoples which is a human right that must be respected. As a subsystem of law, the principle of lempa dua also has a strict ordinance and division of duties between the three elements of kinship in resolving conflicts that occur between relatives tied in the principle of lempa dua. Also, juridicallydetermined that judges and Constitution Court judges as law enforcement are obliged to always keep up with the development of the values of law and justice ofsociety in prosecuting and deciding the case against the court.

Problems of Implementing Village Origin Rights in Indonesia

Local democracy in the village is essentially based on these rights of origin and traditional rights. This paper aims to discuss the problems of villages in exercising their rights of origin in Indonesia. To understand how these rights of origin are implemented, this article refers to the practice of Nagari as a customary legal community unit in West Sumatra Province. Not only that, enrichment related to implementing rights of origin also refers to Desa Pakraman in Bali Province. This article uses a literature study derived from documents that have been published from various sources such as articles in scientific journal, mass media news, and official government documents. This article finds that problems in the application of origin and traditional village rights arise because of strict government regulations that encourage village governments to focus on carrying out governance functions in their area. Using the principles of recognition and subsidiarity in the administration of village government results in an attitude of ambiguity in the administration of village government. As a result, the village government prefers to implement the household authority handed over to it accompanied by a budget through Village Fund transfers rather than developing the original rights that have become the identity of pre-existing local democracy.

THE EXISTENCE AND PROTECTION OF ULAYAT RIGHTS IN INDIGENOUS COMMUNITIES WITHIN THE FRAMEWORK OF POSITIVE LAW IN INDONESIA

Ulayat Rights are the highest rights of indigenous law communities to land. Normatively, protection of the rights of indigenous law communities is contained in several related laws and regulations, but in practice, Ulayat Rights of indigenous law communities often become the object of dispute/conflict, both with the government and with private parties who need land, so that they are often eliminated and detrimental to the rights of indigenous law communities. The aim of this research is to obtain an overview of the criteria for determining the existence of Ulayat rights of indigenous law communities and the legal protection of them when dealing with outside parties from a positive legal perspective in Indonesia. The approach method used is a normative juridical approach, namely tracing, studying and researching secondary data related to this research material. A juridical approach is used considering the problems studied revolve around the relationship between a regulation and other regulations, namely regulations regarding land, forestry and plantation law. The research results show that recognition of the existence of Ulayat rights of indigenous law communities is limited as long as they still exist and must fulfill several elements as specified in several statutory regulations. Protection of traditional rights is contained in the constitution, sectoral legislation and regional regulations, but in reality there are still frequent disputes/conflicts, this shows that the protection of Ulayat rights of indigenous law communities is still not optimal.

Traditional harvesting practices employed for freshwater turtles by the indigenous communities along Shilabati River, West Bengal, India

A survey was conducted through semi-structured interviews, involving 38 local fishermen of three villages in the Gangani region along Shilabati River in West Bengal, India. The survey revealed that three threatened species of turtles—Nilssonia gangetica, Nilssonia hurum, and Lissemys punctata—were clandestinely harvested by the riverine communities. These species are also being documented for the first time from this area, popularly called Jangal Mahal. N. gangetica was the most commonly harvested species, followed by L. punctata and N. hurum, mostly for consumption, local sale, and as traditional medicine. The most frequently used method for capturing turtles was the ‘multiple hook bait’; exclusively practiced by adult males of the fisher community, usually belonging to the age group 21–40 years, between February and June. The study indicated that the respondents knew that harvesting of turtles was clandestine, yet they continued to do so as their traditional right, as they believed minor catches will not harm local turtle populations. It is assumed that N. hurum, which is an endangered species, is already rare and on the brink of local extinction, whereas other two species are coping with the harvest in the specialized riparian habitat and adjacent ponds. In this study the harvesting of threatened turtle species was ardently associated with the socio-cultural customs rather than an economic compulsion but to check rising threat to these species, the uncontrolled harvest needs to be addressed urgently as a high priority conservation issue. This requires further explorations on the ecology of turtles, initiatives by enforcement agencies, and utilizing the inherent knowledge of indigenous people.

Nilai Nilai Eksistensi Tradisi Sekaten Dalam Perspektif Hukum Adat Dan Hukum Islam

This research focuses on the values ​​of the existence of the sekaten tradition in the perspective of customary law and Islamic law, as stated in article 18B paragraph 2 which states that "The state recognizes and respects customary law community units and their traditional rights as long as they are still alive and in accordance with with the development of society and the principles of the Unitary State of the Republic of Indonesia." and also article 28 paragraph 3 which emphasizes that the cultural identity and rights of traditional communities must be respected along with developments over time. The method used in this research is Library Research, which means dissecting the value of the existence of the sekaten tradition and the formation of customary law and Islamic law. Customary law and Islamic law have become part of the positive legal system in Indonesia. In the formation of positive law in Indonesia, both customary law and Islamic law were recognized and integrated into the national legal framework. Islamic law encourages Muslims to create a just and harmonious society where individual interests do not outweigh social interests. These ideas are consistent with traditional beliefs that highlight the importance of community, solidarity, and mutual aid in society. However, it is important to realize that how Islamic law is interpreted and implemented varies across societies and countries.

PERLINDUNGAN HUKUM MELALUI PRANATA SURAT TUMBAGA HOLING DALAM MASYARAKAT BATAK ANGKOLA

This research analyses how the state protects the existence of surat tumbaga holing institutions as a costitutional right of the Angkola Batak community. This research is a normative legal research that is normative empirical in nature which is legal research to find legal rules in the principle of surat tumbaga holing in accordance with the principles of the Indonesian legal system. Primary data used are legal materials from the library and laws and regulations related to legal protection, social structure and local wisdom. To support this data, secondary data is added from the behaviour and values that live in the Angkola Batak community as a living legal norm. The theory used as an analysis knife in this research is Eugen Erlich's legal sociology, where Erlich sees positive law on the one hand and the law that lives in society on the other. Erlich sees that positive law will be effective if it is in line with and incorporates the values and laws that live in society. The results show that the tumbaga holing letter also has a role in resolving problems or criminal acts that occur, such as adultery, domestic violence, verbal insults, defamation or slander, as well as other criminal acts such as theft that can disrupt public welfare. In addition, the sanctions given as punishment to perpetrators involve actions such as being expelled from their customary community, paying a fine to the victim, apologising to the victim or their family in the presence of customary elders, as well as being obliged to cover all food costs incurred during the settlement of the crime. This reality is guaranteed by the state through Article 18 B paragraph (2) which ensures that the state protects, respects and recognises customary law communities and their traditional rights if they are still alive, in accordance with the principles of the Unitary State of the Republic of Indonesia and implemented through legislation. While juridically, it is determined that judges and constitutional judges as law enforcers are obliged to always follow the development of legal values and community justice in adjudicating and deciding cases before them as contained in the judicial power law.

The Morant War of Representation: Freedom and Whiteness in Jamaican Narratives of the Morant Bay Uprising

ABSTRACT This article approaches Jamaican responses to the Morant Bay uprising as part of the earlier ‘war of representation’ fought between abolitionists and pro-slavery writers at the beginning of the nineteenth century. Initial Jamaican responses to the rebellion and its suppression were firmly integrated into global print networks but, in the months and years that followed, narratives evolved in ways that expose ongoing tensions about the meanings of freedom after slavery. In particular, the article explores how articulations of whiteness were entangled within an ongoing war of representation. Extending histories of whiteness during slavery, the shifting narratives around Morant Bay capture how white Jamaicans were attempting to navigate their place in a post-emancipation landscape. Anxiety and vulnerability quickly gave way to more triumphant representations of the rebellion’s suppression, but for some commentators, especially those on and beyond the margins of whiteness, reactions were more complex. By the late nineteenth century, Jamaican representations were further fractured by increasing frustrations towards Crown Colony government, especially for Jamaica’s white population, for whom abolition had already been perceived as an affront to their traditional rights and liberties.

Private law framework for blockchain

Current attempts to regulate blockchain technology are mainly based on securities law framework, which considers crypto tokens and digital assets as either securities, currencies or derivatives thereof. The main limitation of such approach lies in its inability to accommodate the diverse legal rights, obligations and assets that blockchain technology can virtually reproduce. Already in 2017–2018 there were attempts to tokenize rights outside of securities law framework, these initiatives served more as makeshift solutions to circumvent securities regulations than as thorough frameworks for managing real-world assets and commercial activities. This article conducts a comparative and historical analysis of blockchain regulatory initiatives in Europe and the US, positing that the regulation of blockchain technology through a securities law lens is driven by reactionary opportunism. Such a basis is deemed inappropriate and insufficient, as securities laws being a field of public law were not designed to govern real-world assets and commerce, which fundamentally rely on the principles of laissez-faire and freedom of contract inherent in private law. A regulatory stance focused solely on public law overlooks the full potential of blockchain technology, and risks stifling innovation and practical applications. To illustrate this, the article presents case study of tokenization of contractual rights demonstrating that securities law-focused legal regulations, such as the EU Regulation 2023/1114 on Markets in Crypto-Assets (MiCA) and Regulation 2022/858 on Distributed Ledger Technology (DLT), inadequately address the field of private commerce. Based on the analysis, the article concludes that comprehensive legal framework for blockchain technology shall combine public and private law regime akin to the regulation of traditional rights, obligations and assets.

ECOLOGICAL HOLISTIC APPROACH STRATEGY TO OVERCOME CONFLICT RELATED TO NATURAL RESOURCE MANAGEMENT INVOLVING INDIGENOUS COMMUNITIES

Constitutionally, based on Article 18 B paragraph (2) of the 1945 Constitution, the existence of customary law communities is recognized and their traditional rights are respected, including the right to manage natural resources based on customary institutions. Ecology's holistic approach in environmental law is a response to an increasingly deeper understanding of the complexity of the relationship between humans and the natural environment. One of the central aspects of this approach is the recognition of the important role of indigenous peoples in making decisions relating to their environment. Empowering indigenous communities as an implementation of environmental justice theory is not an easy process. Several challenges faced such as unequal access to information, social injustice, and resistance to change can become obstacles in efforts to achieve inclusive indigenous community participation. Therefore, a sustainable approach is needed and based on collaboration between the government, indigenous communities and the private sector to create an environment where the empowerment of indigenous communities in environmental decision making can be realized effectively.

Ambivalence in The Regulation of Indigenous Peoples' Rights in Indonesia's Legal Hierarchy

The recognition and protection of indigenous peoples in Indonesia remain uncertain due to the absence of ratified laws specifically addressing their rights. This lack of legal instruments undermines their recognition and protection, leading to uncertainty regarding their traditional rights. This article aims to identify potential arrangements for derivative regulations to address this gap. Normative legal research, employing a legislative and conceptual approach, was utilized. The findings suggest that while legal recognition of indigenous peoples exists in various laws, regional regulations tailored to local conditions are necessary. However, there's no consensus on which regulations should serve as the basis for these regional laws. Recommendations propose that the Agrarian Law, Human Rights Law, Village Law, and Job Creation Law could inform regional regulations to recognize, protect, and fulfill the traditional rights of indigenous peoples, thereby mitigating dualism of authority.

The Problem of the Prohibition of Wars of Aggression in the History of International Law

The turn of the 19th and 20th centuries was marked by the emergence of individual international acts that established certain restrictions on one of the traditional rights of states – the right to war. The need for their comprehensive study is obvious, since it was these acts that created a kind of foundation for the development of interstate cooperation in the direction of developing such legal norms that would serve as a reliable barrier against the outbreak of wars of conquest in the future. In this context, of primary importance is the 1919 Covenant of the League of Nations, whose articles, among other things, set out procedural requirements, the fulfilment of which was a necessary condition preceding the resort to armed force.The subject of the study is also the Paris Pact of 1928, which for the first time at the universal level states recorded a provision prohibiting the unleashing of aggressive wars. At the same time, the legal and grammatical interpretation of the provisions of this treaty source allowed the author to conclude that, in reality, the established prohibition was not absolute in nature, since not all situations related to the resort of states to armed force in their international relations can be classified as war. This state of affairs, where states had a real opportunity to circumvent the treaty-established prohibition, became an important prerequisite for continuing work to agree on an international definition of aggression.Other international acts that played a certain role in establishing a general prohibition of the use of force in international relations also became the subject of analysis in this paper.

Intellectual property rights and limitations on farmers’ rights in Pakistan

Farmers are the life blood of agriculture. The role of farmers for the services done to agro diversity and their efforts to seed preservation, sufficiently justify their rights to seed. In the wake of World Trade Organization- Trade Related Aspects of Intellectual Property (WTO-TRIPS) agreement on Intellectual Property Rights (IPR) protection for all innovations including plants. Farmers’ traditional rights are compromised over breeders of new plant varieties. This paper aims to describe international plant protection systems under WTO-TRIPS and examines two international conventions on plant protection i.e., Seed treaty and Convention on Biological Diversity. This paper employs a doctrinal method to examine the rights of farmers in Pakistan by adoption of “Plant Breeders’ Rights Act”. It is revealed that the Act limits the traditional rights of farmers’ and have helped to gratify plant breeders; Pakistan despite signatory to seed treaty has ignored to protect rights of farming communities while, in compliance to WTO-TRIPS went on to a stricter model of IPR barring farmer’s right even to seed except saving and exchanging’. The study proposes some strategies to balance between the rights of farmers with that of breeders, thus, to achieve a better reform system for both growers’ and agro technologists.

Model Kelembagaan Pemerintah Desa

In Law Number 6 of 2014 concerning Villages, it is stated that villages and traditional villages or what are called by other names are legal community units that have territorial boundaries and are authorized to regulate and manage government affairs, the interests of local communities based on community initiatives, rights of origin, and /or traditional rights recognized and respected in the government system of the Unitary State of the Republic of Indonesia. The Village Head or other designation is a Village Government official who has the authority, duties and obligations to organize the Village household and carry out tasks from the Government and Regional Government. Organizational Structure and Work Procedures Village Government is an institutional system in arranging tasks and functions as well as work relationships. According to Village Law, villages are led by a set of village officials known as the village government. However, what often happens is that village government is often confused or even misunderstood with village government

Comparison Of Customary Law In Indonesia And Australia From The Terms Of Customary Rights Of Customary Law Communities

The research aims to analyze and compare aspects of customary rights in the context of customary law in Indonesia and Australia. Customary privileges are an integral part of the life of customary law communities, which include traditional rights to land. This comparison provides in-depth insight into how two countries with different cultural and legal backgrounds manage and protect the ancestral land rights of their customary law communities. This study uses comparative legal procedures to explore the development, protection, and implementation of conventional rights in the two countries. Factors such as the history of colonialism, legislative changes, and local cultural influences play an important role in shaping the legal framework regarding customary rights. This analysis also includes case studies to provide a concrete picture of how traditional liberties are implemented in real situations in customary law communities. The findings of this research can provide a better view of the challenges and opportunities faced by customary law civilizations in defending the sustainability of their customary freedoms amidst the dynamics of modernization and globalization. In addition, this comparison can be a basis for improving policies and a better legal framework to ensure fair and sustainable protection of customary rights for customary law communities in both countries. This analysis presents a cross-cultural understanding of the management of customary rights and the potential integration of traditional law principles in a modern legal context.

Regulating Slavery: The Bawi Question in Colonial Lushai Hills

This paper tries to understand the process by which the colonial government in the province of Assam “resolved” the slavery question in its frontier areas in the early twentieth-century. It argues that the use of semantics, especially the language of law was crucial in recasting the master-slave relationship into a contractual bond. Such transformations allowed most of the traditional rights of the master over their slaves to be kept intact, while allowing the relationship to outlive colonial rule.

Protection of local wisdom of papua's original people by the papua people's assembly in Indonesia

One of Papua's special autonomy rights is the existence of the Papuan People's Council (MRP) as the cultural representation of the indigenous Papuan population who are given certain powers. Article 1 point 6 of Government Regulation Number 54 of 2004 concerning the Papuan People's Assembly defines: "The Papuan People's Assembly, hereinafter abbreviated as MRP, is the cultural representation of indigenous Papuans, which has certain authority in the context of protecting the rights of indigenous Papuans based on respect for customs and culture, empowering women, and strengthening religious harmony." The problem is how to regulate the functions and rights of MRP legislation in the formation of Special Regional Regulations. How is the implementation of the rights and tasks of the MRP in the context of protecting the traditional rights of Indigenous Papuans regarding the exploitation of natural resources? What will be the legal protection for Indigenous Papuans through the Papuan People's Assembly (MRP) in the future (ius constituendum)? The research method is a normative legal or juridical research method supported by empirical data. The results of the research are that the protection of the basic rights of indigenous Papuans by the Papuan People's Assembly (MRP) in carrying out its authority to provide consideration and approval of draft regional regulations has not had a significant impact on achievement. The welfare of indigenous Papuans is the target/objective of affirmative action and is the aim of Law Number 21 of 2001.