The Role of Nusantara'S (Indonesian) IN: Legal Thoughts & Practices Globalization of Law

THE ROLE OF NUSANTARA’S
(INDONESIAN) LEGAL
THOUGHTS & PRACTICES
IN
GLOBALIZATION OF LAW
Agus Brotosusilo
Faculty of Law –AgusUniversitas
Brotosusilo, 1983.
.
Indonesia, 1
I. Background.
CONTENT:
II. Problems Statement
III.Theory and Methodology
IV. The Impact of Nusantara’s/Indonesian Legal System Globalization
to the Modern International Law Development:
1. The role of Indonesian Adat Law on the origin, formation, and
establishment of Modern International Law.
2. The Agrarische Wet (Agrarian Law), 1870: a red carpet to invite
the foreign’s origin private capitalists.
3. The Non-violence South China Sea Conflict Resolution Style: RI
vs. PRC.
4. Indonesian “Political Doctrine”: from “Wawasan Nusantara
(Archipelagic Outlook)” to “Archipelagic State Principle in
UNCLOS-1982”.
5. Javanese Adat law as a source of International law.
6. The Indonesian Investment Law of 1967 and The Indonesian
Omnibus Law of 2020: a red carpet to invite the multi-national
capitalists.
7. The origin of WTO: to avoid the 2nd coming crisis of capitalism.
8. Legal Transplantation: the liberal-capitalistic ideology in the
Indonesian constitution.
Agus Brotosusilo, 1983. 2
V. Conclusion.
.
I. Background

PARADOXICAL-IRONY
IN THE INDONESIAN
• Hugo GrotiusLEGAL
acknowledgedEDUCATION
the Significant Role of (1)
Nusantara'/East
Indies’ (then, Indonesian) Legal Thoughts and Practices in his attacks
on the MARE CLAUSUM Law of the Sea Legal Regime in the
Formation and Establishment of Modern International Law (MARE
LIBERUM, 1608); Ironically, when I was a student at the International
Law Department, Faculty of Law-Universitas Indonesia/FHUI, I was
never taught about the Role and Contributions of the genuine, native
Indonesian legal thoughts and practices in the origin, formation,
and establishment of the Modern International Law.
• When I was studying at the undergraduate degree FHUI, there was an
interesting seminar at the BPHN/Department of Justice; the topic is
"Formulation of the Indonesian Private International Draft-Law“; I
was eagerly present at the Seminar because the Chairman of the
Seminar Committee was the Professor whose course I was taking at
FHUI at the semester.
PARADOXAL-IRONY
IN THE INDONESIAN LEGAL
EDUCATION
• Eventually, after the Seminar lasted 3 days(2)
and was closed, I returned
home angrily, because the Draft-Law as the results of the Seminar did
not mention the PANCASILA at all, let alone ADAT LAW.
• Furiously, I wrote an article entitled "Adat Law as a Source of
International Law" which published the next day at Kompas Daily; I
elaborate briefly on how the legal principle of "Perjanjian Bagi
Hasil" derives from Javanese Adat Law was transformed into a
practice of "Production Sharing Contract/PSC" by the Indonesian
government in 1966 for international oil and gas mining-business
activities; the practice of the international contract soon followed by
the USSR as well as most of the Gulf Countries’ oil-producers. This
globalization of Adat Law was confirmed by international-business
researchers.
(Agus Brotosusilo: Kompas Daily, Oct. 1980; See also: Kirsten
Bindemann: Production-Sharing Agreements: An Economic Analysis,
Oxford: Oxford Institute for Energy, October 1999, p. 10; Hugo Grotius: Mare
Liberum, 1608.).
“MARE CLAUSUM” >< “MARE LIBERUM”
• “Mare Clausum” (Closed Sea):

A sea or other body of navigable water that
is under the jurisdiction of a particular
nation and is closed to other nations.
• “Mare Liberum” (Free Sea):

A sea or other body of navigable water that
is under the jurisdiction of a particular
nation and is open to all nations.
ANOTHER IRONY SITUATION IN THE
INDONESIAN LAW SCHOOLS
• Currently, an ironic phenomenon arises in the law schools in
Indonesia: Adat Law that applies to Indigenous Indonesian
Citizens (the majority), is less desirable to the student at the
Faculty of Law; Scientific Legal Writing in S1, S2, and S3
degrees (Thesis-Dissertation) studies more about the fallacious-
translation of BW and/or others Non-Adat Law than the study
of Adat Law, even though the original BW in its place of birth
has been thrown away for several times since it is no longer
conform to the needs of the community who formulated it
• What is taught in Indonesian law schools is the fallacious-
translation of the original BW version which is no longer valid
even at the place of its birth; On the contrary, there are still
many valid Indonesian Adat Laws in the country which have
never been scientifically researched.
TO LEGAL STUDY IN
INDONESIA NECESSARY? TO UNDERSTAND
INDONESIAN
• The existence of Adat Law in LAW RIGHTLY!
Indonesia is manifested in LEGAL
ACTS (concrete); the existence of Adat Law is quite different
from the form of the existence of law in THE COMMON LAW
countries legal tradition: as "PRECEDENT = LEGAL
PRINCIPLES"; and the form of the existence of law in THE
CIVIL LAW countries legal tradition as “LEGAL NORMS".
• The scientific study of the existence of law as "PRINCIPLES"
and "NORMS" - the IDEAL element of law - can be studied
through legal dogmatic (legal science in the narrow sense).
• The Scientific study of Indonesian ADAT LAW which is
manifested as LEGAL ACTS, the RIEL legal elements, needs
the assistance of an INTER-DISCIPLINARY approach
of Sociology of Law and/or Socio-Legal Studies.
TRANCENDENTAL
PERSPECTIVE
“JUSTICE”
.
certainty LEGAL equity
VALUES
pacta sunt servanda LEGAL INTERNAL

PRINCIPLES PERSPECTIVE
western LEGAL INTERNAL

land sales norm NORMS PERSPECTIVE
land sales in LEGAL EXTERNAL

customary law ACTS PERSPECTIVE
THE EXISTENCE OF LAW; AND

ITS SCIENTIFIC-METHOD’S PERSPECTIVES
(Agus Brotosusilo, et.al.,: Penulisan

Agus Hukum: Buku Pegangan Dosen. Jakarta:9
Brotosusilo, 2017.
Asia Foundation - Konsorsium Ilmu Hukum – Departemen Pendidikan Dan
IN THE
NUSANTARA’/INDONESIAN ADAT LAW
AND PRACTICES:
SOVEREIGNTY  AUTONOMY
INDEPENDENCY  DEPENDENCY
FREEDOM OF NAVIGATION  CLOSED SEA-LANE

PASSAGE
FREEDOM OF TRADE  ORDER OF EXCHANGE
FREE COMPETITION  FAIR COMPLEMENTATION
MUTUAL-RESPECT  INDIVIDUEL/PERSONEL-
HARASMENT
.
GLOBALIZATION

ELIZABETH KING (EDS):
GLOBALIZATION, KNOWLEDGE
ANDis SOCIETY.
• GLOBALISATION the process of international
integration arising from the interchange of world
views, products, ideas, and other aspects of
CULTURE.
• Advances in transportation and telecommunications
infrastructure, including the rise of the telegraph and
the internet, are major factors in globalisation,
generating further interdependence of economic
and cultural activities. (Lloyd, D. and Freeman:
Introduction to Jurisprudence, 2014).
• )
AGUS BROTOSUSILO, 1994:
GLOBALIZATION is the
process of the spread of
CULTURAL elements --
material and immaterial
forms of human needs– to
all corners of the globe.
CONVENTIONAL GLOBALIZATION:
(Agus Brotosusilo, 1994)
In a CONVENTIONAL
GLOBALIZATION, the process of
spread of CULTURAL elements
--material and immaterial forms
of human needs– to all corners of
the globe is LIMITED to specific
cultural elements only (religion,
politics, economics, law, etc.).
MODERN GLOBALIZATION:
(Agus Brotosusilo, 1994)
In a MODERN GLOBALIZATION,
the process of spread of
CULTURAL elements --material
and immaterial forms of human
needs– to all corners of the globe
involves several cultural elements
(religion, politics, economics, law,
etc.) SIMULTANEOUSLY.
AL-RODHAN, NAYEF R.F. AND
GÉRARD
STOUDMANN, 2006:
• Globalization is the process of
international integration arising
from the interchange of world views,
products, ideas, and other aspects of
culture.
• Globalization describes the
interplay across cultures of macro-
social forces; These forces include
religion, politics, and economics.
ELIZABETH KING (EDS.)
GLOBALIZATION, KNOWLEDGE AND
SOCIETY, 1990
" Globalization is…all those
processes by which the
peoples of the world are
incorporated into a single
world society."

MARTIN SHAPIRO:
THE GLOBALIZATION OF LAW, 1993.
.
• Globalization of law refer to the

• .
degree to which the whole world

lives under a single set of legal
rules.
• Such a single set of rules might be
imposed by a single coercive actor,
adopted by global consensus, or
arrived at by parallel development
in all parts of the globe.
Agus Brotosusilo, 1983.
18
18
.
II. Problems Statement
AGUS BROTOSUSILO, 2010. 19

PROBLEMS STATEMENT
1. What is the role of Nusantara/Indonesian communities’
GENUINE legal thought and practices in several
disruptive impacts of the globalization of law?
1. What are the destructive impacts of FOREIGN values on

the Indonesian legal system in the globalization of law?
1. What is ought to be THE PRESCRIPTIVE SOLUTION to

the problem of destructive impacts of FOREIGN legal
values on the Indonesian legal system in the globalization
of law era?
.
III. Theory and Methodology

.
III.a. “DEVELOPMENT OF LAW IN SOCIETY”

THEORIES:
1.ADAM SMITH’S “LECTURES ON JURISPRUDENCE”.

2.F.K. VON SAVIGNY’S “VOLKSGHEIST”
3.SIR HENRY MAINE’S “INDIVIDUAL LIBERALIZATION”
4.HEGEL'S PHILOSOPHY OF HISTORY
5.KARL MARX’S HISTORICAL MATERIALISM
6.RONALD DWORKIN’S THEORY OF ADJUDICATION

.
III.b. THEORETICAL BASE

AND ITS METHOD

METHOD (F.K. Von
SAVIGNY, “System of Modern Roman, 1840”
pp. 12-17)

THE DEVELOPMENT OF INDONESIAN SOCIETY,
AS TEST FOR SAVIGNY HISTORICAL METHOD

.
III.c. The Impact of Nusantara’s/Indonesian

Legal System Globalization
to the Modern International Law
Development

.
GLOBALIZATION OF LAW:
THE FIRST WAVE
The role of Nusantara’s/Indonesian Adat Law

on the origin, formation, and establishment
of modern international law
.
The Impact of Nusantara’s/Indonesian

Legal System Globalization to
International Economics Development
SILK ROAD (Land Route )

and
SPICES SEA LANE (Maritime Passage)
One Belt One Road (OBOR)

SILK ROAD (Land Route )
Vs.
SPICES SEA LANE (Maritime Passage)

MORE CONSEQUENTIAL FOR THE
ECONOMY OF THE ROMAN EMPIRE THAN
Warwick BallTHE SILK TRADE
contends that the maritime
spice trade with India and Arabia was far
more consequential for the economy of
the Roman Empire than the silk trade with
China, which at sea was conducted mostly
through India and on land was handled by
numerous intermediaries such as the
Sogdians.[20]
(Warwick Ball (2016), Rome in the East: Transformation of an
Empire, 2nd edition, London & New York: Routledge, ISBN
978-0-415-72078-6, pp. 154–56.)
THE COLLAPSE OF THE SPICES SEA
LANE + THE SILK-ROAD
IN THE
• In the middle ages, CRUSADES
the Europeans are suffering its worst-
ever economically with the collapse of the Nusantara -
Middle-East SPICES SEA LANE (Maritime Passage)
and the Silk-road (Land Route) with the fall of
CONSTANTINOPLE (1453) to Turk and converted into
ISTANBUL in the CRUSADES.
• The European economic crisis elevates the price of
spices from Nusantara/Indonesia sky-rocketing: in the
time the price of nutmeg and gloves is higher than gold.
• The disconnections of the Middle-East Spices Sea
Lane and the Silk-road land-route prompted Dutch
traders to find a way by sea to obtain spices from the
Nusantara archipelago; but these efforts hampered by
the "MARE CLAUSUM“ law of the sea legal regime. 31
FROM ADAT LAW
TO MODERN
INTERNATIONAL
• In the middle LAW
ages, Dutch Trader were UNABLE TO
NAVIGATE, even on the European seas under the
domination of “Mare Clausum” law of the sea legal regime;
ON THE CONTRARY, in the same time the Nusantara’s
Communities (Javanese, Makassar-Bugis, Moluccas, etc)–
base on Adat Law--, since 2000 BC has been FREELY
NAVIGATE and conducted a fast FREE TRADE & FAIR
COMPETITION with Chinese, Indian, Arabs, British,
French, Spanish, Portuguese & other foreign traders.
• Hugo Grotius converted the principles and practices of
Nusantara’s (East Indies) Adat Law into “mare
liberum/freedom of the seas” legal doctrine on his treaties
“MARE LIBERUM” (1608), elevated his name as “the
founding father of modern international law”.
ADAT [LAW]
• According to Prof. Amura, the term is derived
from the Sanskrit term; it has been used by
the Minangkabau people approximately 2000
years ago; According to tradition derived from
two words, a and dato. A means not and dato
means something material.
• In Indonesian-Malay culture it is the set of
cultural values, norms, customs and
practices found among specific ethnic groups
in Indonesia, the southern Philippines and
Malaysia.
DEVELOPMENT OF NUSANTARA’S LEGAL
CULTURE
NUSANTARA’S  INDONESIA’S SOCIETIES
(INTELLECTUAL COMMUNION)
NUSANTARA’S LEGAL CULTURE
NUSANTARA’S LEGAL VALUES
LANGUAGE PANCASILA’S VALUES
NUSANTARA’S ADAT LAW & PRACTICES
MODERN NATIONAL & INTERNATIONAL LAW

“ADAT LAW AS SOURCES OF
NATIONAL & INTERNATIONAL .
LAW”
UNITARY DIVERSITY
LEGAL
VALUES
UNITY IN DIVERSITY LEGAL

PRINCIPLES
• .
PANCASILA
IN UUD 1945 LEGAL NORMS
ADAT LAW LEGAL ACTS
“ADAT LAW’ PRACTICES Of FREE TRADE, FAIR COMPETITION & FREEDOM OF NAVIGATION
HUGO GROTIUS: “MARE LIBERUM” (THE ORIGIN OF MODERN INTERNATIONAL LAW).

><
“WAWASAN NUSANTARA” - “ARCHIPELAGIC PRINCIPLES” IN UNCLOS 1982
”11 TO 9 DOTTED
AgusLINES IN SOUTH
Brotosusilo, 2017. CHINA SEA” 35
“PRODUCTION SHARING CONTRACT” IN PRIVATE INTERNATIONAL LAW
VALUE SYSTEM IN ADAT LAW
• A research by Soepomo (the drafter of
Indonesian Constitution of 1945) validated
that the harmony among the Indonesian
Adat Law exists in the legal culture which is
more appreciated communalism than
individualism values.
• Selo Soemardjan research (Selo
Soemardjan: "Modern Business in Cross
Cultural Perspectives“) revealed that the
customary law is more attached to
romanticism than rationalism values.
ADAT LAW: SPIRITUALISM >
MATERIALISM .
Suzanne A. Brenner research (Suzanne April

Brenner: The Domestication of Desire, Women,
• .
Wealth and Modernity in Java. Princeton University

Press, 1998); Boeke’s study (Indonesian
Economics: The Concept of dualism in Theory and
Practice, by Dutch Scholars. The Hague, W. Van
Hoeve Publishers, 1961); and Van der Kolff’s as
well as Schrierke’s opinions (“Indonesia”, Cornell
University, No.. 14, October 1972) are in line with
the opinion of Sir Thomas Stamford Raffles more
than two centuries ago (History of Java, 1817), that
the Indonesian people are more adheres to
spiritualism than materialism
values. 37
.
.
HE ORIGIN OF HUGO GROTIUS VALUES ON INTERNATIONAL LAW WESTERN LAW
IN THE AGE OF REASON
THE GLOSSATORS ERA:
SCHOLASTIC METHOD OF REDISCOVERY OF THE LEGAL THE POST GLOSSATORS:
EUROPE UNIVERSITIES
ANALIZING & SYNTHESIZING WRITING COMPILED UNDER TEACHING OF LAW
LEGAL STUDY JUSTINIAN
“CORPUS JURIS”
SCIENTIFIC METHOD OF THE ISOLATION OF ECCLESIASTICAL

THE STUDY OF LAW SOURCES OF LAW
ARMINIANISM:
SALVATION DEPENDED ON THE INDIVIDUAL FREE CHOICE
THROUGH FAITH TO BECOME BELIEVER
INDIVIDUAL STATUS INDEPENDENT OF GOD
“ETIAMSI DAREMUS NON ESSE DEUM”
INDIVIDUALISM SOCIANISM/RAMISM:
RATIONALISM
MODE OF REASONING
Agus
Agus Brotosusilo,
Brotosusilo, 1983.
2005 38
VALUE SYSTEM IN
INTERNATIONAL/WESTERN LAW
• In the contrary, Grotius’s ideology --strongly
influenced by Arminianism which raised the
spectre of individual ability and free will--, colouring
the western as well as international law legal
culture which more respected individualism than
communalism values.
• The ideology also dominated by Socinianism-
Ramism --that extinguished the conception of
authority as derived from transcendence and
revelation--, which more praised rationalism than
romanticism values.
• In addition, the ideology deeply dominated by
Protestant virtue which more appreciated
materialism than spiritualism values.
MAX WEBER’S PROTESTANT
ETHIC:
.
• .
• Simplicity in life-style - Asceticism.

• Vulgar display of wealth were scorned in
Protestant Ethic’s; rather, people should
practice “worldly asceticism” to deny
pleasure and to live in this world as if one
had taken a vow of poverty.
• The practice “worldly asceticism” is a
precondition for the accumulation of
capital required to begin new business.
Conspicuous Consumption
Gradually, then, “worldly asceticism”
has given way to its opposite, as both
cause and consequence of industrial
capitalism (Sussman, 1985),
as Thorstein Veblen (1899) use the term
conspicuous consumption to refer to
lavish displays of wastefulness designed
to impress others with one’s ability to
throw away money.  Materialism.
Materialism aspect of God
punishment, forgiveness and grace
.
• .
God punishment for initial human

sin: a hardship to provide a raw
material for sustain.
Success as a sign of forgiveness

and grace. Success in one’s chosen
occupation (reflected in material
accumulation) seemed a clear and
simple sign of divine favour.
HUGO GROTIUS’S DOMINANT VALUES 
WESTERN LAW INTERNATIONAL LAW .
.
• Arminianism:
• .  individualism value
• .
“salvation depended on the individual free choice

through faith to become believer”;
 “individual status independent of god”:
“etiamsi daremus non esse deum”.
• Socianism/Ramism:  rationalism mode of

reasoning.
• Protestant Work Ethics:  materialism value

Agus
Agus Brotosusilo,
Brotosusilo, 1983.
1983. 43
Value system in Adat Law
• Nusantara’s (then  Indonesian) legal
culture is more adhere to communalism
than individualism values.
• The legal culture is more appreciates

spiritualism than materialism values.
• It is more attaches to romanticism than

rationalism values.
DISTINCTION:
ADAT LAW – WESTERN LAW
ADAT LAW:
Spiritualism value > Materialism value
Communalism value > Individualism value
Romanticism value > Rationalism value
WESTERN LAW (CIVIL LAW + COMMON LAW):
Spiritualism value < Materialism value
Communalism value < Individualism value
Romanticism value < Rationalism value

THE MERIT OF ADAT LAW
OVER WESTERN LAW
Adat law does not recognize the
legal incapacity of married women,
whereas Western law, such as the
Burgerlijke Wetbook/BW (the Dutch
Civil Code)—which was introduced
into Indonesia in the middle of the
nineteenth century--, stipulates that
married women incapable of
independent legal action.
WESTERN LAW:
FREEDOM OF SEAS/NAVIGATION
LEGAL REGIME, FREE
TRADE & FAIR COMPETITION
In the middle ages, Dutch Traders were UNABLE
TO NAVIGATE the PRACTICES
European seas under the
domination of “Mare Clausum” law of the sea
legal regime; on the contrary, the Nusantara’s
(Grotius:East Indies = Javanese, Makassar-
Bugis, Moluccas, etc.) Communities–base on
Adat Law--, since 2000 BC has been FREELY
NAVIGATING the (high) seas and conducted fast
FREE TRADE & FAIR COMPETITION with
Chinese, Indian, Arabs, British, French,
Spanish, Portuguese and other foreign traders.
ANTINOM VALUES IN
CLASSICAL INTERNATIONAL
LAW (BEFORE “MARE
LIBERUM”):
ADAT LAW: - WESTERN LAW:
FREE (trade) - RESTRICTED (trade)
(Mare) LIBERUM - (Mare) CLAUSUM
OPEN (Seas) - CLOSED (Seas)
FREEDOM (Navigation) - RESTRICT (Navigat.)
(Fair) COMPETITION AGUS -BROTOSUSILO,

(Unfair) 2010.
MONOPOLIZATION
48
NUSANTARA’S GENUINE LEGAL
PRACTICE,
• DOCTRINE,
Genuine practices of AND
FREE INSTITUTION
TRADE, FREEDOM OF
SEAS/NAVIGATION & FAIR COMPETITION base on Adat
[law] and institution are Nusantara’s (then: Indonesia’s)
culture substantial contribution to the early formation of
modern international law at the beginning of the seventeenth
century.
• Free Trade, Freedom of Seas/Navigation and Fair
Competition as a daily practice in the country are the
foundation of Hugo Grotius “mare liberum/freedom of the
seas” legal doctrine; The doctrine not only influenced the law
of the sea establishment, but it also determined the
formation of the modern international trade law
IUS GENTIUM
[Latin ‘law of nations’]  ius inter
gentes
Roman law. The body of law,

taken to be common to all
civilized peoples, and applied
in dealing with the relations
between Roman citizens and
foreigners.
NUSANTARA’S/INDONESIAN RESOURCES
IN INTERNATIONAL ECONOMICS
DEVELOPMENT:
The Treaty of BREDA
Breda (was signed at
TREATY the Dutch city of
(1667)
Breda, 31 July 1667) brought to an end the Second Anglo-
Dutch War (1665–1667) in favor of the Dutch:
•In the East Indies, the Dutch secured a worldwide
monopoly on nutmeg by forcing England/UK to give up
their claim on Run (It is about 3 km long and less than 1
km wide; Run is considered to be the first English
overseas colony), the smallest Island in the Banda
Islands.
•In return The English/UK kept the island of Manhattan,
conquest of New Netherland, producing the British
Colonies (than the US States) of New York, New Jersey,
Pennsylvania, and Delaware.
.
.
HUGO GROTIUS: (1583 – 1645)
“DE JURE PRAEDAE” (1604 – 5)
Part XII: “MARE LIBERUM” (1608)
“MARE LIBERUM SIVE DE JURE QUOD BATAVIS

COMPETIT AD INDICANA COMMERCIA DISSERTATIO”
(FREEDOM OF THE SEAS OR

THE RIGHT WHICH BELONG TO THE DUTCH
TO TAKE PART IN COMPETITION ON THE EAST INDIAN TRADE).
“DE JURE BELLI AC PACIS”
PROLEGOMENA, PARA. 11:
“ETAMSI DAREMUS NON ESSE DEUM”
RENE DESCARTES:
Agus
Agus Brotosusilo, 1596 - 1690
Brotosusilo, 1983.
2005 52
INDEPENDENCY AND SOVEREIGNTY OF
NUSANTARA’S COMUNITIES
Grotius treaties “MARE LIBERUM” (1608) acknowledged
the existence of organizes political entities in the East
Indies which he considers as independent and sovereign.
Independency and sovereignty are not only the root of
freedom of seas/navigation legal regime , but also the
source of free trade and fair competition doctrine in
international trade law. He wrote:
“These islands of which we speak, now have and always
have had their own Kings, their own government, their
own laws and their own legal systems ...”
(“Habent insulae istae quas dicimus et simper
habuerunt suos reges, suam rempublicam, suas leges,
suas iura ...”)
“MARE LIBERUM” (1)
• Chapter I:
Local communities independency and sovereignty
in the “East Indies” (Java, Ceylon and
Moluccas)  free trade practice
• Chapter I and V-VII:

The right to freedom of seas/navigation/seas in the
Indian Ocean  freedom of seas legal
doctrine
• Chapter VII-XIII:
The right to free commercial intercourse 
free trade legal doctrine
“MARE LIBERUM” (2)
Chapter IX:
The existence (for centuries) of a
fast free trading area in the “East
Indies”:
Local communities Traders
(Javanese, Moluccas, etc.)
vs. Chinese, Indian and Arabs
Traders . Agus Brotosusilo, 1983. 55
Contribution of Indonesia’s Institutions
and Legal Culture to International Law
It is beyond the reasonable doubt that the
status of independency and the existence of
sovereignty among the East Indian
community is the main determining factor on
the struggle between Grotius’s doctrine of
“mare liberum” and Freitas’s “mare
clausum” in the formation of modern
international law in the early seventeenth
century.
(Grotius reference of “East Indian” is made
particularly to Java, Ceylon and Moluccas.)
“Nusantara (East Indian)” ‘s Culture:
free trade & free competition practice of Adat
.
.
[law]
• .
• .
Independency sovereignty
“mare liberum”:
free trade & free competition legal doctrine
freedom of high-seas/navigation legal regime

Transformation of
Populists oriental free trade customary
practice --> Liberal western/international legal
doctrine
• In Grotius treatise, the transformation of oriental
free trade customary practice into the (western
international law) legal doctrine involves the act
of converting the source of the law from the
populists oriental legal culture value system into
the liberal western one.
• More dramatically, Max Weber advocated that the

protestant ethics –which is the main root of
western legal culture--, is the foundation of
capitalism.
• Capitalism is system of exploitation.
.
PROVISIONAL CONCLUSION

ADAT LAW ON FREE TRADE, FREEDOM OF
SEAS/NAVIGATION, AND FAIR COMPETITION
• The establishment SINCE 2000
of modern BC.
international law has been
INDEBTED to the Nusantara’s/Indonesian Legal Thought &
Practices ( ADAT LAW).
• Globalization of law demonstrates not only the significant
role of Indonesian Adat Law on the origin, formation, and
establishment of modern international law, but the
globalization also underlines the Great Impact of
Nusantara’s/Indonesian Legal System Globalization to
International Economics Development.
• The principles of FREEDOM OF NAVIGATION/HIGH SEAS,
FREE TRADE, and FAIR-FREE COMPETITION as the
“backbone ” of modern international law adopted by Hugo
Grotius in “MARE LIBERUM” from the GENUINE Legal
Thoughts and practices of Nusantara’s (then, Indonesian)
communities ADAT LAWAgussince 2000 BC.
Brotosusilo, 1983. 60
THE COLLAPSE OF THE SPICES SEA
LANE + THE SILK-ROAD
IN THE
• In the middle ages, CRUSADES
the Europeans are suffering its worst-
ever economically with the collapse of the Middle-East
SPICES SEA LANE (Maritime Passage) and the Silk-
road with the fall of CONSTANTINOPLE (1453) to Turk
and converted into ISTANBUL in the Crusades.
• The European economic crisis elevates the price of
spices from Nusantara/Indonesia sky-rocketing: in the
time the price of nutmeg and gloves is higher than gold.
• The disconnections of the Middle-East Spices Sea
Lane and the Silk-road land-route prompted Dutch
traders to find a way by sea to obtain spices from the
Nusantara archipelago, but these efforts hampered by
the principle of "Mare Clausum".
THE MERIT OF ADAT LAW
OVER WESTERN LAW
In the Middle Ages, Dutch Traders were unable to
navigate on the European seas under the
domination of “MARE CLAUSUM” law of the
sea legal regime; on the contrary, since 2000
BC the Nusantara’ Communities (Grotius call the
communities as “East Indies”, consist of
Javanese, Makassar-Bugis, Moluccas, etc.)” –
base on ADAT LAW--, for centuries has
been freely navigated and conducted a fast free
trade & fair competition with Chinese, Indian,
Arabs, British, Spanish, Portuguese and other
foreign traders. Agus Brotosusilo, 1983. 62
ONLY PRACTICES OF ADAT LAW WERE ABLE
TO DEFEAT THE PRINCIPLE OF THE "MARE
CLAUSUM" LAW OF THE SEA LEGAL REGIME
• When the Dutch traders asked Hugo Grotius help to find the
legal argument to overthrow the “Mare Clausum” legal
principle, Grotius' search of ALL WESTERN LEGAL
SYSTEMS found there is NO WAY TO ABOLISH THE
"MARE CLAUSUM" law of the sea legal regime.
• Eventually, Grotius found that ONLY FREEDOM OF
NAVIGATION/THE SEA, FREE TRADE AND FAIR
COMPETITION PRINCIPLES BASED ON ADAT
LAW--NOT THE WESTERN LAW– legal thoughts and
practices by Nusantara’s communities for centuries (He
refers to the community as "East Indian", consisting of
Javanese, Makassar-Bugis, Mollucas, etc.) were ABLE to
DEFEAT the principle of Agusthe "MARE
Brotosusilo, 1983. CLAUSUM". 63
ANTINOM VALUES IN
CLASSICAL INTERNATIONAL
LAW (BEFORE “MARE
LIBERUM”):
ADAT LAW: - WESTERN LAW:
(Mare) LIBERUM - (Mare) CLAUSUM
OPEN (Seas) - CLOSED (Seas)
FREEDOM (Navigation) - RESTRICT (Navigat.)
FREE (trade) - RESTRICTED (trade)
(Fair) COMPETITION AGUS -BROTOSUSILO,

(Unfair) 2010.
MONOPOLIZATION
64
ADAT LAWS AS THE BASIS FOR
HUGO
GROTIUS "MARE LIBERUM (1608)"
• The practices of international free-trade and freedom of
seas/navigation applied by the people of the Nusantara
(then, Indonesia) based on their Adat Laws became the
basis for the work of Hugo Grotius "Mare Liberum
(1608)", which raised his name as "The founding father of
Modern International Law".
• The legal logic is very simple: if the people of the
Nusantara archipelagoes were Free to Sail/Navigate to
every-where a cross the Oceans (to reach Australia,
Africa, and Arabic continents); Free to Trade with any-
one (Chinese, Indian, Arabic, English, Spanish,
Portuguese and other foreign traders), then the Dutch
merchants must also has the rights to sail/navigate &
to trade spices in the Nusantara’s
Agus Brotosusilo, 1983. archipelago. 65
SIMULTANEOUS LEGAL
• DISRUPTIONS
From IUS GENTIUM  to MODERN
INTERNATIONAL LAW;
• From MARE CLAUSUM  to MARE LIBERUM; and
• From ADAT LAW principles  to GROTIUS’S

INTERNATIONAL LAW:
ADAT LAW PRINCIPLES (2000 BC – NOW):
– FREDOM OF NAVIGATION principle;
– FREE TRADE principle; and
– FAIR COMPETITION principle.
“MARE LIBERUM” (Hogu Grotius, 1608)

.
THE SECOND WAVE
The Agrarische Wet (Agrarian Law), 1870

a red carpet to invite
the incoming foreign’s origin private
capitalists
THE AGRARISCHE WET, OF 1870.
• In 1870 the Dutch government issued the
Agrarische Wet (Agrarian Law) in its
occupation territory, Indonesia.
• This law signaled the opening of the gate
and red carpet for private capitalists
(mostly Western/European’s origin) to
participate directly and freely in the
exploitation of Indonesian fertile land,
abundant of natural resources and cheap
labor. Agus Brotosusilo, 1983. 68
EIGENDOMSRECHT
The Agrarische Wet (Agrarian Law) of
1870 facilitate the development of
Indonesian capitalist by extending to
them the opportunity to obtain rights of
European ownership over land
(eigendomsrecht), and therefore
promoting their relationship with the
non-Indonesian private capitalists
(Article 4), i.e. the Europeans and
Chinese. Agus Brotosusilo, 1983. 69
.
THE THIRD WAVE
The Non-violence South China Sea
Conflict Resolution Style:
Republic of Indonesia
vs.
People Republic of China
Agus Brotosusilo
Faculty of Law – Universitas Indonesia
THE CHINESSE NINE DOTTED LINES_MAP
• .

Source : Aseanchat.com;
The “nine-dotted line”
• The “nine-dotted line” is composed of nine
dashes or the “U-shaped line” in the South
China Sea, since this reflects the shape of
the dotted line (see Figure 1).
• The dotted line encloses the main island

features of the South China Sea: the Pratas
Islands, the Paracel Islands, the Macclesfield
Bank, and the Spratly Islands. The dotted
line also captures James Shoal which is as
far south as 4 degrees north latitude.
Zhongguo nanhai daoyu tu
• The Map of Chinese Islands in the South
China Sea (Zhongguo nanhai daoyu tu)
published by the Committee in April 1935
declared that China’s southernmost
boundary should reach the 4º northern
latitude.
• Thus the James Shoal was marked as
being within the Chinese boundary.

Haijiang nan zhan hou zhi
zhongguo quantu
• On the second map, The Map of Chinese Domain in the
South China Sea (Haijiang nan zhan hou zhi zhongguo
quantu) in the book The New Map of Chinese Construction
(Zhongguo jianshe xin ditu), edited by Bai Meichu in 1936,
the Pratas Islands, the Paracel Islands, the Macclesfield
Bank, and the Spratly Islands were drawn as being within
Chinese territory in the South China Sea.
• The boundaries of the islands were marked by national
boundary lines showing that these islands belong to
China.
• The southernmost national boundary line of the South
China Sea Islands area was indicated as being the 4º
northern latitude. The James Shoal was indicated as being
within the national boundary.
An 11-dotted line
• For the purpose of specifying China’s territorial
sphere in the South China Sea, the Geography
Department of the Ministry of Internal Affairs
printed The Location Map of the South China
Sea Islands (Nanhai zhudao weizhi tu) in 1947.
• On this map, the Pratas Islands, the Paracel
Islands, the Macclesfield Bank, and the Spratly
Islands were shown as being part of China with
the use of an 11-dotted line. The
southernmost boundary was marked at
4º northern latitude.
Nine-dotted line
• On the Map of China produced after the
creation of the People’s Republic of China in
1949, the eleven-dotted line in the South
China Sea appears to follow the old maps.
• It was not until 1953, after Premier Zhou
Enlai’s approval, that the two-dotted line
portion in the Gulf of Tonkin (around Natuna
Island) was deleted.
• Chinese maps published since 1953 have
shown the nine-dotted line in the South
China Sea. Agus Brotosusilo, 1983. 76
RI-PRC: CONFLICT ON
SOVEREIGNTY RIGHTS,
NOT ON SOVEREIGNTY
• The International (Gentlement) Agreement to
delete the two-dotted line in the Natuna
Islands in 1953 is not only based on Mutual
Respect, Mutual Trust, and Mutual Benefit but
also on THE PRINCIPLE OF RECIPROCAL.
• •In the Natuna Islands area between RI-PRC
there has been no conflict on SOVEREIGNTY,
yet there has been conflicting on SOVEREIGN
RIGHTS; however, since RI and PRC both are a
member of UNCLOS 1982, the problem can be
easily settled by its law of the sea rules.
.
THE FOURTH WAVE
Indonesian “POLITICO-LEGAL DOCTRINE” :

WAWASAN NUSANTARA/ARCHIPELAGIC OUTLOOK
 ARCHIPELAGIC STATE Principle in UNCLOS-
19821983.
Agus Brotosusilo, 78
POLITICAL DOCTRINE AND LEGAL PRINCIPLES
ON INDONESIA’S TERRITORY  UNCLOS 1982
Territorial Zee Maritime Kringen Ordonantie/TZMKO 1939:
(Inspired by Hugo Grotius (the founding father of
international law) principle of "MARE LIBERUM / FREEDOM OF THE SEAS":
Indonesian Territorial Sea is only 3 miles, outside of each Indonesian island;
The Indonesian islands and territory are SEPARATED by INTERNATIONAL
WATERS
COUNTERED BY
PANCASILA’S VALUES of Indonesian Nation & Territorial Unity/NKRI: 
“POLITICAL DOCTRINE:
WAWASAN NUSANTARA (ARCHIPELAGIC OUTLOOK) 
Djuanda Declaration (December 13, 1957) (to defeat TZMKO 1939):
Indonesian Territorial Sea is 12 miles from Archipelagic baselines (straight baselines
from the outermost point of the outermost islands);
All Indonesian islands an territory are CONNECTED by
ARCHIPELAGIC WATERS base on the ARCHIPELAGIC STATE PRINCIPLE of
UNCLOS 1982 Agus Brotosusilo, 1983. 79
Archipelagic State Principle in UNCLOS-1982
United Nations Conference on the Law of the Sea/UNCLOS-
1982:
Archipelagic State Principle  international law of the sea
legal regim:
Article 47
1. An archipelagic State may draw straight archipelagic
baselines joining the outermost points of the outermost
islands and drying reefs of the archipelago provided that within
such baselines are included the main islands and an area in which
the ratio of the area of the water to the area of the land, including
atolls, is ...
(RI’s ratification: Law No.17/1985);

Law No.6/1996  Indonesian waters (Rev.→ Act No.4/Prp.
1960);
Oceanic Law of 2014. Agus Brotosusilo, 1983. 80
Article 49: Legal status of archipelagic waters, of
the air space
over archipelagic waters and of their bed and
subsoil
1. The sovereignty of an archipelagic State extends to the waters
enclosed by the archipelagic baselines drawn in accordance with
article 47, described as archipelagic waters, regardless of their
depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters,
as well as to their bed and subsoil, and the resources contained
therein.
3. This sovereignty is exercised subject to this Part.
4. The regime of archipelagic sea lanes passage established in this Part
shall not in other respects affect the status of the archipelagic waters,
5. including the sea lanes, or the exercise by the archipelagic State of its
sovereignty over such waters and their air space, bed and subsoil, and
the resources contained therein.
THE LEGAL DISRUPTION IN
INDONESIAN INLAND WATERS
From FREEDOM OF THE SEA  to

ARCHIPELAGIG SEA LANES
(UNLIMITED) NAVIGATION
(LIMITED) NAVIGATION

Indonesian Territory: TZMKO 1939
( August 17, 1945 – December 13, 1957)
BRUNAI

Indonesian Territory:
Djuanda Declaration, 1957

UNCLOS 1982:
INDONESIAN ARCHIPELAGIC BASELINES

INDONESIAN GEO-POSITION
The largest archipelago in the world;
Between two (2) Ocean and 2 (two) continents;
Strategic Role of East-West and North-South;
Consists of > 17,504 islands;
Coastline: ± 81.000 Km;
Mainland: ± 1.900.000 km2
Water Sovereignty : ± 3.100.000 km2
Sovereign Rights : ± 3,000,000 km2
Under Negotiation Sovereign Rights:
± 3,000,000 km2
SOVEREIGNTY
&
SOVEREIGN RIGHTS
in the sea.
24 Nm 200 Nm

Indonesia as an Archipelagic State:
UNCLOS 1982
ARCHIPELAGIC STATES
Article 46: Use of terms
For the purposes of this Convention:
(a) "archipelagic State" means a State constituted wholly by one or more
archipelagos and may include other islands;
(b) "archipelago" means a group of islands, including parts of islands,
interconnecting waters and other natural features which are so closely
interrelated that such islands, waters and other natural features form an
intrinsic geographical, economic and political entity, or which historically
have been regarded as such.
Article 47
Archipelagic baselines
1. An archipelagic State may draw straight archipelagic baselines joining
the outermost points of the outermost islands and drying reefs of the
archipelago provided that within such baselines are included the main
islands and an area in which the ratio of the area of the water to the area of
the land, including atolls, is between 1 to 1 and 9 to 1.
.

MAJAPAHIT KINGDOM:
(Slamet Muljana: A Story of
Majapahit, (Singapore: University Press, 1976)
Majapahit Kingdom lying from Sri Langka to Papua:
(1) Sumatera:
•Jambi, Palembang, Dharmasraya, Kandis, Kahwas, Siak, Rokan, Mandailing, Panai,
Kampe, Haru, Temiang, Parlak, Samudra, Lamuri, Batan, Lampung dan Barus;
(2) Kalimantan (Tanjungpura):
•Kapuas, Kantingan, Sampit, Kota Lingga, Kota Waringin, Sambas, Lawai,
Kandangan, Singkawang, Tirem, Landa, Sedu, Barune, Sukadana, Seludung, Solot,
Pasir, Barito, Sawaku, Tabalung, Tanjung Kutei, dan Malano;
(3) Malaya Peninsula (Hujung Medini):
•Pahang, Langkasuka, Kelantan, Saimwang, Nagor, Paka, Muar, Dungun, Tumasik
(Singapura), Kelang, Kedah, dan Jerai;
(4) Eastern-ward of Jawa:
•Bali, Badahulu, Lo Gajah, Gurun atau Sukun, Taliwung, Dompo, Sapi, Gunung Api,
Seram, Hutan Kadali, Sasak, Bantayan, Luwuk, Makassar, Buton, Banggawi, Kunir,
Galian, Salayar, Sumba, Muar (Saparua), Solor, Bima, Wandan (Banda), Ambon or
Maluku, Wanin, Seran and Timor.
(4) Sri Langka (13th century). AGUS BROTOSUSILO, 2010. 90
.
THE FIFTH WAVE
Javanic Adat law

as a source of International law
Sources:
(Agus Brotosusilo: Kompas Daily, Oct. 1980)
(Kirsten Bindemann, Production-Sharing
Agreements: An Economic Analysis, Oxford: Oxford
Institute for Energy, October 1999, p. 10 ).
PRIVATE
INTERNATIONAL CONTRACT
LAW
From: To:
PROFIT-SHARING CONTRACT 
PRODUCTION-SHARING CONTRACT
ADAT LAW  PRIVATE

INTERNATIONAL LAW

 To
PRODUCTION-SHARING
CONTRACT
• In the 1966 Indonesia replaced
the Profit-Sharing Contract on oil and
gas mining exploitation into
a Production-Sharing Contract/PSC.
• In relatively short time this Production-
Sharing Contract become an accepted
practice model in the international
business activities on oil and gas
mining (e.g. in Soviet Union and in Gulf
Countries). Agus Brotosusilo, 1983. 93
JAVANIC ADAT LAW AS A SOURCE OF
MODERN INTERNATIONAL LAW
(1)
Production-Sharing Contract/PSC
is a legal principle derives from
Javanic Adat law of Bagi-hasil, the
legal principle of product-sharing
cooperation between the owner of
the agricultural land with the farmer
that cultivates the land.
“BAGI-HASIL/PRODUCTION-SHARING” CONTRACT
The product-sharing scheme agreement between the land

owner (O) and the land-cultivator farmer (F) among others are :
– Maro : 50% (O) - 50% (F);
– Mertelu : 33.3% (O) - 66 .7% (F);
– Mrapat : 25% (O) - 75% (F);
– Mrolimo: 20% (O) -80%(F); etc.
The tipe of product-sharing Scheme is depend on several

factors, among others are:
– the nature of the land (wet or dry land);
– the fertility of the land;
– Who provide the sheeds;
– Who provide the fertilizer; etc. 1983.
Production Sharing Contract/PSC
• Production Sharing Contract/PSC first
implementation was in Indonesia in the 1966;
today they are often used in the international oil and
gas business.
• In production sharing agreements the country's
government awards the execution of exploration and
production activities to an oil company; the oil company
bears the mineral and financial risk of the initiative and
explores, develops and ultimately produces the field as
required. When successful, the company is permitted to
use the money from produced oil to recover capital and
operational expenditures, known as "cost oil". The
remaining money is known as "profit oil", and is split
between the government and the company, at a rate of
about 80% for the government, 20% for the company. 96
.
THE SIXTH WAVE
The Indonesian Investment Law:

a red carpet to invite
the incoming foreign capitalists

THE INDONESIAN INVESTMENT LAW OF 1967
A century after the promulgation of the Agrarische
Wet, 1870 capitalistic legal product, a red carpet to
invite the incoming foreign PRIVATE capitalists --
following its success story to defeat Soekarno’s
anti-capitalists government--, Soeharto’s
Authoritarian-New Order regime enacted The
Indonesian Investment Law of 1967 --the similar
law as a red carpet to invite the incoming foreign
MULTI-NATIONAL capitalists--, to participate
directly and freely in the exploitation of cheap
human resources (which can be paid for only with
minimal living costs), abundant natural resources,
and huge consumers’ market in Indonesia.
SOEHARTO’S NEW ORDER REGIME
INCONSTITUTIONAL CONDUCT
Based on The Indonesian Investment Law
of 1967 Soeharto’s New Order regime –
contrary to the 1945 constitution--, has
been handed over --from the state to the
foreign Trans-National Corporations
/TNC (Freeport, foreign oil companies
etc.)--, the powers to manage sectors of
production which are important for the country
and affect the life of the people as well as
economic activities that affects the basic needs
of most of the people.
THE DUTCH AGRARISCHE WET, 1870;
THE INDONESIAN INVESTMENT LAW OF 1967; AND,
THE INDONESIAN OMNIBUS LAW NO. 11, 2020.
• The Agrarische Wet – 1870, a capitalistic legal product, was a red
carpet to invite the incoming foreign PRIVATE capitalists
investment.
• A century after the promulgation of The Agrarische Wet – 1870, --
following its success story to defeat Soekarno’ anti-capitalists
government--, Soeharto’s Authoritarian New Order regime enacted
The Indonesian Investment Law of 1967 --the similar law as a red
carpet to invite the incoming foreign MULTI-NATIONAL capitalists
investment--, to participate directly and freely in the exploitation of
cheap human resources (which can be paid for only with minimal living
costs), abundant natural resources, and huge consumers’ market in
Indonesia.
• The Indonesian Omnibus Law No.11, 2020 on Job Creation is an
invitation to the incoming ALL foreign capitalists investment, to
secure the RCEP (the regional comprehensive economic
partnership)’ Agreement on foreign investment..
THE REGIONAL COMPREHENSIVE ECONOMIC
PARTNERSHIP/RCEP AGREEMENT
• The Regional Comprehensive Economic Partnership
(RCEP) Agreement is an agreement to broaden and
deepen ASEAN’s engagement with Australia, China,
Japan, Korea and New Zealand.
• Together, these RCEP participating countries account
for about 30% of the global GDP and 30% of the world
population.
• The objective of the RCEP Agreement is to establish a
modern, comprehensive, high-quality, and mutually
beneficial economic partnership that will facilitate
the expansion of regional trade and investment and
contribute to global economic growth and
development. Agus Brotosusilo, 1983. 101
RCEP AGREEMENT, Chapter 10:
• Accordingly, it willInvestment
bring about market and
employment opportunities to businesses and people in
the region.
• The RCEP Agreement will work alongside and support
an open, inclusive, and rules-based multilateral trading
system.
• The Investment Chapter aims to create an enabling
investment environment in the region.
• This Chapter contains provisions covering THE FOUR
PILLARS OF INVESTMENTS - protection,
liberalisation, promotion, and facilitation;
• These provisions upgrade and enhance the existing
ASEAN Plus One FTAs. Agus Brotosusilo, 1983. 102
TRADE RELATED
INVESTMENT MEASURES (TRIMS)
• Chapter 10 of RCEP Agreement includes a most-
AGREEMENT
favoured-nation treatment clause, and commitments on
the prohibition of performance requirements that go
beyond their multilateral obligations under the WTO Trade
Related Investment Measures (TRIMS) Agreement.
• This Chapter also includes a Schedule of Reservations
and Non-Conforming Measures which provides for the
Parties’ investment commitments using the negative list
approach with standstill and ratchet mechanism.
• Lastly, this Chapter provides for improved investment
facilitation provisions which also address investor
aftercare, such as assistance in the resolution of complaints
and grievances that mayAgus
arise.
NO.11, 2020 ON JOB CREATION TO
SECURE THE FOREIGN CAPITALIST-
INVESTOR
• The RCEP Agreement also includes a built-in work
programme on investor-state dispute settlement
provisions.
• In order to secure the Foreign Capitalist-Investor,
Jokowi Administration promulgated the Indonesian
Omnibus Law No.11, 2020 on Job Creation.
• The unprecedented establishment of the Indonesian
Omnibus Law No.11, 2020 on Job Creation led into
an “ANOMIE” situation that increse lack of Legal
Certainty in Indonesian legal sistem.
LEGAL UNCERTAINTY IS
A DISASTER FOR THE INDONESIAN
• LEGAL UNCERTAINTY isPEOPLE
a disaster for the people of Indonesia because
it becomes a barrier to the achievement of the aim of the ORIGINAL 1945
CONSTITUTION: a just and prosperous Indonesian society through the
POPULISTS/PANCASILA economic system; or vice versa it becomes an
obstacle to the achievement of the goal of the REVISED 1945
CONSTITUTION, a LIBERAL-CAPITALISTIC economic system.
• LEGAL UNCERTAINTY prevents the achievement of a just and
prosperous Indonesian society through a populist/Pancasila economic system
because legal uncertainty will increase the opportunity for (political and/or
economic and/or military) AUTHORITIES/POWER HOLDER to
manipulates the law as a means of domination and exploitation of the
weaker PEOPLE (Karl Marx); on the other hand
• LEGAL UNCERTAINTY hinders the achievement of the goals of the
LIBERAL-CAPITALIST system because it does not create a conducive
environment for capitalists to plan for maximum business development
(Max Weber)
THE FALLACY IN INDONESIAN
• INVESTMENT
Foreign LAWtoPOLICY
Investment is only conducive National Economic
Growth if there are regulations that limit the percentage of
profits Foreign Investors may bring abroad.
• Having Indonesia’s membership in the WTO, regulations that
limit the percentage of profits foreign investors may bring
abroad cannot be made after the issuance of regulations
inviting foreign investors, because it is contrary/
inconsistent to the principles of trade liberalization in the
WTO.
• If foreign investors are free to transfer the profits earned from
their investment in Indonesia to other countries, the investor
will only take advantage of cheap human resources (which
can be paid for only with minimal living costs), abundant
natural resources, and huge consumers’
AGUS BROTOSUSILO, 2010. market in Indonesia.
106
.
THE SEVENTH WAVE
The origin of WTO:

How to avoid the 2nd coming crisis
of capitalism
(Agus Brotosusilo, et. al. : Analisis Dampak Yuridis, Sosiologis

dan Ekonomis Ratifikasi Uruguay Round/WTO;
Kerjasama Departemen Perdagangan RI dan
Program Pascasarjana
Agus Brotosusilo, 1983. UI, 1994) 107
TRADE GLOBALIZATION
The rapid development of
transportation, genetically modified
objects/GMO’s, telecommunication,
and information technologies,
supported by the fast growing of
development on international trade law
(among others: through WTO law), lead
the way into a faster, a more vary, and
a cheaper cross-border transactions.
.
.
.
GLOBALIZATION:
(LIBERALIZATION & PROTECTION)
• Production Technology, high-tech, biotech, GMO
• Trans-border Transportation/Information Tech.
• International Trade Law (e.g. WTO)
Regional Trade Vienna Convention on Bilateral Trade
Arrangements The Law of Treaties, 1969. Arrangements
IM
P RT/
EKS ORT/ IMPLICATIONS MPO R T
POR I SPO
T EK
•National Law
•Domestic Laws
Law No.7/1994
TRIP’S LAWS
CUSTOM LAW
ANTI-DUMPING LAW
SAFEGUARD LAW
Trade Law of2011.

1983. 109
.
.
Agus
Agus Brotosusilo,
Brotosusilo, 1983.
2005 110
110
.
.
Agus
Agus Brotosusilo,
Brotosusilo, 1983.
2005 111
Indonesia’s membership in the
WTO
• Indonesia ratified The Agreement Establishing the
World Trade Organization (WTO) in November 2,
1994 by the Law No. 7/1994.
• The support for trade liberalization from the
government is relatively strong in Indonesia; Indonesia
not only has been liberalized its trade regime, but the
country also taken a number of important steps to
reduce protection.
• The government not only has been created an
environment generally supportive of liberalized trade
--such as lowering tariffs and reduces non-tariff trade
barriers--, but it also has been issued reform decrees
that stipulate the reduction of taxes, tariffs and
quantitative restrictionsAguson exports and imports.
.
• .
Agus
Agus Brotosusilo,
Brotosusilo, 2011.
1983.
2007 113
113
MOST OF THE INDONESIAN PEOPLE RECENTLY
HAVE BEEN ACTED AGAINST THE WTO RULE
Despite Indonesia’s Adat Law based on

cultural heritage had significant role in the early
formation of the modern international trade
law; however, most of the Indonesian people
recently have been acted against the WTO rule
(i.e. copy right law, as part of WTO’s - TRIPS
law), since in its evolution the idea and
practice of free trade has been polluted by the
ideological values which is contrary to the
Indonesia’s legal culture values.
Agus Brotosusilo,
CULTURE AND FREE TRADE:
THE INDONESIA EXPERIENCE
• Part I illustrates the background of the
establishment of the law of the sea legal regime
and a substantial contribution of Indonesia’s
institutional and legal culture to modern
international law.
• Part II delves deeper into the ideological struggle
in the development of free trade institutional and
legal doctrine,
• Part III takes into account of the Indonesia’s
experience as a member of the multilateral trade
arrangement/WTO and how the recent
multilateral trade law has been criminalized
Indonesian people. Agus Brotosusilo, 1983. 115
Elements of legal system
• Lawrence M. Friedman defines a legal culture
–one among three elements of legal system--,
as: people’s attitude toward law and legal
system –their beliefs, values, ideas and
expectations.
• The others elements of the legal system are
structure (the persistent, long term pattern,
skeleton or frame work of the system); and
• substance (the actual rules, norms, behaviour
patterns of people inside the system).
VICTIMIZATION OF
INDONESIAN PEOPLE
Brotosusilo argue that despite of genuine
Indonesia’s legal and institutional culture
substantial contribution to idea of free
trade in the formation of international
law; however, Indonesian people –as part of
developing and less developed countries
people--, has been remain victimized as an
“international criminal” in the multilateral
trade forum by the capitalistic developed
countries interests oriented legal regime.
TRADE LEGAL REGIME:
THE DAILY LIFE
PRACTICE IN THE INDONESIAN
• The freedom of the sea & The free trade legal
ISLANDS
regime was not Grotius legal invention (in the
“MARE LIBERUM”), but it was his declaration
and adaptation to the cultural and legal practice
in the Nusantara’s (East Indies’) region.
• It was the daily life freedom of navigation & free
trade practice in the region, especially among the
Nusantara’s/Indonesian islands –the area that not
only rich of natural resources, but also wide export
markets--, which has been contributed to the
establishment of Grotius as “the founding father
of the internationalAgus
law”.
THE IDEOLOGICAL STRUGGLE IN THE
ESTABLISHMENT OF FREE TRADE LEGAL DOCTRINE
• Free trade regime as a daily life practice

in the Nusantara (East Indies) region,
especially among the Indonesian islands,
was the real cultural phenomena.
• The social, as well as legal relation among

the population --bind by
the adat/customary law--, has been
conducted base on the social harmony.
119
.
IS THERE
ANY FREE TRADE
IN THE WTO ?

The WTO is not about Free
Trade
• The exploitation nature in the formation
of the international trade law has been
multitude in the establishment of the WTO
• So far, WTO rule has been claimed as a
“free trade” legal regime; however, Dani
Rodrik denied this claim, and stressed
that if WTO is about a free trade, it does
not need so many paragraph of
regulation, but only five words:
'there shall be free trade'.
COMMENT
TO THE SUTHERLAND
REPORT :
• “... the (Sutherland) report
equates the WTO with liberal
trade.
• The reality, however, is that the
WTO is as much about
protectionism as it is about
free trade.”Agus Brotosusilo, 1983. 122
UNJUST WTO RULE: CONTRARY TO
THE “NON-DISCRIMINATION PRINCIPLE”
• The protectionism principle in the WTO’s

Agreement on Agriculture/AoA resulted
in a quite severe impact to the
developing and less developed countries.
• Contrary to its main principle --the

“non-discrimination principle”--, the
rule has been drafted and applied in
discriminated manner:
WTO RULE: DISCRIMINATIVE PRINCIPLE
Base on the WTO rule trade liberation only applied to
the most competitive products of the developed
countries:
 Trade in (Non-Agricultural) Goods;
 Trade in Services;
 Trade Related Aspects of Intellectual Property
Rights/TRIP’s; and
Trade Related Aspects of Investment/TRIM’s.
On the contrary, the WTO rule excluded the most
competitive products of the developing and less
developed countries, that is an agriculture
products/goods, from the trade liberalization,  there
is no trade liberalization in the WTO‘s
Agreement on Agriculture/AoA
. 124
“MACHIAVELLIANISM”:
Policy formation in
the WTO/Uruguay Round
In the “Symposium: WTO Negotiator Meet
the Academic-- Challenge to the Legitimacy
and Efficiency of the World Trading System”
by The Robert Schuman Centre for Advanced
Studies of the European University Institute
(EUI) at Florence, Italy, --the place of birth of
Machiavelli--, Professor Petersmann
condemned the policy formation in the
WTO/Uruguay Round as “Machiavellianism”.
“MACHIAVELLIANISM” IN WTO
RULE
• Machiavellianism in WTO rule reflected in the
establishment of the WTO’s agreements that do
not take into account the 'input-legitimacy' (like
human rights protection, democratic
procedures) and 'output-legitimacy' (like
promotion of general consumer welfare).
• The 'input-legitimacy' as well as 'output-
legitimacy' are not mentioned in WTO law;
parliamentarians and public opinion often
question the legitimacy of producer-driven WTO
negotiations and risk rejecting the negotiation
results.
Injustice in the WTO
In relation to this unjust multilateral trade
arrangement, Pauwelyn underlines:
“... the greatest benefit that developing
countries stand to reap from the world
trade system will not result from special
treatment –less free trade—but rather
from equal liberalization –freer trade--
in the export sectors of the most interest
to them, particularly agriculture and
textiles.” Agus Brotosusilo, 1983. 127
Indonesian people vs. WTO rule
• Despite none of Indonesian people dare to state
that he/she will not breach the law on copy right --
as part of WTO rule on TRIP’S--, however, it is not
their fault at all; Their cultural heritage is consists
of a value system which has been more
appreciated communalism, romanticism, and
spiritualism values.
• In the contrary, the law on copy right has been
much more dominated by individualism,
rationalism, and materialism values;
• It is very difficult –almost impossible--, to the
Indonesian people to act in a manner that
contradicts to their legal culture; No wonder, since
the culture has already been socialized, even
institutionalized to Indonesian for generations.
“ANOMI” AMONG INDONESIAN PEOPLE
Unfortunately, when Indonesian people act
according to their legal culture, they have
been condemned as criminal before the
copy rights law*, under the TRIP’s/WTO
rule; This condemnation justified when
Indonesia ratified its membership in the
WTO forum.
* (Law Number 28 of 2014 on Copy Rights Undang-Undang

Republik Indonesia Nomor 19 Tahun 2002 Tentang Hak Cipta,
replaced by Undang-Undang Republik Indonesia Nomor 28
Tahun 2014 Tentang Hak Cipta)
“Anomi ”
By Indonesia’s ratification of its
membership in the WTO forum, Indonesian
people has been trapped in an “anomi”
situation:
a
confusion, whether they should behave
according to their genuine legal culture, or
according to western originated copy right
law as implementation of TRIP’s/WTO rule.
“Dualism” in Indonesia legal system:
the genuine and the transplanted one
• The genuine Indonesian legal system –which is
manifested in adat/customary law--, is the legal
system which is based on oriental non-liberal
value system condensed in Pancasila (Indonesian
State Philosophy), which are more appreciated
communalism than individualism, more attached to
romanticism than rationalism, and more adhere to
spiritualism than materialism values.
• In the contrary, the transplanted legal system –
which is manifested in western liberal law, and
strongly influenced international law--, more
respected individualism than communalism, more
praised rationalism than romanticism, more
appreciated materialism than spiritualism values.
Objectives of GATT/WTO
.
1. Expanding production and trade

2. Raising standard of living and
• .
income
3. Ensuring full employment
4. Optimal use of the world’s resources
(a) sustainable development and the
need to protect and preserve the
environment
(b) to ensure that the developing
countries, especially the least
developed countries secure a better
share of the growth in international
trade Agus
Agus Brotosusilo,
Brotosusilo, 1983.
2005 132
Trade Liberalization:
Proponents vs. Opponents
• Those against trade liberalization claim that it can
cost jobs and even lives, as cheaper goods flood
the market (which at times may not undergo the
same quality and safety checks required
domestically).
• Proponents, however, say that trade liberalization

ultimately lowers consumer costs, increases
efficiency and fosters economic growth.
•
.
THE ECONOMIC IMPACTS OF THE WTO LAW:

INDONESIAN PERSPECTIVE

Impact of Partial,
Multilateral Trade on Goods Liberalization
on Real Income
(with Respect to Both Elasticities)
Adhidharma Brotosusilo, 2012 135

BOTH Trade Elasticities
Low income Asia 0.3 0.6 0.9

China 2.3 2.6 2.8
India 0.6 0.6 0.5
Upper Income Asia 1.7 1.8 1.9
Indonesia -0.6 -0.6 -0.3
Other Africa -0.2 -0.2 -0.1

Nigeria -0.3 -0.4 -0.4
South Africa -0.4 -0.3 -0.3
Maghren -0.4 -0.4 -0.3
Miditerranean -0.3 -0.4 -0.3

Gulf Region 0.0 0.5 0.6
Other Latin America 1.1 0.6 0.5

Brazil 0.2 0.3 0.3
Mexico 0.0 0.0 0.0
United States 0.1 0.2 0.2

Canada 0.4 0.4 0.4
Australia & New Zeland 0.3 0.3 0.2
Japan 1.0 0.9 0.8
European Community 1.3 1.4 1.5
European Free Trade Area 1.4 1.6 1.6
European Economics --- 0.1 0.2 0.3
Former Soviet Union 0.1 0.0 0.0
Africa -0.3 -0.3 -0.3

Low Income 1.3 1.7 1.8
Latin America 0.4 0.3 0.3
Other Developing 0.3 0.8 0.9
Countries 0.7 0.8 0.8
OECD
Agus Brotosusilo, 2005 136
Adhidharma
0.1 Brotosusilo,
0.1 2012 0.1 136
Other 0.6 0.7 0.8
THE WORLD TRADE AND ECONOMIC GROWTH
(BEFORE AND AFTER THE WTO)
“The Decreased of World Trade and Economic.
Growth since the establisment of the WTO”

.
Year GDP Trade
1985 – 1994 (%) 2,64 7,15

1995 – 2004 (%) 2,58 6,53
2008 (US Financial Crisis); 2011 (EU Financial Crisis):

the 2nd Crisis of Capitalism.
(The Great Depression of 1929: the 1st Crisis of Capitalism)
Sources: Modified from Pos M. Hutabarat,
Agus Brotosusilo,2005 Indonesian Perspective on Multilateral
2005 137
Agus
Agus Brotosusilo,
137
137
Trade Negotiations in the GATT/WTO, 2005 (from various publication)
THE PARADOXIAL IRONY:
CHINA WAS PROHIBITED FROM BECOMING .
A MEMBER OF THE WTO; IN FACT,

ITS ECONOMIC GROWTH IS THE HIGHEST
• .
2006 2007 2008 2009

USA 2.9 2.2 0.5 0.6
European 2.8 2.6 1.3 1.1
Japan 2.4 2.1 1.4 1.5
China 11.1 11.4 9.3 9.5
World 5.0 4.9 3.7 3.7
138
Source:WEO, March 2008 Agus Brotosusilo, 1983. 138

.
DOES THE REPUBLIC OF INDONESIA IS

A BENEFICIARY OR A LOOSER
IN THE WTO?

TRADE IN GOODS SECTOR:
A large defisit on BoP
.
The Indonesia’s level of consumption is

increasing overtime (except in times of
• .
economic crisis 1998) (chart 1), on the

contrary its level of manufacturing output is
slowing down (chart 2); in the same time
while the competitiveness of other countries
getting stronger, Indonesia's
competitiveness in the international market
has weakened (Pie Diagram 1); as a
result in the trade in goods sector Indonesia
suffered a large balance of payments
Chart 1:
Consumption surpassed the pre crisis level .
Consum ption (1996=100)
• .
125
120
115
110
105
100
95
90
85
80
75
1996 1997 1998 1999 2000 2001 2002 2003
Indonesia Korea Malay sia Thailand

Adhidharma
Agus Brotosusilo,
Agus Brotosusilo,
Brotosusilo, 19852012
1983. 141
141
Source: CEIC database, January 2003
Chart 2:
Manufacturing sector is slowing down .
Growth of Manufacturing Industries

% change
• .
15
10
-5
-10
-15
1994 1995 1996 1997 1998 1999 2000 2001 2002 2003
Total manufacturing Oil & Gas

Non-oil & Gas
Adhidharma
Agus Brotosusilo,
Agus Brotosusilo,
1983. 142
142
Source: BPS
Pie Diagram 1:
Indonesia: Loosing competitiveness, 2000 – 2003 .
Indoensia
Thailand
• .
11% 7%
Inner circle 2000,
Philippines 11% 11% outer circle 2003
8%
4%
14%
Malaysia 18%
Korea
60% 56%
Adhidharma
Agus Brotosusilo,
Agus Brotosusilo,
1983. 143
143
Ishihara, 2004
TRADE IN SERVICES SECTOR:
a huge defisit of BoP
.
• .
In trade in services sector (based on

the General Agreement on Trade in
Services/GATS), Indonesia has been
suffered a huge deficit of balance of
payments, since in the international
transactions in services this country is
categorizes as a "net-importing
country".
Agus
Agus Brotosusilo,
Brotosusilo, 1983.
1985 144
TRIP’s SECTOR:
a huge defisit of BoP .
Through the TRIP’s (Trade Related Intellectual

• .
Property Rights) Agreement the WTO rule also

set the protection of Intellectual Property
Rights, e.g.: Patent rights and Copyright.
Whereas Indonesia more buying than selling

products containing intellectual property; in
the TRIP’s sector Indonesia also suffered a
huge balance of payments deficit, because
they have to pay a lot intellectual property
rights of foreign products (Table 1).
145
145
Table 1:
Patent Applications .
Foreigners vs. Indonesian

Patent Simple Patent
• .
Year Indonesi Indone Foreigner Foreigner Indone Foreigner Total

an sian PCT sian
PCT
1991 34 1280 19 3 1.336
1992 67 1 3905 145 12 43 4.027
1993 38 2 2031 1733 28 43 2.140
1994 29 2305 2750 33 60 2.427
1995 61 2813 2901 61 71 3.006
1996 40 3957 59 76 4.132
1997 79 3939 80 80 4.178
1998 93 1608 109 32 1.987
1999 152 1051 168 19 3.123
2000 156 983 213 38 4.141
2001 210 813 197 24 4.147
959 3 24.685 7529 979 489 36.644
Total
% 2,77% 0,01% 71,25%

Agus 21,73%
Agus Brotosusilo,
Brotosusilo, 1983.
1985 2,83% 1,41% 100%
146
INDONESIAN PEOPLE:
INTERNATIONAL CRIMINALS
• Recently, Indonesian people have been faced a
crucial problem: They have been criminalized
in the WTO-base multilateral trade
arrangement, only because they act according
to their cultural heritages.
• There are several ways to overcome the
problem, among others is to fight it out for a
more just multilateral trade law.
• The just international law should be able to
accommodate the interest of western as well
as eastern communities.
THE JUST INTERNATIONAL LAW
If the just, free trade, international

law is to be achieved, its norm
should be able to absorb the
Nusantara’s/Indonesia’s originated
legal culture values, where the
original free trade institution and
daily practice came from.
.
THE EIGHT WAVE
Legal Transplantation:
the liberal-capitalistic ideology
has been infiltrated
the Indonesian constitution.
LEGAL DISRUPTION IN INDONESIAN
ECONOMIC SYSTEM:
Article 33, of 1945 (Revised) Constitution
paragraph 1-3  paragraph 4
Populis  Liberal
PANCASILA  CAPITALISM

ECONOMIC SYSTEM DISTINCTION:
POPULIS-PANCASILA – LIBERAL-
CAPITALISM
POPULIS-PANCASILA :
Spiritualism value > Materialism value
Communalism value > Individualism value
Romanticism value > Rationalism value
LIBERAL-CAPITALISM :
Spiritualism value < Materialism value
Communalism value < Individualism value
Romanticism value < Rationalism

Agus Brotosusilo, 2020. value 151
Legal Transplantation
• The struggle between the Genuin Indonesian
law base on Pancasila values and the
transplanted western liberal law has been
reflected in the 4 (fourth)-time amendment on
Undang-Undang Dasar/UUD 1945, the
Indonesian constitution; In the fourth
amendment, the word “efficiency” is slipped
in the 4th (fourth) paragraph of article 33 of
UUD 1945.
• The consequences of this amendment is that
the liberal-capitalistic ideology has been
infiltrated the Indonesian constitution.
MOST OF INDONESIAN LAWS IS
FUNDED BY FOREIGN ENTITIES .
IN ITS FORMULATIONS
• It was a common knowledge that
• .
foreign interest played a significant

role in the recent formulation of
Indonesia law and amendment process
of the UUD 1945.
• Dr. Eva Sundari, a member of House
of Representative (DPR) stated that at
least 76 of Indonesian laws is funded
by foreign entities in its formulations.
AGUS BROTOSUSILO, 2010.
153
153
FUNDED BY FOREIGN ENTITIES IN ITS
FORMULATIONS VIOLATED THE VALUES
OF PANCASILA
• Most of indonesian laws that funded by foreign
entities in its formulations violated the values
of Pancasila.
• Machfud M.D. (Former Chairperson of CC/MK):
– Of the approximately 400 lawsuit complaints
submitted to the Constitutional Court/CC
(MK), from August 2003 to May 2012, around
27 percent were canceled.
– The cancellation was carried out because
most of these laws VIOLATED THE VALUES
OF PANCASILA. Agus Brotosusilo, 1986. 154
C.E. Baker:
Philosophy and Public Affairs, 1975
• Efficiency is the key word for The
Economic Analysis of Law
perspective; this perspective has
criticised by Baker in Philosophy and
Public Affairs (1975) not only as
reflection of free market orientation, but
also as capitalist ideology.
• Teleologically, Ronald Dworkin
questioned whether efficiency is a legal
purpose. Agus Brotosusilo, 1983. 155
Coleman: Ethics, 1984.
• Coleman: if rights are assigned based on
.
“efficiency”, the richer not only get richer,

• .
but because their newly acquired

entitlements increase their wealth further,
they are in an even better position
to increase their wealth again by
securing more rights on the grounds that
their doing so is required by efficiency.
• Thus, efficiency not only depends on prior
wealth inequities; pursuing efficiency
leads inevitably to further inequities.
AGUS
AgusBROTOSUSILO,
Brotosusilo, 1983.
2010. 156
Indonesia:
Gini index a rise in income
inequality; while experiencing
.
• An analysis economic
• .
growth
of Indonesia’s Gini index indicates a
rise in income inequality at the same time that
Indonesia has been experiencing economic
growth.
• The Gini index has been rising since 1999,
when the index read 0.31. The index read 0.37
in 2009, 0.38 in 2010, 0.41 in 2011, and 0.42 in
2012.
• At the same time, the economy grew 4.58
percent in 2009, 6.1 percent in 2010 and 6.5
percent in 2011. Agus Brotosusilo, 1983.
AGUS BROTOSUSILO, 2010.
157
157
• Academics consider any Gini index above 0.4 as
.
dangerous to social stability as it may arouse discontent

.
among the poor due to a rising income gap.

• This is further reinforced by data from the Central
Statistics Agency (BPS) on the distribution of income. In
1999, the top 20 percent of income earners held 40.57
percent of total household income; In 2011, the top 20
percent held a staggering 48.42 percent of total
household income.
• By contrast, the bottom 40 percent of income earners held
21.66 percent of total household income in 1999 and only
16.85 percent in 2011; The middle class is also affected, with
the middle 40 percent of income earners holding 34.73
percent of total household income in 2011, down from 37.77
percent in 1999.
•
AGUS
AgusBROTOSUSILO,
Brotosusilo, 1983.
2010. 158
The Gini index .
• The Gini index is one way of portraying how

income is distributed within a nation and is
• .
a measure between 0 and 1.

• A measure of 0 indicates a perfectly equal
society.
• A measure of 1 indicates a most unequal
society – 100 percent of total household
income is held by a single person.
•
.
V. Conclusion

.
CONCLUSION: #1

LEGAL SYSTEM GLOBALIZATION TO THE
MODERN INTERNATIONAL LAW
• The establishment DEVELOPMENT
of Modern International Law, Archipelagic
State Principle in UNCLOS-1982, and Production Sharing
Contract/PSC has been INDEBTED to the GENUINE
Nusantara’/Indonesian Legal Thought & Practices: ADAT
LAW HARMONIOUS VALUES.
• Globalization of law demonstrates not only the significant role
of Indonesian Adat Law on the origin, formation, and
establishment of modern international law, but the
globalization also underlines the Great Impact of
Nusantara’s/Indonesian Legal System Globalization to
International Economics Development.
• The principles of FREEDOM OF NAVIGATION/HIGH SEAS,
FREE TRADE, and FAIR-FREE COMPETITION as the
“backbone ” of modern international law adopted by Hugo
Grotius from the practice of Nusantara’s/Indonesian ADAT LAW
since 2000 BC. Agus Brotosusilo, 1983. 162
.
CONCLUSION: #2

FUNDED BY FOREIGN ENTITIES IN ITS
FORMULATIONS VIOLATED THE VALUES
• A considerableOF
number of Indonesian laws are
PANCASILA
funded by foreign entities in its formulations (Eva
Sundari); most of these laws violated the values
of Pancasila.
• Machfud M.D. (Former Chairperson of CC/MK):
– “Of the approximately 400 lawsuit complaints
submitted to the Constitutional Court/CC (MK),
from August 2003 to May 2012, around 27
percent were canceled”.
– The cancellation was carried out mostly
because these laws VIOLATED THE VALUES
OF PANCASILA. Agus Brotosusilo, 1986. 164
RI HAS NO CLEAR TRADE POLICY
• Unfortunately, the Government of Indonesia leaves
its people in confusion, without any clear guidance,
since their country has no clear trade policy.
• Indonesia’s trade law embodied a paradoxical-
controversy: The Law Number 7 of 2014 on Trade
Law stipulates its adherence to Indonesia 1945
Constitution that advocated a populist economic
system (Art. 33) base on Pancasila values;
however, by Law No. 7 of 1995 the country ratified
its membership on the WTO which is based on a
liberal economic system.

A DISCRIMINATIVE LIBERAL FREE MARKET IDEOLOGY
IN THE LAW NUMBER 7 OF 2014 ON TRADE LAW
• The Draft of Indonesian Trade Law of 1995 (Agus

Brotosusilo, et., al., 1995) consists of a provision that
as a consequence of “Wawasan Nusantara/
Archipelagic Outlook” political doctrine (accepted
as Archipelagic State Principle in UNCLOS 1982),
Republic of Indonesia should be treated as “A
UNITARY/SINGLE MARKET”  the price of the
Basic Needs in the entire country (e.g. in Jakarta as
well as in Puncak Jaya, Papua) should be the
same.
• The provision that Republic Indonesia is “a
unitary/single market” in the Draft was deleted in Law
Number 7 of 2014 on AgusTrade Law.
.
CONCLUSION: #3

AN ANOMIE & LEGAL-UNCERTAINTY
IN
INDONESIAN LEGAL SYSTEM
• The controversy in the Indonesian Legal
System reflected in INCONSISTENCY in
Article 33 Amended 1945
Constitution resulted in an ANOMIE situation:
there is confusion among Indonesian people
whether they should be behaved based on
a populist economic system, or in contrary
based on a liberal economic system.
• This anomie situation led to a LEGAL-
UNCERTAINTY condition.
WEBERIAN & MARXIAN ON
LEGAL UNCERTAINTY
• LEGAL UNCERTAINTY prevents the achievement of
a just and prosperous Indonesian society through a
populist/Pancasila economic system because legal
uncertainty will increase the opportunity for (political
and/or economic and/or military)
AUTHORITIES/POWER HOLDER to manipulates the
law as a means of domination and exploitation of the
weaker PEOPLE (Karl Marx); on the other hand
• LEGAL UNCERTAINTY hinders the achievement of
the goals of the LIBERAL-CAPITALIST system because
it does not create a conducive environment for capitalists
to plan for maximum business development (Max
Weber) AGUS BROTOSUSILO, 2010. 169
URGENCY OF CONSISTENCY
IN THE INDONESIAN LEGAL
SYSTEM
• Indonesian Law & Development
practitioners must immediately abolish
the “DUALISM” in the Indonesian Legal
System as a source of “ANOMIE”, that
resulted in a LACK OF LEGAL
CERTAINTY.
• “DUALISM” in the Indonesian Legal
System can be abolished only by
establishing CONSISTENCY (vertically
& horizontally) in the system.
AGUS BROTOSUSILO:
• Agus Brotosusilo/AB has taught various courses at the Universitas of Indonesia since
1982; he was the initiator of the Graduate Program in International Trade Law,
Faculty of Law - Universitas Indonesia in 2007.
• AB led the First Labor’s Demonstration during the New Order Authoritarian
Government, 1979-1980, when the regime banned all forms of demonstration, to
attract foreign Capitalists investment to Indonesia (Demonstrators departed from the
terrace of AB room at the Universitas Indonesia Student Dormitory – Jl. Pegangsaan
Timur No. 17).
• AB was an off-counsel for "Ali Budiardjo‑Nugroho‑Reksodiputro/ABNR - Legal
Counsellor“, a Staff of Treaties Ratification Department, Legal Bureau – Cabinet
Secretary and wrote an Expose to the Indonesian Cabinet on the success-story of
Indonesia’s struggle for Archipelagic State Principle in the UN Conference on the
Law of the Sea/UNCLOS, 1982.
• Brotosusilo was an adviser for Indonesian Corruption Watch/ICW on Methodology
and Substantive Analysis in the Research on “Judiciary Mafia”; a Coordinator of the
Adviser for the Minister of Defense (2006 – 2011); a reviewer of the Indonesian
Defence White Book, 2008; a member of Selection Committee of Commissioners for
the Commission of Supervision for Business Competition (KPPU); and a Senior
Trade Lawyer for the Indonesia Trade Assistance Project /ITAP, a Capacity Building
Institution in the Ministry of Trade ( under the auspices of USAID); an adviser for
UNDP Program on Corruption Eradication in Papua; and an adviser for ADB on
Food Security Program.
AGUS BROTOSUSILO: ACADEMIC AND COMMUNITY
SERVICES
• A Team Leader and a researcher for: researching the Impact of the WTO Agreement and its
ratification by Indonesia (in cooperation between the Graduate Program University of Indonesia
and the Ministry of Trade, 1994); Corporate Registration Law and Policy; the ASEAN Free
Trade Area law; Copyright-Trademark and Trade Secret Laws; Comparative Antidumping Law;
International Trade Law and Policy; The Implication of Multilateral, Regional, and Bilateral
Trade Agreement for Indonesia; The InterRegional & IntraRegional Free Trade Agreement;
National Security Law, State Secrecy Law, Defense Industry Policy Law, and other topics.
• A Legal drafter laws for many Indonesian institutions, including the Supreme Court, Ministry of
Trade, Ministry of Health, Ministry of Defense and the Ministry of Industry and Trade in:
Indonesian Trade Law (1996; 2003): Public-Private Corporations Partnership Law (1993), Anti-
Monopoli Law (1992); Consumer Protection Law (1991); Domestic Trade in Goods and Services
Law (2002); Drug and Food Regulation (2005), Supreme Court Regulation on Consumer
Protection Law, State-Secrecy Law, Defense Industry Law, and National Security Law.
• Spokesperson for the Ministry of Defense at the Discussion of the State Secrecy Bill at the
Indonesian Parliament/DPR-RI (2008-2009).
• Expert Team on the National Security Bill & on the Draft Law of Defense Industry;
• Research Team Leader: "TNI-POLRI Cooperation (2013 - 2014)”, and "TNI-POLRI Conflict
(2015 - 2018)“ (Leading Research-Grant, Ministry of Research, Technology and Higher
Education).
• Legal Advisor, Defense Industry Policy Committee: (kkip:2010-2013); (KKIP:2013-2020).
• Brotosusilo is the most active Researcher and Author of Scopus Indexed International
Publications in the Faculty of Law, Universitas Indonesia in 2015 – 2020, based on the Scival
Analysis - March 8, 2021. Agus Brotosusilo, 1994. 172
AGUS BROTOSUSILO, BOOKS:
1. Sendi-sendi Hukum Perdata Internasional (Penerbit Rajawali, 1983);
2. Ilmu Sosial Dasar (Penerbit Universitas Terbuka, 1985);
3. Sistem Hukum Indonesia (Penerbit Universitas Terbuka, 1986);
4. Kekuasaan dan Masyarakat (Penerbit Rajawali, 1986);
5. Penulisan Hukum: Buku Pegangan Dosen (Asia Foundation - Konsorsium Ilmu Hukum RI,
1996);
6. Posisi Undang-Undang RI Nomor 16 Tahun 2012 Tentang Industri Pertahanan Terhadap
Konvensi-konvensi Internasional di Bidang Perdagangan dan Persenjataan (KKIP, 2015):
7. Analisis Hukum atas Permasalahan dalam Pelaksanaan Ketentuan Peraturan Perundang-
undangan Mengenai Pengadaan Alat Perlengkapan Pertahanan dan Keamanan Dari Luar
Negeri (KKIP, 2015);
8. A Strategy of Inter-State Institutional Cooperation for Conflict Resolution and Maritime Security
in Indonesia (Roudledge: Taylor & Francis Group Publisher, New York - London, 2018);
9. Optimization of Society as an Environtment Conservation Actor (Roudledge: Taylor & Francis
Group Publisher, New York - London, 2018);
10. Hukum dan Praktek Anti-Dumping di Indonesia (2018);
11. Naskah Kebijakan: Hubungan Sipil Militer Pasca Orde Baru dan Orde Reformasi (2019)
12. Relasi Sipil – Militer di Indonesia (2019).
(Agus Brotosusilo not only a Reviewer for Scopus’ Indexed International Journal (Q1+Q2), but he
has been also published his research in several Scopus’ Indexed International Journal
(Q1+Q2); some of his publications can be traced in Google Scholar Citation by search to Agus
Brotosusilo in Google.). Agus Brotosusilo, 1994. 173
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The Role of Nusantara'S (Indonesian) IN: Legal Thoughts & Practices Globalization of Law

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THE ROLE OF NUSANTARA’S

Agus Brotosusilo, 1983. 3

• “Mare Clausum” (Closed Sea):

• “Mare Liberum” (Free Sea):

certainty LEGAL equity

pacta sunt servanda LEGAL INTERNAL

western LEGAL INTERNAL

land sales in LEGAL EXTERNAL

THE EXISTENCE OF LAW; AND

(Agus Brotosusilo, et.al.,: Penulisan

FREEDOM OF NAVIGATION  CLOSED SEA-LANE

FREEDOM OF TRADE  ORDER OF EXCHANGE

FREE COMPETITION  FAIR COMPLEMENTATION

Agus Brotosusilo, 1983. 11

Agus Brotosusilo, 1983. 17

• Globalization of law refer to the

degree to which the whole world

II. Problems Statement

AGUS BROTOSUSILO, 2010. 19

1. What are the destructive impacts of FOREIGN values on

1. What is ought to be THE PRESCRIPTIVE SOLUTION to

III. Theory and Methodology

AGUS BROTOSUSILO, 2010. 21

III.a. “DEVELOPMENT OF LAW IN SOCIETY”

1.ADAM SMITH’S “LECTURES ON JURISPRUDENCE”.

Agus Brotosusilo, 1983. 22

III.b. THEORETICAL BASE

Agus Brotosusilo, 1983. 23

Agus Brotosusilo, 2018. 24

Agus Brotosusilo, 2018. 25

III.c. The Impact of Nusantara’s/Indonesian

Agus Brotosusilo, 1983. 26

The role of Nusantara’s/Indonesian Adat Law

The Impact of Nusantara’s/Indonesian

SILK ROAD (Land Route )

One Belt One Road (OBOR)

Agus Brotosusilo, 1983. 29

NUSANTARA’S LEGAL CULTURE

NUSANTARA’S LEGAL VALUES

LANGUAGE PANCASILA’S VALUES

NUSANTARA’S ADAT LAW & PRACTICES

MODERN NATIONAL & INTERNATIONAL LAW

UNITY IN DIVERSITY LEGAL

ADAT LAW LEGAL ACTS

HUGO GROTIUS: “MARE LIBERUM” (THE ORIGIN OF MODERN INTERNATIONAL LAW).

Suzanne A. Brenner research (Suzanne April

Wealth and Modernity in Java. Princeton University

SCIENTIFIC METHOD OF THE ISOLATION OF ECCLESIASTICAL

• Simplicity in life-style - Asceticism.

God punishment for initial human

Success as a sign of forgiveness

“salvation depended on the individual free choice

• Socianism/Ramism:  rationalism mode of

• Protestant Work Ethics:  materialism value

• The legal culture is more appreciates

• It is more attaches to romanticism than

Communalism value > Individualism value

Romanticism value > Rationalism value

WESTERN LAW (CIVIL LAW + COMMON LAW):