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. 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 the 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
III. Conclusion.
 .

I. Background

Agus Brotosusilo, 1983. 3

PARADOXICAL-IRONY
IN THE INDONESIAN
• Hugo GrotiusLEGAL EDUCATION
acknowledged (1)
the Significant Role of 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 wasAgustheBrotosusilo,
Professor 1983. whose course I was taking
4
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:
Agus Brotosusilo, 1983. 5
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.
Agus Brotosusilo, 1983. 6
 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 Adat1982.
Agus Brotosusilo, Laws in the country which
7
 TO LEGAL STUDY IN
INDONESIA NECESSARY? TO UNDERSTAND
INDONESIAN
• The existence of Adat Law inLAW 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 systems: as "PRECEDENT
= LEGAL PRINCIPLES"; and the form of the existence of
law in THE CIVIL LAW countries legal system 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.
Agus Brotosusilo, 1982. 8
 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

Adat Law ACTS PERSPECTIVE

THE EXISTENCE OF LAW;

&
ITS SCIENTIFIC-METHOD’S PERSPECTIVES
Agus Brotosusilo, 2017. 9
 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

Agus Brotosusilo, 1983. 10

 .

GLOBALIZATION

Agus Brotosusilo, 1983. 11

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.
Agus Brotosusilo, 1983. 12
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.).
Agus Brotosusilo, 1983. 13
 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.
Agus Brotosusilo, 1983. 14
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.
Agus Brotosusilo, 1983. 15
 Albrow, Martin and 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."

Agus Brotosusilo, 1983. 16

 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.
Agus Brotosusilo, 2011.
17
17
 .

GLOBALIZATION OF LAW:
THE FIRST WAVE

The role of Indonesian Adat Law

on the origin, formation,
and establishment of
modern international law
Agus Brotosusilo, 1983. 18
 .

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)

Agus Brotosusilo, 1983. 19
 SILK ROAD (Land Route )
Vs.
SPICES SEA LANE (Maritime Passage)

Agus Brotosusilo, 1983. 20

 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.)
Agus Brotosusilo, 1983. 21
 THE COLLAPSE OF THE SPICES SEA
LANE + THE SILK-ROAD
• In the middle IN THE
ages, the CRUSADES
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
Agus Brotosusilo, 1983. 22
the principle of "Mare Clausum".
From Adat Law
to Modern International Law
• In the middle ages, Dutch Traders 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 Adat Law into “mare liberum/freedom of
the seas” legal doctrine on his treaties
“MARE LIBERUM” (1608), elevated his name as
Agus Brotosusilo, 1983. 23
“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.
Agus Brotosusilo, 1983. 24
 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

Agus Brotosusilo, 1983. 25
 “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 ON 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” 26
“PRODUCTION SHARING CONTRACT” IN PRIVATE INTERNATIONAL LAW
Value System in Adat/Customary Law
• A research by Soepomo (the drafter of
Indonesian Constitution of 1945) validated
that the harmony among the Indonesian
customary 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.
Agus Brotosusilo, 1983. 27
 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
Agus Brotosusilo, 1983.
values​​. 28
AGUS BROTOSUSILO, 2010. 28
.
.
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 29
 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.
Agus Brotosusilo, 1983. 30
 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.
Agus Brotosusilo, 1983. 31
Agus Brotosusilo, 1983. 31
 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.
Agus Brotosusilo, 1983. 32
 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.
Agus Brotosusilo, 1983. 33
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 Brotosusilo, 1983. 34
Agus
Agus Brotosusilo,
Brotosusilo, 1983.
1983. 34
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.
Agus Brotosusilo, 1983. 35
The merit of Adat law over
Western law
Adat law does not recognize the
legal incapacity of a 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.
Agus Brotosusilo, 1983. 36
 WESTERN LAW:
FREEDOM OF SEAS/NAVIGATION
LEGAL REGIME, FREE
TRADE & FAIR COMPETITION
In the middle ages, Dutch Traders unable to
navigate in thePRACTICES
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
navigate and conducted a fast free trade & fair
competition with Chinese, Indian, Arabs,
British, French, Spanish, Portuguese and
other foreign traders.
Agus Brotosusilo, 1983. 37
 NUSANTARA’S GENUINE LEGAL
PRACTICE,
• DOCTRINE,
Genuine practices AND INSTITUTION
of FREE 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 in the beginning of seventeenth century.
• Free trade and Freedom of seas/navigation as
daily practice in the country are 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
Agus Brotosusilo, 1983. 38
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.
Agus Brotosusilo, 1983. 39
NUSANTARA/INDONESIA RESOURCES
IN INTERNATIONAL ECONOMICS
DEVELOPMENT:
The Treaty ofBREDA
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 favour 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 Colonies of
New York, New Jersey, Pennsylvania, and Delaware.
Agus Brotosusilo, 1983. 40
.
.
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 41
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.”
Agus Brotosusilo, 1983. 42
 “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 
Agus Brotosusilo, 1983. 43
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. 44
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.)
Agus Brotosusilo, 1983. 45
 “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

Agus Brotosusilo, 1983.
Agus Brotosusilo, 2011. 46
46
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.
Agus Brotosusilo, 1983. 47
 .

CONCLUSION

Agus Brotosusilo, 1983. 48

 ADAT LAW ON FREE TRADE, FREEDOM OF
SEAS/NAVIGATION, AND FAIR COMPETITION
• The establishmentSINCE 2000 BC.
of modern international law has
been indebted to the Nusantara’s/Indonesian Legal
Thought & Practices (e.g. 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 free trade, freedom of
navigation/high seas, 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. 49
 THE COLLAPSE OF THE SPICES SEA
LANE + THE SILK-ROAD
• In the middle IN THE
ages, the CRUSADES
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
Agus Brotosusilo, 1983. 50
the principle of "Mare Clausum".
THE MERIT OF ADAT LAW
OVER WESTERN LAW
When Dutch Traders 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. 51
ONLY PRACTICES OF ADAT LAW WERE ABLE
TO OVERTHROW THE PRINCIPLE OF THE
"MARE CLAUSUM" 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 overthrow the "Mare Clausum".
• Eventually, Grotius found that only freedom of
the sea, free trade and fair competition
practices based on Adat Law apply by
Nusantara communities (He refers to the
community as "East Indian", consist of Javanese,
Makassar-Bugis, Mollucas, etc.) were ABLE to
Agus Brotosusilo, 1983. 52
DEFEAT the principle of the "Mare Clausum".
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 theAgus Nusantara’s
Brotosusilo, 1983. archipelago. 53
 .

GLOBALIZATION OF LAW:
THE SECOND WAVE

The Agrarische Wet (Agrarian Law), 1870

a red carpet to invite
the incoming foreign’s origin private
capitalists
Agus Brotosusilo, 1983. 54
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. 55
 EIGENDOMSRECHT
The Agrarische Wet (Agrarian Law)
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. 56
 .

GLOBALIZATION OF LAW:
THE THIRD WAVE
The Non-violence South China Sea
Conflict Resolution Style:
Republic of Indonesia
vs.
People Republic of China
Agus Brotosusilo
Faculty of LawAgus–Brotosusilo,
Universitas 1983.
Indonesia 57
 THE CHINESSE NINE DOTTED LINES_MAP

• .

Agus Brotosusilo, 1983. 58

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.
Agus Brotosusilo, 1983. 59
 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.

Agus Brotosusilo, 1983. 60

 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 AgusJames Shoal was indicated 61as
Brotosusilo, 1983.
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
Agus Brotosusilo, 1983. 62
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. 63
RI-PRC: CONFLICTED-ISSUES
ON SOVEREIGNTY
RIGHTS, NOT ON SOVEREIGNTY
• The International (Gentlement) Agreement to delete
the two-dotted line in the Natuna Islands
based on Mutual Respect and Trust  the
Principle of Reciprocal.
• In the Natuna Islands area between RI-PRC there has
been no more conflicted-issues on
SOVEREIGNTY; yet there has been conflicted-
issues on SOVEREIGN RIGHTS. Since RI and
PRC both are the member of the UNCLOS
1982, the problem can be settled by its law of the
sea rule.
Agus Brotosusilo, 1983. 64
 .

GLOBALIZATION OF LAW:
THE FOURTH WAVE

Indonesian “POLITICAL DOCTRINE:

WAWASAN NUSANTARA/ARCHIPELAGIC OUTLOOK
 Archipelagic State Principle in UNCLOS-1982
Agus Brotosusilo, 1983. 65
POLITICAL DOCTRINE AND LEGAL PRINCIPLES
ON INDONESIA’S TERRITORY
TZMKO 1939:
(Inspired by the principle of "MARE LIBERUM / FREEDOM OF
THE SEAS" Hugo Grotius, the founding father of international law)
Territorial Sea is only 3 miles, outside of each Indonesian islands;
Region and the Indonesian islands are separated by seas.

“POLITICAL DOCTRINE:
WAWASAN NUSANTARA/ARCHIPELAGIC OUTLOOK 
Djuanda Declaration (December 13, 1957)
(replacement of TZMKO 1939):
12 miles territorial sea from Archipelagic baselines (straight
baselines from the outermost point of the outermost islands);
All islands of
Indonesia are connected by sea.

Agus Brotosusilo, 1983. 66

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
rezim:
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); Agus Brotosusilo, 1983. 67
Oceanic Law of 2014.
Indonesian Territory: TZMKO 1939
( August 17, 1945 – December 13, 1957)

BRUNAI

Agus Brotosusilo, 1983. 68

Indonesian Territory:
Djuanda Declaration, 1957

Agus Brotosusilo, 1983. 69

 UNCLOS 1982:
INDONESIAN ARCHIPELAGIC BASELINES

Agus Brotosusilo, 1983. 70

 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
Agus Brotosusilo, 1983. 71
 SOVEREIGNTY
&
SOVEREIGN RIGHTS
in the sea.

24 Nm 200 Nm

Agus Brotosusilo, 1983. 72

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.
Agus Brotosusilo, 1983. 73
 .

Agus Brotosusilo, 1983. 74

 GLOBALIZATION OF LAW:
.

THE FIFTH WAVE

Javanese Adat law

as a source of International law

(Agus Brotosusilo: Kompas Daily, Oct. 1980)

(Kirsten Bindemann, Production-Sharing
Agreements: An Economic Analysis, Oxford:
Oxford Institute for Energy, October 1999, p. 10 ).
Agus Brotosusilo, 1983. 75
 JAVANESE ADAT LAW AS A SOURCE
OF INTERNATIONAL LAW (1)
• 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. 76
 JAVANESE ADAT LAW AS A SOURCE
OF MODERN INTERNATIONAL
LAW (2)
Production-Sharing Contract/PSC
is a legal principle derives from
Javanese 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.
Agus Brotosusilo, 1983. 77
 “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.
Agus Brotosusilo, 78
 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
Agus Brotosusilo, 1983. 79
about 80% for the government, 20% for the company.
 .

GLOBALIZATION OF LAW:
THE SIXTH WAVE

The Indonesian Investment Law:

a red carpet to invite
the incoming foreign capitalists

Agus Brotosusilo, 1983. 80

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 Indonesian fertile land, abundant
of natural resources and cheap labor.
Agus Brotosusilo, 1983. 81
SOEHARTO’S NEW ORDER REGIME
UNCONSTITUTIONAL 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.
Agus Brotosusilo, 1983. 82
 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 Indonesian fertile land, abundant of natural
resources and cheap labor.
• The Indonesian Omnibus Law No.11, 2020 on Job
Creation is an invitation to the incoming ALL foreign
Agus Brotosusilo, 1983. 83
capitalists 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. Accordingly, it
will 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.
Agus Brotosusilo, 1983. 84
 RCEP AGREEMENT, Chapter 10:
Investment
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. This
Chapter includes a most-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 may
arise. The RCEP Agreement also includes a built-in work
programme on investor-stateAgusdispute
Brotosusilo, 1983.
settlement provisions. 85
 GLOBALIZATION OF LAW:
.

THE SEVENTH WAVE

The origin of WTO:

How to prevent 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) 86
 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.
Agus Brotosusilo, 1983. 87
.
.
GLOBALIZATION:
GLOBALIZATION:.
(LIBERALIZATION
(LIBERALIZATION && PROTECTION)
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/ MPO RT
PO R IMPLICATIONS 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.

Agus Brotosusilo, 2013
1983. 88
.
.

Agus
Agus Brotosusilo,
Brotosusilo, 1983.
2005 89
89
.
.

Agus
Agus Brotosusilo,
Brotosusilo, 1983.
2005 90
 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
Agus Brotosusilo, 1983. 91
and quantitative restrictions on exports and imports.
 .

• .

Agus
Agus Brotosusilo,
Agus Brotosusilo, 2005
Brotosusilo, 2011.
1983.
2007 92
92
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, 1983. 93
 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. 94
 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).
Agus Brotosusilo, 1983. 95
 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.
Agus Brotosusilo, 1983. 96
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 international Agus
law”.
Brotosusilo, 1983. 97
 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.
Agus Brotosusilo, 1983.
98
 .

IS THERE
ANY FREE TRADE
IN THE WTO ?

Agus Brotosusilo, 1983. 99

 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'.
Agus Brotosusilo, 1983. 100
 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. 101
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:
Agus Brotosusilo, 1983. 102
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
Agus Brotosusilo, 1983. 103
Agreement on Agriculture/AoA .
“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”.
Agus Brotosusilo, 1983. 104
 “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.
Agus Brotosusilo, 1983. 105
 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. 106
 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.
Agus Brotosusilo, 1983. 107
“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
Agus Brotosusilo, 1983. 108
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. Agus Brotosusilo, 1983. 109
 “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.
Agus Brotosusilo, 1983. 110
 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 111
 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.
•
Agus Brotosusilo, 1983. 112
 .

THE ECONOMIC IMPACTS OF THE WTO LAW:

INDONESIAN PERSPECTIVE

Agus Brotosusilo, 1983. 113

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

Adhidharma Brotosusilo, 2012 114

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 115
0.1
Adhidharma 0.1
Brotosusilo, 2012 0.1 115
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 116
Agus
Agus Brotosusilo,
Brotosusilo, 1983. 116
116
116
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
117

Source:WEO, March 2008 Agus Brotosusilo, 1983. 117

 .

DOES THE REPUBLIC OF INDONESIA IS

A BENEFICIARY OR A LOOSER
IN THE WTO?

Agus Brotosusilo, 1983. 118

 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
Agus Brotosusilo, 1983. 119
Agus Brotosusilo, 1985 119
 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. 120
120
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,
Brotosusilo, 19852012
1983. 121
121
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,
Brotosusilo, 19852012
1983. 122
122
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 123
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).
Agus Brotosusilo, 1983.
Agus Brotosusilo, 1985
124
124
 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% Agus

Agus Brotosusilo,
71,25% Brotosusilo, 1983.
1985
21,73% 2,83% 1,41% 125
100%
 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
Agus Brotosusilo, 1983. 126
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.
Agus Brotosusilo, 1983. 127
 .

GLOBALIZATION OF LAW:
THE EIGHT WAVE

Legal Transplantation:
the liberal-capitalistic ideology
has been infiltrated
the Indonesian constitution.
Agus Brotosusilo, 1983. 128
 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.
Agus Brotosusilo, 1983. 129
 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.
Agus Brotosusilo, 2011.
130
130
 MOST OF INDONESIAN LAWS THAT 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. 131
 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. 132
 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. 133
Agus Brotosusilo, 2013 133
Indonesia:
Gini index a rise in income
inequality; while experiencing
.

• An analysiseconomic
• .
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
Agus Brotosusilo, 1983. 134
percent in 2011. AGUS BROTOSUSILO, 2010. 134
.
• 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. 135
 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.

•
Agus Brotosusilo, 1983. 136
AGUS BROTOSUSILO, 2010. 136
 .

CONCLUSION

Agus Brotosusilo, 1983. 137

 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, 1983. 138
 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.
Agus Brotosusilo, 1983. 139
A DISCRIMINATIVE LIBERAL FREE MARKET IDEOLOGY
IN THE LAW NUMBER 7 OF 2014 ON TRADE LAW

• The Draft of Indonesian Trade Law of 1996

(Agus Brotosusilo, et., al.) consists of a provision
that as a consequence of “Wawasan
Nusantara/Archipelagic Outlook” political
doctrine, Republic of Indonesia should be
treated as “a unitary/single market”  the
price of the Basic Needs in the entirely 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
Agus Brotosusilo, 1983. 140
the Law Number 7 of 2014 on Trade Law.
 An anomie in trade law
• The controversy in Indonesia’s trade law
resulted in an anomie situation: there is a
confusion among Indonesia people
whether they should be behaved base on
a populist economic system, or in
contrary based on a liberal economic
system.
• This anomie situation led to a
legal-uncertainty condition.
Agus Brotosusilo, 1983. 141
 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 Demonstration during the New Order Authoritarian Government,
1979-1980 (Demonstrators departed from the front of the AB room at the UI Student
Dormitory – Jl. Pegangsaan Timur No. 17).
• He was not only an off-counsel for "Ali Budiardjo‑Nugroho‑Reksodiputro/ABNR - Legal
Counsellor“, but also 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, 1994. 142
 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 Inter-
Regional and Intra-Regional 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), Competition 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 Conflict (2015 - 2018)"; and "TNI-POLRI Cooperation (2013 -
2014)“.
• 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. 143
 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 (Q2), but he has been also
published his research in several Scopus’ Indexed International Journal; some of his publications can
be traced in Google Scholar Citation by search to Agus Brotosusilo in Google.).
Agus Brotosusilo, 1994. 144
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