The work on sea nomads, and with sea nomads communities: a collaboration in Sea Nomads Contact Group
A. Initiative for recognition
The initiative of recognition is a work dedicated by a group of academia, researchers, and jurists for recognition of rights of Sea Nomads in different sea-ecosystems in the world into legal and policy framework, and into shared knowledge management. The group develop a series of researchs (big and small), collaborations, platform development, capacity buildings, government relations, and legal advocacy in the subject of sea nomads of Southeast Asia.
First and foremost, it is in the foundation of the initiative to be with sea noamds communities in Southeast Asia, and to be the collaborator of the communities in pursuing the recognition.
The recognition is developed with and through the mutual understanding of both government/legal regime with Sea Nomads communities, and vice versa; and various communities with sea nomads, and vice versa. The recognition is based on understanding towards the right to life of sea nomads community in different countries and administrative areas.
As a process in international level, the recognition is developed with and through international law and mechanism, and yet further interpreting and developing standard out of UNDRIP (United Nations Declaration on the Rights of Indigenous Peoples), UNDROP (United Nations Declaration on Rights of Peasants and Other People Working in Rural Areas), and other special procedure of the UN Human Rights Council for constitutive recognition. Further, the group seeks to collaborate with governements, both in national/central level and in decentralised and village level, to develop a framework of recognition in the respective level. The recognition also seeks a adoption of mechanism in different jurisdictions and institutions of law necessary to guarantee to right to life of sea nomads community.
As a process of knowledge management, the group develop communications and collaboration, as shared work with sea nomads, with various researchers, academia, and jurists. Researchs, shared storage of academic works, comparative studies, annotations are contributed to the work of knowledge management.
B. Sea nomads
The term sea nomads is used to refer to the sea nomads of Southeast Asia; Indigenous ethnic groups that are closely connected to their coastal environments and marine resources in the region that encompasses modern-day Malaysia, the Philippines and Indonesia. They called themselves: Bajau, Bajo, Sama Bajau, “suku laut”, Moken, “orang laut”, urak lawoi. (There are other pejorative or demeaning call towards them, such as “manusia perahu” (boat people) which we do not agree on them, and do not use it in our research.) Today’s sea nomads population is estimated to be around 1.1 million.[1] Although they are dispersed across the Southeast Asian region, sea nomads in this region share ‘similar social and cultural features, including shared shipbuilding and fishing culture, traditions, myths,’ and oral traditions.[2] Their livelihoods are primarily based on small-scale fishing activities, but can extend to coconut palm cultivation and marine trade of various natural resources including cucumbers and sea mammals.[3] The Suku Laut are highly adaptable peoples as their nomadic lifestyle has facilitated their past migrations to different areas ‘due to droughts, rising tides, floods, pestilence, and political strife,’[4] which also historically allowed them to establish trade relations with diverse communities from East Africa and Indo-Pacific region.[5]
Sea nomads’ traditional knowledge has allowed them to develop their distinct practices of ‘weather forecasting, traditional fishing method, traditional medicine, disaster preparedness, cultural astronomy, aquaculture, mangrove conservation and coral reef conservation’,[6] which are linked to their spiritual belief system. Environmental knowledge in the community is vast and they are known to have advanced understandings of ‘ocean currents and tides, winds, fishing grounds, the position of the sun, moon, and stars…freshwater sources…and numerous species of flora and fauna of sea and coast, including edible species and species for medical use.’[7] Sea nomads communities and their respective practices have existed for many hundreds of years, in part because of their ability to adapt to environmental changes and utilise their local knowledge.
Sea nomads is known by Indonesian and by scholars around the world as nomadic and semi-nomadic communities living in Southeast Asia waters. The sea nomads communities living in semi-nomadic way in a very expansive maritime ecosystem. Living their life, they develop their traditional knowledge, code of leadership, navigation analysis and skill, and a projection of worldview towards the archipelago. Their way of life is so different with a legal system developed by “normal” nation-state. They are in constant moving, though not in a short period time. This makes them regarded as cannot fit into a system of “indentification card” or “population management” (in Indonesian legal system: “adminduk”).
About the initiative
The work on international law and collaboration with researchers bring the attention towards sea nomads. The work has been in Apintlaw’s process since 2020. The work also with collaboration with Dr. Dedi Adhuri (of Indonesian Research and Innovation Agency) and with Dr. Wengki Ariando (of SRI/Social Research Institute, Chulalongkorn University) This is as Sea Nomads Contact Group (SNCG).
The work of Apintlaw is concentrated in developing framework for international law for recognition towards sea nomads. Apintlaw works on translating and intrapolating international law towards the recognition. The work is also alloted towards Indonesian constitutional law. This is bring certain ruling of the Indonesian Constitutional Court into a process for recognition towards the Indonesian sea nomads.
[1] Kazufumi Nagastu, ‘A Preliminary Spatial Data on the Distribution of the Sama-Bajau Population in Insular Southeast Asia’ (2010) 13 Hakusan jinruigaku 53, 53.
[2] Pradiptajati Kusuma et al, ‘The last sea nomads of the Indonesian archipelago: genomic origins and dispersal’ (2017) 25 European Journal of Human Genetics 1004, 1004.
[4] Wengki Ariando, and Sangchan Limjirakan, ‘Traditional Ecological Knowledge of Indonesian Sea Nomads “Orang Suku Laut” on Climate Change Adaptation’ (Conference Paper, Proceeding on the 5th EnvironmentAsia International Conference, 13-15 June 2019) 33.
Apintlaw is humbled by work was done by rural communities of Colombia who dare to bring the UNDROP into constitutional reform via parliament of Colombia. The work achieved a very important step, and another steps are waiting. We are contributing with what we are already working on: bringing UNDROP to different legal jurisdiction, and, making it into a meaningful reform. Colombia has a very important exemplary role.
Our contribution to the work, as we are among many:
the follow up on UNDROP: submission on the CESCR general comment on right to land, normative elements on the agriculture workers, normative elements on maritime indigenous communities
the follow up on the assessment on counter interpretation against RCEP on the subject IP
constitutional law: Indonesian constitutional frame on citizenship as projected by the framer
Law
in Contemporary Society
A. General Background
Contemporary society (or polity) has
their own way to institute a set of norm and administrative process to
constitute their core values, to delineate the power that they envision, and to
create rules and regulation which would mutually reinforce goodwill among
member of society. This is the case where international law recognises state as
the high contracting party of the international law. Contemporary society
exercises their
existence and their institution
through state. While it is understood that state should have limitation to
embody the life of their member (:society), state still incorporates the
socio-historical construct and the establishment of law.
There is a good point on explaining
the contemporary society in the set of state, and how this will be incorporated
in international law. As per international law, the institution is on
recognition. Recognition subscribes “making visible and formal” of a particular
matter or party. Those would covers foundation of law in domestic level, how sovereignty
is embodied further into government, the set of institution to promote and
protect integrity of governance, and, the realisation of welfare onto society.
In domestic level, contemporary
society has their own socio-cultural basis and deontological foundation which
morph into law. This law is, in most cases, codified into positive law. (In
other case, the law is referred to different source of dispute settlement). The
formulation will reflect those socio-cultural basis and deontological foundation.
In the conduct of law, state would
subscribe to the foundation of reciprocity. The term “intergovernmental” or
“international” would envision on how state will develop law in the context of
inter-state (inter-sovereign) and inter-member of international community.
Reciprocity would incorporate the deontological foundation of this relation,
while setting the standard (“prospective and progressive standard”). This will
involve the development of norm and mechanism on how international community
should live. This may sound unlikely since state, by definition, is domestic.
In any case, state should develop norm and mechanism since the relation between
societies is embodied by relation between states. In a globalised space, this
is much the case.
There is also a question how far and
how much one particular world event would justify the process of formalising
norm in international setting. The case of food crisis 20072008 prompts the
debate whether state is still relevant in governing international affairs. The
debate asked meaningful change. Ultimately, this will refine the scope and
reciprocity in international affairs, and meaningful performance of domestic
obligation of state.
B. Key question
1. How state will develop law as
society (which are their member) grows
2. How to interpret international norm
into domestic law
3. How key institutions of state will
be meaningful in citizens’ life
4. How reciprocity would set the
standard in international law, including in human rights
5. How law will deal with corruption
as subject of law and as subject of sociocultural phenomenon
C. Thematics
1. constitution
as positive law
The recognition of a state is
enshrined into constitution, as history would suggest. The constitution will
bring most unwritten aspects of society into writing. Constitution would set an
ethical (deontological) foundation, as to what they merit existence. On the
other hand, the life society expresses so many matters which may and may not be
pronounced by constitution. How society would interpret those matters in the
vantage point of constitution; how constitution would promote the good (and
public goods) in society
2.
constitutional law as public law: case of Indonesia
Indonesia has different generation of
constitutions, as those much link with the context of “making of Indonesia”
both in the postcolonial context and in the development of citizenship. Those
constitutions mount to the preoccupation on how to justify authority, and how
to envision a process of welfare creation. How public law will be interpreted
from the constitution? How to adjudicate government and citizens affairs? How
the tension between centralisation and decentralisation will shape the public
law? (small plus: how maritime governance contribute to public law –as
Indonesia is an archipelagic state)
3.
corruption as the preoccupation in public law
The corruption would explain the
abusive nexus between function of authority and vested interest. The public law
should bring the development of norm to purview this nexus, and how public law
will employ a set of enforcement based on penal frame. In most cases, the
corruption will decrease the confidence of society on how state conduct state
affairs. This is where public law will deal with the socio-cultural context of society.
The provision of public law will create “stick and carrot” for government and
for citizen to develop good corporate governance.
The session will define several
components of public law on this, including fraud, regulatory arbitrage, and
illicit financial transaction
4.
reciprocity in international law
Society runs their business in the
boundary of domestic law. In any event, they relate with other societies
outside this boundary –implicitly or explicitly. The will assume some basic
condition which have to apply to them as to their counterpart, at the very same
time. This explains the key component in Vienna Convention on Law on Treaties
1969.
While they conduct their affairs on
state-to-state basis, society also develop institution as international entity.
This entity will govern certain affairs in international and transnational
setting. This entity will incorporate the affairs of individual state in
international level, and will develop international norm that relevant members
should subscribe to.
Case point: ILO (International Labour
Organisation), European Union, Basel II/III (Bank for International Settlement
(BIS), Group of 20 (G20), Case for or against ISDS,
5.
the foundation of human rights
The human rights foundation is usually
enshrined in the constitution as founding principle of the state. The name
might be different in terminology and/or span, but the very values express the
respect to dignity of human life. This is where one usually defines human
rights as endogenous process. The provision coming from this foundation will
covers, among other, the basic services, the necessary scaling up of standard
of living, opportunity in economic pursuit, access to justice
In international law, the foundation
of human rights began with universal call to end and outlaw slavery –then,
followed by the founding of International Labour Organisation. International
affairs enter into what member states define as reciprocity in defining slavery
as “enemy of humanity” (hostis humani generis).
The development of UN organs,
ultimately UN Human Rights Council, brings the development of standard setting
on human rights. This is understood as a process of instituting state
obligation and formulation of rights holder as progressive realisation.
5.
case discussion, the process of UN Draft Declaration on Rights of Peasantsand
Other People Working in Rural Areas
The process of UN Draft Declaration
brings a special dimension where long-standing problem in food system is
addressed. Most importantly the food crisis 2007-2008 brings a reassessment to
what state obligation should define to. The study of sociology and economic
development help in the discussion on how the rural population is
“discriminated against” –this may entail prejudice, assessment on what economic
activity would means, the role of information and capability in the development
of rights.
6.
international law governing business and human rights
The conduct of corporations has long
standing reach on international layers. This might bring the debate on what
entity of business should be recognised –and how they will operate within
domestic level, and in international level.
In most cases, this case represent
“normative gap”, where there is less of norms on governing state obligation
towards business. This is the case where international public law should be
developed, as to develop normative setting on this subject. The legal reasoning
will bring the meaning of “public” in international law.
7.
case discussion, the adjudication of Constitutional Court: Indonesia case
The role of Indonesian Constitutional
Court has particular role in developing a frame on human rights. The court
define the “constitutional complaints” and discuss the breadth of un-enumerated
state obligation and rights of citizens.
Case in discussion: on electricity, on
oil and gas, on election, on civil rights towards kid outside marriage, on
forestry, on coastal area and small islands, on peasants, on seed
8.
case discussion, legal reasoning in public law, human rights, anticorruption
The discussion will touch upon the
legal reasoning: in its source of law, in the legality, in the plausibility of
the case, on developing norm.
D. Mix-and-match
Intention:
To refresh the work on legal reform,
into the development of norm and practice of human rights and constitutionalism
To relate with public interest
advocacy
To develop body of knowledge and body
of law on human rights
To familiarise with interlinkage of
domestic and international application of human rigths
To strengthen Indonesian
constitutional basis for human rights promotion and protection
Bakcground of problematicals:
1. The institutional setting of
Indonesian Democracy, and the context of legal reform in Indonesia relates to
how Indonesian society could participate both dynamics. The more society is
sidelined (by elites), the more democracy and legal reform have a problem of
‘glut’ –problem where there are many legislation passed and hundreds of
directives are adopted, law faculties are oversubscribed, but corruption is
rampat and governance is only artificially performed.
2. The domestic law and international
law are both interrelated by Indonesia, but only just. On law where important
extraterritorial obligation should be performed, state party did not have
capacity to perform while non-state actors easily tweak deemed protection for
citizens especially the weak and the disadvantages.
3. Judiciary and jurists are have real
power to shape law enforcement to the point where non-discrimination, equality
before the law, and equal protection of law are fairly alive. This will need a
realignment with good practices in the past of Indonesian framers (‘framers
text’) and of Indonesian judicary, a learning of key norm in protection of
rights, key technical capacities on administrative law,
and sensitisation on persisting and
emerging problems of life.
Mix-Match:
International
Criminal law Nulla crimen
sine lege, a crime should be defined and pronounced by law.
How we apply international norm and law to work on crime. What if the crime
did not nationally stated by national law. How we look into the impact and
damage of the crime, and use it for prosecution or protection?
Criminal law in practiceAnti-corruption Anti-money laundering Anti-trust harm, hazard, battery, injuries
International
protection law
Ius
cogens, or fundamental principle and internationally accepted norm put human
life as paramount subject of protection in international law. The practice
develop different ways on exercising those protection
Consumer protection Housing international law Tort & reparation Public interest litigation Refugee and migrant workers
Trade and
development
Freedom
of movement of persons, goods and services create their own benefit and problems,
including in transnational trade. On certain extent, every positive form of
those freedoms are developed into what is internationally accepted practise
of Development.
United Nations Conference on Trade
and Development (UNCTAD) Regional cooperation: regional
investment cooperation (RIC), monetary union, custom unionIndustry & finance: sectors,
growth and risk management
States, land
and territories
A
state is the subject in international law. State, among other, is defined by
a contemporary recognised land and/or
territory. International law emerges as a guarantee for those
definition, but also creates post-nation state engagement.
Forms of sovereignty Maritime law Dispute on economic resources and
territory Environment protection
International
law and institutions
A
body of law evolve with institutions of its life. These give law a more
persuasive and coercive role in inter-state engagements, including on creating framework to solve
problems.
Principle of reciprocity, exchanges,
and cooperation Human rights law Conflict transformation and peace
building Sustainable development Treaties and how to use Extraterritorial obligation: state
and non-state International dispute settlement
Modern
constitutionalism
A
constitution is both the principle of ethics and organisation of a nation. In
modern setting, both post-colonial and globalisation creates a more
emphasises on how basic law should protect citizen and creates a constructive
condition for a life between nations.
African constitutions European constitutions American constitutions Asian constitutions
Indonesian
Constitutionalism
Development body of law and body of
knowledge on constitution-based on human rights protectioDevelopment of human rightsreasoning
in administrative law and public policy
Study on jurispdrunceStudy on administrative law Enumeration of rights
Comparative
government
A
representative government employ a legitimate corridor for a power to be
exercised. Thus a government will use certain task and practise to exercise
that power.
State budget and public services Tax Investment and financing Public private partnership Social security and protection
scheme Food and development
Legal
empowerment
Development
of best practices of advocacy and of
defence especially in the specific context of public interest
Development
of access to justice as ‘normal affairs’ for individuals and groups in
society
Comparative
public interest advocacy
Human Rights
Education
– Development of inter-universities (post)
graduate on human rights (on law, on public policy, on ‘rights protection
from below’)
and/or
– Case-studies of Indonesian cases (on
conflict transformation, on challenges related to civil and political rights,
on remedial measures, etc.)
