Indonesian Journal of International & Comparative Law

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Latest documents

• Notes on Contributors
• The Promise of the New Swiss Asylum Procedure Model: Current International Protection in (E.U.)rope

  Since its establishment, the Common European Asylum System tries to regulate asylum and related issues commonly within the E.U. territory. This paper focuses mainly on the current challenges as a result of misinterpretation of the international principles and norms in the E.U. law concerning the situations of the refugees from armed conflict regions. The methodology used here is the New Haven School which recognizes law as a continuing process of authoritative decision. The New Haven approach goes beyond the black letter of the law, the law in books. The New Haven School of Jurisprudence presents a constructive interdisciplinary approach to solving society’s problems on the international and domestic plane. The first part will focus on the problem where the root causes for Europe’s challenges in refugee law will be delimitated. The second part will give the stage for each claimant as a part of the "community" and define their values. The third part will exclusively focus on the past decisions, their conditioning factors, current law and decision trends within Europe and how the international as well as E.U. law is implicated domestically. The last two parts will focus on the appraisals, prediction of future trends, and they will further demonstrate how the Dublin Regulations transformed Europe’s migration challenge into a legal crisis for the Common European Asylum System and what the new Swiss Model promises instead.

• A Comparison between the European and the American Approaches to Privacy

  This paper compares the European and the American approach to privacy. The essay argues that the European approach to privacy is rights-based, whereas the American tactic is expectation-based. The article discusses the European Union General Data Protection Regulation, as well as the newly-adopted California Consumer Privacy Act. The paper contends that the latter is an American response to the former. The paper concludes that if individuals prefer strict protection of their privacy rights, then the General Data Protection Regulation is the appropriate model. Otherwise, a reasonable expectation of privacy is sufficient.

• The Trail Left Behind From The Nuclear Race: Radioactive Waste

  This article presents a discussion on the issue of the permanent disposal of radioactive waste. First, this article discusses the issues the United States has faced in terms of the Nuclear Waste Policy Act of 1982 and Yucca Mountain. Second, this article looks at the issue on a global scale. Lastly, this article addresses how a solution can be found through multinational cooperation with the assistance of the International Atomic Energy Agency. The article seeks to highlight the common issues that many countries face, and push toward a multinational solution. The mechanism by which this is accomplished starts with a focus on the United States, followed by connecting the issue beyond the United States’ borders.

• Unmasking A Corrosive Democracy: A View from the Pit
• Notes on Contributors
• The Model of Disability in Saudi Arabia

  The Convention on the Rights of Persons with Disabilities, an international treaty that addresses matters related to persons with disabilities, prohibits all forms of discrimination against persons with disabilities. Saudi Arabia signed the Convention in 2008, but has not yet ratified the Convention based on societal views of disability in Saudi Arabia. Specifically, Article 12 of the Convention raises concern for Saudi society as it advocates recognizing all persons with intellectual disabilities as full persons before the law, which is incompatible with the legal framework and social system in Saudi Arabia. However, disability can be viewed under different paradigms, called the models of disability. Over time, disability advocacy has called on people and society to change perceptions on disability using these different models of disability. Disability rights in Saudi Arabia are complex because how disability is viewed consists of a host of factors that shape societal views. Although different models of disability are examined in this article, the social model of disability provides the most nuanced framework to align societal views and legal reformation to improve the situation for people with disabilities in Saudi Arabia. After examining these models from a Saudi Arabian perspective, this article calls on Saudi Arabia to adopt the social model of disability in order to amend its laws and ratify the Convention.

• The Broken Rules of Armed Conflicts and the U.N.'Constrains in Syrian Conflict

  In recent times, Syria has come under intense public scrutiny. This is not unconnected with the wholesome atrocities committed against the civilian population and individuals who have become hors de combat in the ongoing Syrian war. Several cases of grave violations of international humanitarian law have been documented by the United Nations (U.N.) and several observer groups, the purport which leaves much to be seen as to the role of the international community to act decisively in stemming the ugly tides in the region. Yet, Syria is a signatory to many international legal instruments on armed conflicts. Against this backdrop, this paper analysed the broken rules of the Syrian armed conflict in juxtaposition with the U.N. Security Council’s constraints in resolving the Syrian conflicts. It found that a lot of rules have been broken in the methods of armed conflict in Syria. Yet, the U.N. Security Council is inhibited by legal constraints in the resolution of Syrian conflicts. The paper suggested, among others, that International Criminal Court should exercise its jurisdiction through referral mechanisms by the U.N. Security Council in order to make accountable the criminals of war in Syria.

• Religious Constitutionalism: An Interpretative Reading

  Is secularism dead? Many have argued that as a path secularism provides nothing but a dead end. Whether one likes it not, however, it is hard to rationally deny the desirability of having secularity as the ideal condition for national political contestation. From that vantage point, this paper argues that the alternative religious-friendly model that is based on pan-religious values has also failed miserably. In contravention of scholarly orthodoxy, the paper posits secularism is, in fact, the early Javanese nationalist’s endgame. In fact, secularity is implicit in the Javanese "political theory," and, thus, it is natural to assume that for the early nationalists, secularity was important for the national effort of "getting to Denmark." Unfortunately, Indonesia’s temporary accommodation of religion as a solution to the Islamists insistence has somewhat become fossilized in the political system. Furthermore, the Indonesian experiment with the moderate wall of separation has disturbingly encouraged more religious parochialism that is smuggled through the indigeneity-based claims. More importantly, it has set the political reform back.

• Stranger in a Strange Land: The Alien and the State

  The relationship of the stranger and the political community has traditionally been at the very core of various theoretical, historical and mythical accounts; in defining membership, in answering who is to be included, accepted and (thus) protected, in safeguarding a group’s position and its coherence. The essay argues that many of these accounts still prove to be of great value in a legal and a political perspective: None of the questions raised today when it comes to the phenomenon of migration and inclusion are particularly new; rather they have been addressed frequently over the last centuries. We would be well-advised to rely on a broader perspective, on the teachings of history, and the insights of political philosophy when facing the intellectual and political challenges of our time.

Featured documents

• Mapping Law & Development

  This paper presents an overview of the emergence and evolution of the concept and field of Law and Development. The concept of Law and Development covers a variety of aspects. These aspects acquire different meanings depending on different criteria and approaches. It depends on the geographical...

• A New Era for The United Nations: The Post-2015 Agenda and The Climate Change Agreement

  For the past 15 years, the United Nations has been setting the stage for this critical point, and now finally, the global stage has been set. The stars have aligned and this year brings us two key agendas to be adopted that will transform the future of international politics, and bring about a...

• Teaching Comparative Contract Law through the CISG

  The author submits that the 1980 United Nations Convention on the International Sale of Goods (the "CISG") serves as an effective tool to teach and learn comparative contract law. This work attempts to contribute to the scholarship and teaching of comparative contract law by unveiling the ...

• Your 'Liberation,' My Oppression: European Violation of Muslim Women's Human Rights

  The freedom of religion and the right to individual autonomy are cornerstones of any democratic society. However, many countries violate these values under the guise of human dignity, equal rights, and cultural integration. I argue that these violations began with the face-veil ban in France and...

• The Legal Status of the State of Israel: A Libertarian Approach
• The Promise of the New Swiss Asylum Procedure Model: Current International Protection in (E.U.)rope

  Since its establishment, the Common European Asylum System tries to regulate asylum and related issues commonly within the E.U. territory. This paper focuses mainly on the current challenges as a result of misinterpretation of the international principles and norms in the E.U. law concerning the...

• Islamic Hamas and Secular Fatah: How Does the Governing Process Work?

  The goal of the Palestinians in their conflict with Israel is to gain national self-determination through a two-state solution. To accomplish this goal it is necessary for the Palestinians to create a singularly viable governing system in order to negotiate with Israel as a "partner for peace&q...

• International Law and Ungoverned Space

  Ungoverned spaces, strictly defined as "spaces not effectively governed by the state" exist all over the world, presenting particular difficulties to public international law, which is historically premised on sovereignty and state control. Examples of such spaces include cyberspace,...

• The Broken Rules of Armed Conflicts and the U.N.'Constrains in Syrian Conflict

  In recent times, Syria has come under intense public scrutiny. This is not unconnected with the wholesome atrocities committed against the civilian population and individuals who have become hors de combat in the ongoing Syrian war. Several cases of grave violations of international humanitarian...

• Religious Constitutionalism: An Interpretative Reading

  Is secularism dead? Many have argued that as a path secularism provides nothing but a dead end. Whether one likes it not, however, it is hard to rationally deny the desirability of having secularity as the ideal condition for national political contestation. From that vantage point, this paper...