• Indonesian Journal of International & Comparative Law

The Institute for Migrant Rights
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  • Islamic Law and the Right to Armed Jihad

    This paper discusses the Jus ad Bellum, the right to go to war, in Islam. In Islam, there is a right to both defensive and offensive wars. Contrary to much of the western thoughts that presuppose that Islam does not place limitations on the conduct of war, however, Islamic law does establish its own version of the law of armed conflict that has come about due to an understanding that, because Islam sanctions both offensive and defensive wars, the Muslim community must know how to properly conduct themselves during an armed conflict. In this day and age, war is inevitable. It is a norm and not an exception. It is bound to occur, and, thus, it should not come as a surprise that the international community has come to an understanding that regulating the actions that occur during armed con...

  • U.S. Policy on Human Trafficking: A Partial Solution for a Perplexing Global Human Rights Problem

    The development of international law combatting human trafficking has been influenced- indeed, propelled- by the U.S. Department of State’s Trafficking in Persons (TIP) report. The TIP Report ranks countries of the world into three main tiered categories based on compliance with international human trafficking law. The U.S. imposes sanctions on countries failing to comply with certain defined "minimum standards." This article argues that the U.S. Trafficking Victims Protection Act (TVPA) and corresponding Trafficking in Persons (TIP) Report provide valuable tools for measuring and responding to the global human trafficking problem despite criticism for alleged asymmetry with the international definition of human trafficking. This article provides a novel empirical analysis of data colle...

  • State and Religion Continuum in Indonesia: The Trajectory of Religious Establishment and Religious Freedom in the Constitution

    For many post-colonial states, defining state identity is not a simple endeavor. In Muslim countries, secular nationalism, inherited principally from Western colonialism, has usually been in constant battle with theocratic-oriented political views derived from religious teachings. Moreover, in the case of Indonesia, the problem is not confined to the problem of how to liberate the newly independent state from the heritage of colonial philosophy but more on how to resolve the internal contest of values among themselves. Using historical approach, the paper tries to shed a new analytical light on the debate between Islamists and secularists in Indonesia seen particularly on the problem of defining the state and religion continuum and how it affects to the principles of religious establish...

  • Uncooperative Cooperative Federalism: What U.S. State Sovereignty Hawks Can Learn from E.U. Immigration Enforcement

    This article compares the U.S. and E.U.’s immigration enforcement regimes as a means of assessing the success of the commandeering doctrine. Under the commandeering doctrine, the federal government may not order around state or local officials, even in areas of exclusive federal jurisdiction. The doctrine is generally viewed as protecting state sovereignty at the expense of federal policy objectives. It has very recently become a hot topic in the context of immigration enforcement, though most academic research has studied it in other contexts. After considering the E.U.’s immigration enforcement regime -where member states are the main enforcers of union law- this article concludes that allowing states to take the lead in enforcement of U.S. immigration laws would not only be more effe...

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  • 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 expanded to other countries, including Belgium and Austria. Through surveys and personal experience, I maintain that these bans have a disproportionate impact on Muslim women who choose to cover their faces as a part of their religious beliefs and personal identity. This essay introduces the importance of the veil in Islam, discusses how the face-veil bans facially violate several Articles of the European Convention on Human Rights, the issues with the European Court of Human Rights’ reasoning f...

  • Eliminating the Power of the No-Confidence Vote from Wolesi Jirga (the House of People): How Comparison of Approaches in South Africa and the United States could Inform Changes to Afghanistan's Law on Removal of Government Officers

    Afghanistan has a presidential system of government, in which the President exercises his or her powers as head of the state over all three branches. Consistent with this structure, the Constitution grants the authority to the Lower House of the Afghan National Council (Parliament) to use no-confidence votes against key officials and ministers. This power of the no-confidence vote of the House of People create a political crisis for the executive branch, and it limits the government’s ability to address the country’s issues. This creates difficulties for key agencies of the government, the ministries, and their ability to properly apply their strategic plans. This paper argues that Afghanistan should consider adopting a new process after a hybrid of the approaches used in the U.S and So...

  • A New 'Extraordinary Circumstances' Standard for Suspension Clause As-Applied Challenges to the REAL ID ACT?

    Some persons facing deportation in the United States are successfully staying removal in extraordinary circumstances. Not all removal orders are immediately executed. In some situations a person may wait years or decades in the United States prior to deportation. During that time, changing conditions in a person’s country of origin may create a hostile"even deadly"environment. While those changed conditions may be grounds to cancel a removal order, there are times when the United States will seek to deport a person before their petition to cancel removal has been decided and reviewed. Some district courts are recognizing that deporting persons into a country hostile to them, where they are unable to communicate with attorneys or prosecute their petitions, is effectively a denial of habe...

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