Indonesian Journal of International & Comparative Law

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• Maritime (Dis)Order: The PRC and the Illusion of A South China Sea Code of Conduct

  President Xi once told a seminar of Communist Party officials "[t]he most important characteristic of the world is, in a word, chaos." In this vein, the PRC fosters and exemplifies international chaos by refusing to comply with its international legal obligations to benefit its own self-interests. As a state party to the United Nations Convention on the Law of the Sea Convention (UNCLOS), the PRC is legally obligated to comply with the multi-lateral treaty’s object and purpose. However, the PRC has violated numerous UNCLOS provisions regarding maritime claims, fishing, and freedom of navigation, among others. In response to the PRC’s continued disregard of UNCLOS, the Philippines brought suit against the PRC pursuant to Part VX of UNCLOS. In 2016, the Arbitral Tribunal’s award was largely counter to the PRC’s interests and validated almost every single one of the Philippine’s legal claims. To the dismay of the international community, however, the PRC rejected the Arbitral Tribunal’s jurisdiction and subsequently rejected the Arbitral Tribunal’s award. In addition to violating UNCLOS and rejecting the Arbitral Tribunal’s award the PRC has also acted inconsistent with the non-binding Declaration of Code of Parties in the South China Sea (DOC) which was adopted in 2002. The DOC was intended to "lay the foundation for long term stability in the area and foster understanding among claimant countries." The DOC was sparked by PRC aggression in the late 1990s, but the PRC has never acted consistent with the DOC’s object and purpose. In 2019, the PRC and Association of Southeast Asian Nations (ASEAN) began to negotiate a new South China Sea Code of Conduct until the COVID-19 pandemic stalled discussions. In August 2020, Chinese officials "called on their ASEAN counterparts to resume Code of Conduct negotiations as soon as possible." But after the PRC has committed so many transgressions in direct violation of its legal and voluntary political commitments, it is reasonable for one to consider whether a South China Sea Code of Conduct is worth-while and the extent to which it impacts the PRC’s legal obligation in the first place. A South China Sea Code of Conduct would not impact China’s maritime actions nor would it alter China's legal obligations under the United Nations Convention on the Law of the Sea (UNCLOS) or under the 2016 Arbitral Tribunal’s award in favor of the Philippines. Keywords: Law of the Sea, South China Sea, Southeast Asia, UNCLOS

• A Way Forward for Kuwait's Commercial Law Reform: A Theory of the General Commitment of Kuwait Law?

  In this article, we articulate what might be called as Kuwait's general commitment to (commercial) law. This refers to a set of commitments that are distinct from the liberal law's general commitment, identified by its insistence on the imperative of "a regime of law that helps to secure liberty." In contrast, the Kuwait case demonstrates that law can have "non-instrumental" value; that is, something that cannot easily be translated as promoting liberty or liberal ideals. This means what serves as the controlling commitment of the Kuwaiti commercial legal practice is the assumption that law can contain expectations which are different from what one normally finds in a liberal setting. By articulating the distinctiveness of Kuwait's general commitment to law, it can be argued that Kuwait's effort to reform its commercial law as a form of liberalization without commitment to liberalism. In effect, we conclude that a set of different approaches is justified should the reform be pursued more comprehensively. Keywords: commercial law, economic liberalization, law reform, Kuwait, Islamic law, legal theory

• Notes on Contributors
• Ecocide: Filling in the Environmental Gap in Current International Law

  This article explores the pressing need for the amendment of the Rome Statute to incorporate a distinct crime of ecocide. As environmental degradation and climate change escalate globally, there is an imperative to hold individuals and entities accountable for acts that cause widespread harm to ecosystems and the planet. Drawing on the precedent set by the United States and its pivotal role in shaping contemporary understandings of ecocide, this article argues for the codification of ecocide within international criminal law. The article examines the efforts of the Independent Expert Panel in defining ecocide, particularly emphasizing the inclusion of an intent element crucial for effective implementation. By analyzing case studies and legal precedents, it demonstrates the practical feasibility of integrating ecocide into the Rome Statute framework. Furthermore, the article highlights the potential deterrent effect of criminalizing ecocide on corporations and state actors engaged in environmentally destructive activities. Ultimately, the inclusion of ecocide as a distinct crime within the Rome Statute not only aligns with evolving global norms regarding environmental protection but also represents a significant step towards ensuring justice for future generations and the preservation of our planet’s ecological integrity. Keywords: Environmental Conservatism, Criminal Law, International Law Making, Legal Codification

• Notes on Contributors
• Softening Reciprocal Recognition and Enforcement of Foreign Judgments in China: A Multiple-Origin Review

  With a view to safeguarding the formation of a marketized, law-based, and internationalized business environment in China and the advancement of the Belt and Road Initiative, the Supreme Court of China has issued a series of adjudicative policies on liberalizing the reciprocity test for the recognition and enforcement of foreign judgments in China. These policies call upon Chinese courts to rectify the rigid de facto reciprocity approach and adopt the de jure approach, as well as other flexible approaches. This article examines the application of these new reciprocity approaches in Chinese judicial practice by reviewing cases from five major countries, namely the United States, Japan, South Korea, Singapore, and Germany. It finds that the Chinese courts have indeed changed from a pro-denying position to a pro-affirming position concerning reciprocity determination. It predicts that as more affirmative cases from a wider range of countries accumulate in Chinese courts, a more legalized market with reliable cross-border regimes for recognition and enforcement of judgments will emerge in China. Keywords: recognition and enforcement of foreign judgments, de facto reciprocity, de jure reciprocity, Belt and Road Initiative, business environment, private international law

• Death Penalty in Russia: From European Norms to Domestic Constitutional Identity

  This article examines Russia's complicated relationship with Western Europe over the issue of capital punishment and investigates whether it is possible for Russia to lift its long-standing moratorium on the death penalty since it is no longer a member of the Council of Europe. The article discusses the gradual shift in the relationship between Russia and the West with the death penalty becoming intrinsically connected to issues of sovereignty and domestic constitutional identity and examines the role of the Russian Constitutional Court in maintaining the death penalty moratorium in Russia. The article concludes that since the issue of capital punishment has clearly become a political one, which is tied to the idea of state sovereignty, and as political priorities change, the continuation of the moratorium on the death penalty is no longer a given

• Is There an Indonesian Constitutional Democracy? Welcoming the War on the Tradition of Meaning

  As far as English language scholarship on Indonesian legal studies is concerned, "deep empiricism" has now become Indonesia’s very own Leviathan. In this critical review, I argue that deep empiricism signifies the adoption of a singular understanding of constitutional democracy. As the Indonesian case shows, the translated constitutional democracy signifies a meaning that may not align with the original meaning of the concept. However, the assumption behind deep empiricism is that various questions can be answered without understanding, or at least vigorously clarifying, their conceptual meaning. Furthermore, it not only lacked interest in theorising but, more importantly, it failed to provide a more grounded account of what is actually going on. Worse, it denies the existence of human agency in the context of making sense of Indonesian legal and constitutional behavior. In other words, the commitment to deep empiricism has unwittingly led to the denial of Indonesia’s capacity to establish and evaluate its own desire; that is, making a subjective distinction between what is and is not desirable. Keywords: Conceptual Analysis, Comparative Constitutionalism, Legal Theory, Democracy

• Notes on contributors
• Locating the South Asian Experience in the Context of the Rights of Nature Movement

  The Rights of Nature movement is gaining global traction. Ever since the recognition of the rights of the Vilcabamba River in Ecuador, several jurisdictions have granted nature legal standing. It has been accomplished, at times, through recognising a natural entity as a legal entity, by recognising some legally protected rights for natural entities, by granting them legal personhood, or through giving them a legal status akin to humans. South Asia is no stranger to such developments. India, Bangladesh, and Pakistan have all recognized the rights of nature. However, on a broader scale, recognising the rights of nature in these jurisdictions has remained a sparse phenomenon with little or no bearing on the legal systems. A sequence of social, cultural, and economic factors plays out differently in these jurisdictions, thus hindering their inculcation, implementation, and enforcement within these legal systems. In this article, the authors identify the commonalities and diversions within the Rights of Nature movement in South Asia and seek to probe the same against the global developments in this regard. The article unfolds as a comparative study of the movement, keeping South Asia in context. Within South Asia, the authors have focussed explicitly on India, Pakistan, and Bangladesh, as these are the three jurisdictions which have cloaked nature with some rights

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