Indonesian Journal of International & Comparative Law

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Latest documents

• Notes on Contributors
• International Law and Child Marriage in Africa

  In recent years, civil society organizations in many countries around the world, as well as international organizations, such as UNICEF, have redoubled their efforts to end child marriage, prevent girls from marrying too young, and provide support for those girls that were already married as children. Child marriage is generally understood as a marriage or union-whether formal or informal-in which at least one of the parties is under 18 years of age. International organizations, such as the United Nations, have recognized child marriage as a violation of the human rights of the children involved and a practice that disproportionately affects women and girls globally. Human rights, including those of girl-children, are the purview of international law. Nevertheless, since the international community does not have a global government that can enact laws against child marriage and make certain that these laws are enforced, legal scholars have argued that the most important mechanism for the enforcement of international law, including international human rights law, is for each ratifying government to domesticate the treaties that they sign and ratify and hence, create rights that are justiciable in domestic courts. Where countries have not yet internationalized their national constitutional law, courts can use their interpretive power to bring each country’s law into conformity with the provisions of international human rights instruments. An examination of two cases dealing with child marriage, one from the United Republic of Tanzania and the other from the Republic of Zimbabwe, shows that courts in these African countries are gradually developing a jurisprudence that effectively addresses the problem of child marriage and its impact on the rights of children.

• Addressing the Issue of Piracy off Indonesia and Nigeria: The Need for a Paradigm Change

  Given the abundant natural resources, especially oil and gas, including refined products, in Indonesia and Nigeria, which essentially rely on the maritime sector for their exploitation, exportation, and importation, a coastline devoid of piracy becomes imperative. Indeed, piracy significantly affects the exportation and importation of finished goods. More importantly, piracy has humanitarian, economic, and sociopolitical effects on both countries. Whereas the waters of both countries are deemed risky for navigation, the governments of Indonesia and Nigeria do not seem to be doing enough to curb piracy. This paper observes that due to the significant commonalities between both countries in terms of the nature of piracy, the significance of the maritime sector, internal security, and the geographical and economic positions in their regions, similar measures to curb piracy can be recommended for both countries. Consequently, the paper argues that strengthening legal regime and institutional framework, cooperation with regional countries, including other relevant institutions, and the political will to curb piracy by both governments are vital in suppressing piracy off Indonesia and Nigeria.

• ASEAN Further Enhances Its Dispute Settlement Mechanism

  The ASEAN Economic Community (AEC) has been negatively impacted by the relative lack of credibility of its dispute settlement system, the ASEAN Protocol on Enhanced Dispute Settlement Mechanism (EDSM). Because of procedural and structural deficiencies and bureaucratic inertia, the EDSM has never been used. This lack of an effective dispute resolution system undermines investor confidence in the AEC, as uncertainty persists about how ASEAN Member States’ AEC commitments would be enforced. In 2019, ASEAN completed a further "enhancement" of the EDSM. On their face, the 2019 revisions do indeed "enhance" the EDSM by eliminating structural problems such as impractical timelines and by bolstering previously underdeveloped systems such as appellate procedures, creation of arbitration panels and rules of conduct for panelists. This will help give the revised EDSM more credibility. Ultimately, however, whether the updated EDSM will be viewed as more credible, thereby strengthening the AEC, will depend on factors beyond its remit. Cultural and political factors in ASEAN will determine to what extent the updated EDSM is used by the ASEAN Member States. Moreover, the relative decline of alternative dispute forums, in particular the WTO, may make the updated EDSM more attractive to ASEAN Member States. Either way, the 2019 revisions in the EDSM are both welcome and timely reinforcements to the legal and policy foundations of the AEC.

• The Commercial Agency Law: Opening Kuwait's Market through Liberalization of the Principal-Agent Relationship

  As with many nations, Kuwait limits entry into its markets by requiring alternative means including joint venture, partnership, and agency agreements. As a result, even small changes to laws regulating these agreements can have an enormous impact on foreign firms’ access to Kuwaiti markets. The Kuwaiti Commercial Agencies Law has dramatically changed the commercial landscape. While this law has been subjected to intense scrutiny, the potential impact of the changes particularly regarding agency law, has escaped full exploration. This paper analyzes the legal consequences of the agency law and concludes that the liberalization of principal-agent relationship will profoundly impact foreign investment in Kuwait’s markets. While far from complete liberalization into its markets, the greater relative bargaining power of investor-principals has the potential to increase foreign investment in Kuwait.

• The Pandemic Case for a Supra-National Governance: A Redu
• Examining the Islamic Jus in Bello

  Since the Four Geneva Conventions of 1949, the international community has garnered particular interest on how matters of war should be conducted. Ever since the realization that war is an inevitable norm of life and will continue to persist, States have come together to decide on what rules will govern the conduct of warfare, to ensure that war is fought as justly and proportionally as possible. Therefore, the Four Geneva Conventions contain rules governing the protection of combatants, both wounded and those rendered hors de combat. The Geneva Conventions also contain protections for prisoners of war and civilians, marking the first time that an international convention granted protection to civilians. Yet, these rules of war did not begin with international humanitarian law. Long before the law of armed conflict existed, religious texts governed conduct of war. The Holy Book of Islam, the Quran, along with the other sources of Islamic law existed to ensure that war would be fought in a humane manner. Thus, contrary to much of the western thoughts that presuppose that Islam does not place limitation on the conduct of war, Islamic law has long established its own version of the law of armed conflict that has come about due to an understanding that, because war is inescapable and is bound to occur, the Muslim population must know how to properly conduct themselves during an armed conflict. As such, this paper seeks to establish the rules of armed conflict that exist under Islamic humanitarian law, the Islamic jus in bello. In doing so, this paper will look to the Islamic law sources, as well as to the practice that existed among the earlier Muslim populations in order to establish the rules that govern the Muslim people both historically and today

• The Last ICTY Trial

  The international legal community’s definition of genocide is stringent and inhibits convictions of genocide. The definition of genocide established by the 1948 Geneva Conventions has three significant elements for conviction: intent to destroy, proportion of victims killed, and protected groups of people. In this article, the author argues that this definition is too restrictive in its application. Some of the specific crimes of the Bosnian Genocide in the 1990s do not qualify as genocide according to the Geneva Convention. This definition has three significant restrictions: 1) the perpetrators must have the intent to destroy a group of people or have the knowledge that their actions could destroy a group; 2) the number of people killed must be a substantial number compared to the amount available of a qualifying group; 3) the definition does not consider a political group as a protected group. This article analyses the genocide conviction of Ratko Mladic, the primary perpetrator of the 1995 Bosnian Genocide, by the International Criminal Tribunal for the former Yugoslavia (ICTY). This article examines Mladic’s ICTY trial and how the Court interpreted each element. In the end, it concludes, despite the correct ultimate decision by the ICTY, that the international legal community’s definition of genocide is flawed and prevents some genocide victims from receiving justice.

• The Lurking Peril that Still Await A Constitutional Answer
• Foreword

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