Indonesian Journal of International & Comparative Law

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Latest documents

• Notes on Contributors
• To Review, or Not to Review? A Comparative Perspective of Judicial Review over the Legislative Process

  Judicial review, its degree of legitimacy and the manner in which it is carried out are often discussed in legal literature and in the media. This article sheds light on the distinction between substantive judicial review and judicial review of the legislative process, which was at the center of the recent Kventinsky judgment given by the Israeli Supreme Court. Although judicial review of the legislative process is generally seen as more invasive, and as contravening the principle of parliamentary sovereignty, this article argues that the opposite is true. In order to illustrate this claim, we will present the existing legal situation in Israel, the United States, Colombia, South Africa and Hong Kong. We will then present an alternative model for judicial review of the process in Israel by using the judicial limitation clause found in the Israeli Basic Law: Human Dignity and Liberty. Finally, we will show that applying this proposed model would make judicial review of proceedings more objective, less invasive and therefore more befitting than substantive judicial review. Keywords: Law and Court, Comparative Analysis, Adjudication, Judicial Limitation, Human Dignity

• The Position and Role of the Department of Ifta in the Formation of the Afghanistan Legal System

  It is a common wisdom that the Afghan legal system is highly influenced by Islamic law and the sharia’, and there is abundance of academic research in this regard. However, the existing research focuses less on the institutions that understand sharia in practice and gives it effective meaning in the legal and judicial processes in Afghanistan. One such body is the Department of Ifta’ in the Afghan Supreme Court which has received no scholarly attention at all although it plays the most important role in implementing and interpreting the sharia in practice. Judicial decisions that require the application and interpretation of the sharia cannot be resolved without the decision and opinion of the Department of Ifta. In order to fill this gap in the research on the Afghan legal system and the judicial realization of sharia or fiqh, in this paper I explore the position of the Department of Ifta in the legal system of Afghanistan. I also discuss the role that this institution has historically played in the formation and evolution of the Afghan legal and judicial systems. In modern day Afghanistan, the Department of Ifta has been formalized and forms an integral part of the country’s judicial system. Therefore, I explore the duties, authorities and structure of this institution in order to paint a complete picture of the Department of Ifta. Keywords: Law of the Sea, Law Enforcement, International Law, International Cooperation, International Criminal Law

• State Responsibility for the (Public) Right to Health and Security in Times of Covid Pandemic

  This article discusses the consequences of the broader concept of health as a security concept under the applicable law of the European Convention on Human Rights (ECHR) in the case of serious threats of to public health. Based on judgments by the European Court of Human Rights, a positive obligation of the Member States to act proactively towards health protection can be extracted from Article 5 (1) ECHR (liberty and security). The paper explores the scope of this provision in times of a public health emergency like a pandemic, a prolonged natural hazard or bioterrorism to protect a citizen´s health and life. This article has particular relevance before the present global Coronavirus (COVID-19) pandemic. Specifically, it argues in favour of a government’s right and duty to keep its citizens safe from harm by providing an ECHR perspective on governmental duties to act in a proactive way when dealing with public health emergencies while at the same time balancing its human rights obligations. Keywords: Human Rights, European Convention on Human Rights, European Court of Human Rights, Bioterrorism, Health Crisis, State Responsibility

• State International Responsibility and Transnational Pandemic: The case of COVID-19 and the People's of Republic of China

  This article addresses the possibility of state responsibility for transnational epidemics or pandemics, especially focusing on COVID-19 as a case study, a pandemic originated in the People’s Republic of China. To that end, this article analyzes this issue grounded on international health regulations together with the Constitution of the World Health Organization to be able to assess whether these rules are binding on the Member States. Furthermore, this article analyzes case laws from the International Court of Justice, and the feasibility of filing legal procedures against China before this U.N. Court for not informing the international society in due course about an impending COVID-19 pandemic. Keywords: State Repsonsibilty, Transnational Pandemics, International Health Law, COVID-19, International Litigation

• Research Projects: A Guide
• 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.

Featured documents

• 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...

• 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...

• 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...

• 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...

• 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,...

• Heartburn and the Constitution: The Case for a Compensatory Scheme in the Hatch-Waxman Amendments

  Although the decision of the Supreme Court in Pliva, Inc. v. Mensing preempted and thus, invalidated common law claims against generic drug manufacturers, the lower courts and the FDA proposed several solutions to compensate the victims affected by the side-effects caused by generic drugs. This...

• 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 ...

• Borderline Reasonable: The Circuit Split and the Application of Miranda Rights

  Miranda v. Arizona requires that an individual in custody "be warned prior to any questioning" that he or she has the right to remain silent, anything he or she says can be used against that individual in a court of law, that he or she has the right to the presence of an attorney, and, if ...

• Early Marriage as A Violation of Human Rights: A Proposal for Constructive Engagement in Non-Western Communities

  Although most countries have instituted minimum age laws for marriage, so that legal marriage can only occur after an age set by law, early marriage is still practiced for tradition, control, security, and other reasons. In other words, the phenomenon of early marriage is not unusual, but has...