-
Indonesian Journal of International & Comparative Law

- Publisher:
- The Institute for Migrant Rights
- Publication date:
- 2014-03-27
Description:
Issue Number
- Nbr. 28, October 2020
- Nbr. 27, July 2020
- Nbr. 26, April 2020
- Nbr. 25, January 2020
- Nbr. 24, October 2019
- Nbr. 23, July 2019
- Nbr. 22, April 2019
- Nbr. 21, January 2019
- Nbr. 20, October 2018
- Nbr. 19, July 2018
- Nbr. 18, April 2018
- Nbr. 17, January 2018
- Nbr. 16, October 2017
- Nbr. 15, July 2017
- Nbr. 14, February 2017
- Nbr. 13, January 2017
- Nbr. 12, October 2016
- Nbr. 11, July 2016
- Nbr. 10, April 2016
- Nbr. 9, January 2016
Latest documents
- Notes on Contributors
- The Ex Officio Power of the Arbitrator to Raise New Issues of Law in Islamis Finance Disputes
The legal nature of arbitration varies from the legal nature of litigation. While the judge derives his authority from the state power, the arbitrator derives his powers, in the first place, from the parties' agreement. The power of the court to raise new issues of law ex officio is widely recognized. When it comes to arbitration, the matter is more complicated. The ex officio power of the arbitrator to raise new issues of law is controversial in international commercial arbitration. The situation is even more complicated in contemporary Islamic finance disputes due to the nature of the applicable law to the merits of such disputes. Sharia, which is the applicable law or a significant part thereof, obliges the arbitrator to apply the mandatory rules of Sharia ex officio regardless of the parties' claims. Under Sharia, the primacy is to its mandatory rules, contrary to international arbitration which grants the primacy to party autonomy. This sometimes results in a conflict between the rules of Sharia and the rules of international arbitration. This paper examines to what extent the arbitrator may raise new issues of law ex officio in Islamic finance disputes. The paper argues that the arbitrator has a power, not a duty, to raise new issues of law ex officio in Islamic finance disputes; however, such a power is surrounded by considerable practical and legal challenges which may impede it. In doing so, the paper compares the scope of arbitrator's power between Islamic legal theory and international arbitration theory. It also examines and analyzes the available case studies which deal with the ex officio power of the arbitrator to raise new issues of law in Islamic finance disputes.
- Hiding in the Shadow: The Legacy of Colonial Sodomy Laws and Strategies for Their Repeal
Asia is home to an estimated 220 million LGBTQ people across forty-nine countries; however in twenty-one of these countries, LGBTQ people are still subjected to prosecution under colonial-era sodomy laws. The common characteristic amongst the majority of the countries that criminalize sodomy today? They are former British colonies. This article tracks the implementation of sodomy laws in former British colonies in Asia, describes how these former colonies addressed sodomy laws after becoming sovereign nations, and compares how multiple countries, including India, Singapore, and Myanmar repealed or attempted to repeal sodomy laws. This article also recommends strategies to encourage the acceptance of LGBTQ rights and ultimately to repeal the remaining sodomy laws. These recommendations are based on successful strategies used in Asia and address how people, non-governmental organizations, and the government can stimulate changes.
- Progress? A Comparative Analysis of Disability Law in Former Soviet Countries
This piece compares the rights of the disabled under the Soviet Union to the rights of the disabled in modern-day Russia and Estonia. The paper included Estonia because Estonia is the richest and most stable former Soviet Nation, so it would create a good contrast to Russia because Estonia has been able to flourish despite having to transition out of decades of Soviet control. The piece uses the comparison between all three states to look at what role the rule of law has on the rights of the disabled. Both the USSR and Russia had many issues with the rule of law, while Estonia is a stable democracy. The paper also seeks to evaluate whether disabled people have unequivocally better lives in post-Soviet Russia compared with the Soviet Union. The paper concludes that despite Russia technically being freer than when it was under Soviet control, many of the issues for the disabled in the Soviet Union remain in modern-day Russia due to Russia’s deteriorating rule of law. Estonia, on the other hand, has created a myriad of rights for the disabled because it has a responsive democracy.
- Towards the Javanese Legal Culture: A Call to Put the Horse Back in front of the Cart
- 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
- Notes on Contributors
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