Publisher:
The Institute for Migrant Rights
Publication date:
2014-03-27

Description:

As a premier Global South-based scholarly publication, The Indonesian Journal of International & Comparative Law is the first of its kind. The Journal aspires to serve as an influential international forum for scholarly analysis, that advancing leading edge debates in legal discourse and beyond. Since its first publication, it has garnered wide critical acclaim in the service of reinvigorating the reconceptualization of the law reform enterprises in beyond the Western world. By positioning itself in the vanguard of scholarship, the published viewpoints are curated from a wide range of contributors, starting from novices to multiple Pulitzer Prize winning authors. The Journal has regularly illuminated pressing legal questions across the continent, prominently cited by, among many others, the U.S. District Court Eastern District of New York in the U.S. v. Chin Chong and the U.S. Court of Appeals for the Ninth Circuit in the State of Hawaii and Ismail Elshikh v. Donald J. Trump et al. In addition to being listed as cited in many world’s eminent law journals, its unique nature has allowed the Journal’s publications to transgress the impenetrable boundaries of the academia, including the prestigious L.A. Times, Human Rights Watch’s World Report, and the American Bar Association’s India Law News.

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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