Indonesian Journal of International & Comparative Law

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Latest documents

• The Intersection of Shariah Law and Gender Equality in Some Arab States' Constitution

  Although Sharia provisions are broadly applicable and not necessarily intended to limit the scope of women's rights, these rights in Arab constitutions are usually discussed in the context of other constitutional articles stipulating Islamic Law. Therefore, this paper attempts to reconcile two ideas: women's right to gender equality and the application of Islamic law are constitutionally protected. This paper further analyzes the legal treatment of the right to gender equality and Islamic law in the constitutions of some Arab states. Because the judiciary plays a significant role in protecting and enforcing constitutional rights, this paper investigates the application of both constitutional concepts when constitutional courts rule on gender equality cases to determine the jurisdictional allocation of discretion for the interpretation of such clauses, as well as the relevant facts to the policy expressed

• The Problematic of the 'All or Nothing' Approach to Determining Regulatory Expropriation of Foreign Investment: Towards Proportionality as a Measure of Compensation

  It is the sovereign right of countries to regulate activities in their jurisdiction including foreign investment. However, it is quite often controversial whether and when a certain regulation becomes expropriation, hence deserves compensation. While some tribunals use the ‘sole-effects’ doctrine to determine regulatory expropriation by considering the impact of a regulation, others use the ‘police-powers’ doctrine that emphasizes the goals of such regulation to make that decision. In both cases, the end result happens to be either ‘all or no’ compensation which does not help to strike a balance between the regulatory interest of the state and the economic interests of an investor. Even if some investment tribunals applied the proportionality test to determine regulatory expropriation, it, too, is hooked up with the ‘all or no’ compensation approach since the focus is to determine the occurrence or non-occurrence of regulatory expropriation instead of measuring the amount of compensation. By critically appraising the prevailing trend in determining regulatory expropriation under the investment treaty arbitration arena, this research article aims to look for ways to striking an appropriate balance between the interests of an investor and a state in dispute. To this end, the article employs a textual analysis and its design is doctrinal and qualitative one. The research draws on both primary sources of data (such as investment agreements and case law) as well as secondary sources of data (books, articles, reports and online materials). It is argued that investment tribunals can, and should, overcome the ‘all or nothing’ trap by using the proportionality test as a measure of compensation instead of using it as determinant of the occurrence or non-occurrence of regulatory expropriation. This can be done by first determining the occurrence of regulatory expropriation based on the impact of a regulation, and then calculating the amount of compensation having regard to a reasonable relationship between the goal and impact of a regulation

• 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

• Notes on Contributors
• Foreword
• Disarmament is Good, but What We Need Now is Arms Control

  This article aims to correct a number of misconceptions held by both scholars and activists about the United Nations Treaty on the Prohibition of Nuclear Weapons (TPNW), and international nuclear weapons law generally. It first reviews the development of international law related to nuclear weapons, and provides a novel taxonomy of legal obligations divided into three substantive categories. It then examines the TPNW within that taxonomy, and considers how it should be understood to fit within this legal context. It concludes that the TPNW is essentially a nuclear disarmament treaty. While it should be wel- comed as a contribution to nuclear disarmament law, it should not be confused with nuclear arms control treaties, which are distinct in role and purpose. The article concludes that at the current moment of crisis in nuclear arms control law, a refocusing of attention is needed to conclude a successor treaty to New START, which is due to expire in 2026.

• The Evolutive Interpretation of the African Charter on Human and Peoples' Rights

  This article regionalizes the discourse on the evolutive interpretation of human rights treaties to Africa. In it, three broad issues are discussed. First, it discusses the extent to which the African Human Rights Commission and Court may adopt the evolutive interpretation in interpreting the African Charter. Second, it examines the challenges to this interpretation method. Third, it discusses the counterarguments to the challenges. The article argues that two main groups of provisions may support an evolutive interpretation of the African Charter – the “any other status” clause in Article 2; and Articles 60 and 61, referred to as the “decompartmentalization articles.” It finds that the popular notion that evolutive interpretation is contrary to the traditional international law principle of intent and consent and the potential clash of evolutive interpretation with African values are the main challenges to adopting the evolutive interpretation of the African Charter. In turn, the article provides counterarguments to these challenges.

• Legislating International Legal Ambiguity in A Contentious Democracy: Indonesia's Interpretation of Global Maritime Cabotage Princples

  In this paper, we show that the ambiguousness of international legal principle is an open vessel for the receiving domestic politics to appropriate, so much so that it becomes self-contradictory. To a great extent, this international legal ambigu- ity has rendered international legal principle to be meaningless. To substantiate it, we discuss how global maritime cabotage principle is being translated in In- donesia. The Indonesian case suggests that both legal and extra-legal consider- ations have equally informed the ever-shifting meaning of cabotage principle. Clearly, this signifies that the process of domestic legislation plays the determin- ing role in defining the semantic content of an international legal principle. In other words, it is important to take the domestic process of legislation seriously. As such, this paper presents a contribution to the discourse of the rule of law building in developing legal systems, such as Indonesia.

• Excessive Reliance on Judicial Review in Indonesia: A Tactic to Avoid Democratic Accountability?

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

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