Indonesian Journal of International & Comparative Law

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Indonesian Journal of International & Comparative Law

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

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Editor's Preface
Notes on Contributors
The Model of Disability in Saudi Arabia
The Convention on the Rights of Persons with Disabilities, an international treaty that addresses matters related to persons with disabilities, prohibits all forms of discrimination against persons with disabilities. Saudi Arabia signed the Convention in 2008, but has not yet ratified the Convention based on societal views of disability in Saudi Arabia. Specifically, Article 12 of the Convention raises concern for Saudi society as it advocates recognizing all persons with intellectual disabilities as full persons before the law, which is incompatible with the legal framework and social system in Saudi Arabia. However, disability can be viewed under different paradigms, called the models of disability. Over time, disability advocacy has called on people and society to change perceptions on disability using these different models of disability. Disability rights in Saudi Arabia are complex because how disability is viewed consists of a host of factors that shape societal views. Although different models of disability are examined in this article, the social model of disability provides the most nuanced framework to align societal views and legal reformation to improve the situation for people with disabilities in Saudi Arabia. After examining these models from a Saudi Arabian perspective, this article calls on Saudi Arabia to adopt the social model of disability in order to amend its laws and ratify the Convention.
The Broken Rules of Armed Conflicts and the U.N.'Constrains in Syrian Conflict
In recent times, Syria has come under intense public scrutiny. This is not unconnected with the wholesome atrocities committed against the civilian population and individuals who have become hors de combat in the ongoing Syrian war. Several cases of grave violations of international humanitarian law have been documented by the United Nations (U.N.) and several observer groups, the purport which leaves much to be seen as to the role of the international community to act decisively in stemming the ugly tides in the region. Yet, Syria is a signatory to many international legal instruments on armed conflicts. Against this backdrop, this paper analysed the broken rules of the Syrian armed conflict in juxtaposition with the U.N. Security Council’s constraints in resolving the Syrian conflicts. It found that a lot of rules have been broken in the methods of armed conflict in Syria. Yet, the U.N. Security Council is inhibited by legal constraints in the resolution of Syrian conflicts. The paper suggested, among others, that International Criminal Court should exercise its jurisdiction through referral mechanisms by the U.N. Security Council in order to make accountable the criminals of war in Syria.
Religious Constitutionalism: An Interpretative Reading
Is secularism dead? Many have argued that as a path secularism provides nothing but a dead end. Whether one likes it not, however, it is hard to rationally deny the desirability of having secularity as the ideal condition for national political contestation. From that vantage point, this paper argues that the alternative religious-friendly model that is based on pan-religious values has also failed miserably. In contravention of scholarly orthodoxy, the paper posits secularism is, in fact, the early Javanese nationalist’s endgame. In fact, secularity is implicit in the Javanese "political theory," and, thus, it is natural to assume that for the early nationalists, secularity was important for the national effort of "getting to Denmark." Unfortunately, Indonesia’s temporary accommodation of religion as a solution to the Islamists insistence has somewhat become fossilized in the political system. Furthermore, the Indonesian experiment with the moderate wall of separation has disturbingly encouraged more religious parochialism that is smuggled through the indigeneity-based claims. More importantly, it has set the political reform back.
Stranger in a Strange Land: The Alien and the State
The relationship of the stranger and the political community has traditionally been at the very core of various theoretical, historical and mythical accounts; in defining membership, in answering who is to be included, accepted and (thus) protected, in safeguarding a group’s position and its coherence. The essay argues that many of these accounts still prove to be of great value in a legal and a political perspective: None of the questions raised today when it comes to the phenomenon of migration and inclusion are particularly new; rather they have been addressed frequently over the last centuries. We would be well-advised to rely on a broader perspective, on the teachings of history, and the insights of political philosophy when facing the intellectual and political challenges of our time.
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 paper uses competing public policies to evaluate the efficiency and the justness of the solutions proposed. An in-depth analysis of the litigation surrounding the generic drug metoclopramide reveals that the current scheme left thousands of victims with no adequate remedy to compensate for their injuries. It thus appears that the federal statutes and most notably, the Hatch-Waxman Amendments, turned out to deprive the consumers of generic drugs of any judicial redress for their grievances. This paper concludes with an appeal to Congress to amend the Hatch-Waxman Amendments with a compensatory scheme providing restitution to the victims of generic drugs. Such a reform is the only option that can preserve the benefits of the Hatch-Waxman Amendments while restoring justice amid the regulations controlling the pharmaceutical drugs.
Preparing (Legally) for the Next Economic Downturn
Notes on Contributors
Islamic Law and the Right to Armed Jihad
This paper discusses the Jus ad Bellum, the right to go to war, in Islam. In Islam, there is a right to both defensive and offensive wars. Contrary to much of the western thoughts that presuppose that Islam does not place limitations on the conduct of war, however, Islamic law does establish its own version of the law of armed conflict that has come about due to an understanding that, because Islam sanctions both offensive and defensive wars, the Muslim community must know how to properly conduct themselves during an armed conflict. In this day and age, war is inevitable. It is a norm and not an exception. It is bound to occur, and, thus, it should not come as a surprise that the international community has come to an understanding that regulating the actions that occur during armed conflicts are a much safer alternative than placing an outright prohibition on war. International humanitarian law developed in order to regulate the procedures of war and provide for a just war. In this regard, what Islam has to say about armed conflict is no different. Yet, there is much misconception in the world today that many of whom are interested in the study of Islam are prone to misguidance. There is a lack of discourse in the legal scholarship surrounding the concept of Jihad. While Islamic law does sanction the use of force, there are limitations to the use of such force, a point that is often missed in the legal discourse. The acts of non-state actors, such as Al-Qaeda do not reflect the views of Islam, which will be touched upon in this paper. To provide an accurate interpretation of Islam, this paper will aim to examine the question of when the law of Islam provides for a just war. By analyzing the various sources of Islamic law, with emphasis on the Quran, this paper seeks to provide readers with an accurate depiction of when Islamic law authorizes the right to go to war.