Indonesian Journal of International & Comparative Law

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Latest documents

• Foreword
• Notes on Contributors
• Law and Religion in China: An Economic Approach,

  This project is an interpretation of the regulation of religions in China through economic language, analyzing the religious behavior of individuals given heavy regulation. The relationship of Chinese regulation of the five legal religions as either a regulated monopoly or an oligopoly. Due to the fundamentally legal nature of the industrial organization of religion in China, the project will analogize the legal relationship between the Chinese government and the five legal religions with the legal status of Chinese state-owned enterprises. The comparison between the laws governing state-owned enterprises and the laws governing social organizations like the legal religious organizations is important in interpreting the behavior of religious groups. The project will be focused mainly on the behavior of so-called religious "firms" in the context of the industrial organization model and the constrains that such a model puts on these firms. Furthermore, given the presence of an industrial organization of religion, spurs the creation of a parallel "informal" market of religious activity which includes special economic behavior among religious consumers.

• Examining the Islamic Jus in Bello

  Since the Four Geneva Conventions of 1949, the international community has garnered particular interest on how matters of war should be conducted. Ever since the realization that war is an inevitable norm of life and will continue to persist, States have come together to decide on what rules will govern the conduct of warfare, to ensure that war is fought as justly and proportionally as possible. Therefore, the Four Geneva Conventions contain rules governing the protection of combatants, both wounded and those rendered hors de combat. The Geneva Conventions also contain protections for prisoners of war and civilians, marking the first time that an international convention granted protection to civilians. Yet, these rules of war did not begin with international humanitarian law. Long before the law of armed conflict existed, religious texts governed conduct of war. The Holy Book of Islam, the Quran, along with the other sources of Islamic law existed to ensure that war would be fought in a humane manner. Thus, contrary to much of the western thoughts that presuppose that Islam does not place limitation on the conduct of war, Islamic law has long established its own version of the law of armed conflict that has come about due to an understanding that, because war is inescapable and is bound to occur, the Muslim population must know how to properly conduct themselves during an armed conflict. As such, this paper seeks to establish the rules of armed conflict that exist under Islamic humanitarian law, the Islamic jus in bello. In doing so, this paper will look to the Islamic law sources, as well as to the practice that existed among the earlier Muslim populations in order to establish the rules that govern the Muslim people both historically and today

• The Last ICTY Trial

  The international legal community’s definition of genocide is stringent and inhibits convictions of genocide. The definition of genocide established by the 1948 Geneva Conventions has three significant elements for conviction: intent to destroy, proportion of victims killed, and protected groups of people. In this article, the author argues that this definition is too restrictive in its application. Some of the specific crimes of the Bosnian Genocide in the 1990s do not qualify as genocide according to the Geneva Convention. This definition has three significant restrictions: 1) the perpetrators must have the intent to destroy a group of people or have the knowledge that their actions could destroy a group; 2) the number of people killed must be a substantial number compared to the amount available of a qualifying group; 3) the definition does not consider a political group as a protected group. This article analyses the genocide conviction of Ratko Mladic, the primary perpetrator of the 1995 Bosnian Genocide, by the International Criminal Tribunal for the former Yugoslavia (ICTY). This article examines Mladic’s ICTY trial and how the Court interpreted each element. In the end, it concludes, despite the correct ultimate decision by the ICTY, that the international legal community’s definition of genocide is flawed and prevents some genocide victims from receiving justice.

• The Lurking Peril that Still Await A Constitutional Answer
• Notes on Contributors
• Business and Human Rights: Human Trafficking in Fisheries Industries

  In March 2015, Associated Press released a story which investigated the link between human trafficking and the global fishing industry. The story immediately gained traction in the local media, and, soon after, the attention of Indonesian government as well as the global community. Afterward, the story sparked local investigations into illegal fishing, slavery, and human rights abuses on fishing boats. This opened the flood gates to many other accounts of human rights abuses across Southeast Asia by large fishing businesses. In response, this paper explores how large fishing companies commit international related crimes, such as, illegal fishing and human rights abuses using relative applicable international, regional, and Indonesian law. More specifically, this paper meticulously focuses on two vitally important interrelated problems in Southeast Asia, with a particular emphasis on Indonesia’s fishing industry. These larger problems reveal a set of acute problems that are categorized as illegal, unreported and unregulated Fishing (“IUU”) and the prevalence of human trafficking within that industry. In so doing, this paper will explore the empirical challenges Indonesia faced due to these problems. Following Indonesia’s empirical challenges, an analytical discussion explores the various causes to these problems, as well as a presenting a recommendation section. In addition, a discussion on The Ministerial Regulation of Fisheries Management System and Certification standards, which includes an action plan initiative in combating human trafficking in the fishing industry, providing a viable solution to the enforcement problem is also presented.

• Legal Fallout: The Legality of Nuclear Weapons under International Law

  Legal Fallout argues that while nuclear weapons are illegal under the modern regime of international law, they were legal at the end of World War II and throughout the Cold War. The article makes these arguments by giving a brief history of nuclear weapons and the tenets of international law that govern their use, and how the bulk of international humanitarian law indicated that use of the weapons was legal until recently. It considers the evolution of international law, and how that evolution ultimately led to nuclear weapons becoming unacceptable. Finally, Legal Fallout considers a hypothetical scenario where nuclear weapons could still be legal, even under the modern iteration of international humanitarian law.

• Humor as Pedagody: Evidence from Bosnia and Herzegovina

  This article critically explores the pedagogical possibilities of humor in the tertiary classroom, using Bosnia and Herzegovina, a small state in southeastern Europe (population: 3.5 million people) as case study, and the classical theories of humor—notorious for their general contempt for humor as intellectual tool—as point of departure. The paper makes an interrelated, three-fold, argument. First, contrary to the teachings of the three major theories of humor, particularly Incongruity Theory which portrays jokes as in-consonant with logic and rationality, humor has a key role in education. Second, just like many societies, Bosnia and Herzegovina has within its cultural system and milieu, the wherewithal for humor-based instructions that its educational policymakers at all levels need to tap into. Third, building on the first two points and reinforcing them, Bosnian laws and policies do not forbid creative use of humor in higher education. Two reasons make this study significant. The first is the concept of boundary that it elaborates for judicious application of humor in the tertiary classroom in Bosnia and Herzegovina and beyond. Second, while in no way sacrificing rigor in a field sometimes disparaged for its intellectual lightweight-ness, this paper is informed by multiple perspectives that include the authors’ subjective experiences in private higher education as lecturers, mentors, and administrators at the International University of Sarajevo.

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