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      • Indonesian Journal of International & Comparative Law

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.

Issue Number

Latest documents

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

    Judicial review, its degree of legitimacy and the manner in which it is carried out are often discussed in legal literature and in the media. This article sheds light on the distinction between substantive judicial review and judicial review of the legislative process, which was at the center of the recent Kventinsky judgment given by the Israeli Supreme Court. Although judicial review of the legislative process is generally seen as more invasive, and as contravening the principle of parliamentary sovereignty, this article argues that the opposite is true. In order to illustrate this claim, we will present the existing legal situation in Israel, the United States, Colombia, South Africa and Hong Kong. We will then present an alternative model for judicial review of the process in Israel by using the judicial limitation clause found in the Israeli Basic Law: Human Dignity and Liberty. Finally, we will show that applying this proposed model would make judicial review of proceedings more objective, less invasive and therefore more befitting than substantive judicial review. Keywords: Law and Court, Comparative Analysis, Adjudication, Judicial Limitation, Human Dignity

  • 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
  • International Law and Child Marriage in Africa

    In recent years, civil society organizations in many countries around the world, as well as international organizations, such as UNICEF, have redoubled their efforts to end child marriage, prevent girls from marrying too young, and provide support for those girls that were already married as children. Child marriage is generally understood as a marriage or union-whether formal or informal-in which at least one of the parties is under 18 years of age. International organizations, such as the United Nations, have recognized child marriage as a violation of the human rights of the children involved and a practice that disproportionately affects women and girls globally. Human rights, including those of girl-children, are the purview of international law. Nevertheless, since the international community does not have a global government that can enact laws against child marriage and make certain that these laws are enforced, legal scholars have argued that the most important mechanism for the enforcement of international law, including international human rights law, is for each ratifying government to domesticate the treaties that they sign and ratify and hence, create rights that are justiciable in domestic courts. Where countries have not yet internationalized their national constitutional law, courts can use their interpretive power to bring each country’s law into conformity with the provisions of international human rights instruments. An examination of two cases dealing with child marriage, one from the United Republic of Tanzania and the other from the Republic of Zimbabwe, shows that courts in these African countries are gradually developing a jurisprudence that effectively addresses the problem of child marriage and its impact on the rights of children.

  • Addressing the Issue of Piracy off Indonesia and Nigeria: The Need for a Paradigm Change

    Given the abundant natural resources, especially oil and gas, including refined products, in Indonesia and Nigeria, which essentially rely on the maritime sector for their exploitation, exportation, and importation, a coastline devoid of piracy becomes imperative. Indeed, piracy significantly affects the exportation and importation of finished goods. More importantly, piracy has humanitarian, economic, and sociopolitical effects on both countries. Whereas the waters of both countries are deemed risky for navigation, the governments of Indonesia and Nigeria do not seem to be doing enough to curb piracy. This paper observes that due to the significant commonalities between both countries in terms of the nature of piracy, the significance of the maritime sector, internal security, and the geographical and economic positions in their regions, similar measures to curb piracy can be recommended for both countries. Consequently, the paper argues that strengthening legal regime and institutional framework, cooperation with regional countries, including other relevant institutions, and the political will to curb piracy by both governments are vital in suppressing piracy off Indonesia and Nigeria.

  • ASEAN Further Enhances Its Dispute Settlement Mechanism

    The ASEAN Economic Community (AEC) has been negatively impacted by the relative lack of credibility of its dispute settlement system, the ASEAN Protocol on Enhanced Dispute Settlement Mechanism (EDSM). Because of procedural and structural deficiencies and bureaucratic inertia, the EDSM has never been used. This lack of an effective dispute resolution system undermines investor confidence in the AEC, as uncertainty persists about how ASEAN Member States’ AEC commitments would be enforced. In 2019, ASEAN completed a further "enhancement" of the EDSM. On their face, the 2019 revisions do indeed "enhance" the EDSM by eliminating structural problems such as impractical timelines and by bolstering previously underdeveloped systems such as appellate procedures, creation of arbitration panels and rules of conduct for panelists. This will help give the revised EDSM more credibility. Ultimately, however, whether the updated EDSM will be viewed as more credible, thereby strengthening the AEC, will depend on factors beyond its remit. Cultural and political factors in ASEAN will determine to what extent the updated EDSM is used by the ASEAN Member States. Moreover, the relative decline of alternative dispute forums, in particular the WTO, may make the updated EDSM more attractive to ASEAN Member States. Either way, the 2019 revisions in the EDSM are both welcome and timely reinforcements to the legal and policy foundations of the AEC.

  • The Commercial Agency Law: Opening Kuwait's Market through Liberalization of the Principal-Agent Relationship

    As with many nations, Kuwait limits entry into its markets by requiring alternative means including joint venture, partnership, and agency agreements. As a result, even small changes to laws regulating these agreements can have an enormous impact on foreign firms’ access to Kuwaiti markets. The Kuwaiti Commercial Agencies Law has dramatically changed the commercial landscape. While this law has been subjected to intense scrutiny, the potential impact of the changes particularly regarding agency law, has escaped full exploration. This paper analyzes the legal consequences of the agency law and concludes that the liberalization of principal-agent relationship will profoundly impact foreign investment in Kuwait’s markets. While far from complete liberalization into its markets, the greater relative bargaining power of investor-principals has the potential to increase foreign investment in Kuwait.

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