• 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.

Latest documents

  • Notes on Contributors
  • Sovereign Wealth Funds and Investor-State Dispute Settlement: The Interplay between Domestic and International Investment Law

    Having managed to impose the prevalence of its interests in the twentieth century, inter alia, through ideas of "internationalization" of investment agreements signed between host states and private foreign investors and right of access, it is perhaps ironic to observe countries of the Global North seeking refuge in the caves of protectionism as evidenced in their recently-issued domestic laws. Now that the flow of FDI is no longer moving in one direction, developed countries have increasingly tasted the bitterness of presuming the role of the "host state of investments". Upon the conclusion of Global Financial Crises of 2007-2009, developed states have grown worrisome of the considerable rise in the importance of sovereign investors in general, and sovereign wealth funds ("SWFs") in particular, especially now that their assets under management have reached trillions of dollars. As a result of various concerns which developed countries have concerning investments made by SWFs, developed countries have been keen on taking necessary steps to control, or even block, foreign investments made by these funds. Recourse to national law to treat potential problems that naturally fall within the realm of international investment law, however, is problematic and is arguably not the best approach. States cannot invoke their domestic laws to rid themselves of international obligations which are incorporated in international investment agreements ("IIAs"). Guarantees against discrimination, including national treatment ("NT") and most-favoured-nation ("MFN") clauses, and fair and equitable treatment ("FET") can prove quite problematic for developed countries resorting to protectionist measures. A finding of breach of any of these substantive standards of protection by an investment arbitration tribunal entails the liability of the host state that committed the breach. On the basis of this discussion and analysis, the present piece of work emphasizes the importance of realizing the interplay between domestic and international law in the field of international investment law, and points to the inherent flaws and dangers of abandoning international obligations for protectionist measures. It further points to the existence of double standards in how developed countries have reacted to problems of foreign investment law in the twentieth century and in the present time.

  • The Brazilian Anti-Corruption Law: A New Way to Control the Relationship between Public Administration and the Private Sector

    Corruption is a very serious problem in Brazil. Since 1990, more than 50 laws have been enacted to combat misuse of public resources. Law 12.846, that entered in to force in 2013, has been commonly known as the "Corporate Anti-Corruption Law." Despite the traditional moral system, Law 12.846/2013 emphasizes private entities, which refreshes the Brazilian legal scheme of anti-corruption programs. In addition, it focuses on prevention. Thus, the objective of this paper, is to examine the main characteristics of this law, especially those that are different from the traditional Brazilian norms and seems to present weaknesses. It seeks to analyze whether the distinct rationality brought within the general scope of normative behavior is actually achieved in the law’s provisions. The methodology of the work is logic-deductive through examination of the law itself. The analysis is divided into three sections. First, the paper presents the context in which the law was promulgate, and sequentially, indicates the scope of the proscribed conduct and the judicial and administrative processes of punishment set forth the law. Further, the paper analyzes the doctrines of objective responsibility and the independence of transactions and occurrences. In addition, the paper critically examines the application of the law to foreign entities. The final section points out the important role that the Law has played spreading the culture of integrity, in an embryonic stage in connection with the law’s enactment. There are several shortcomings in the law, especially in the administrative procedural aspects and in the independence of instances, both of which should be considered and improved in this construction of new rationality.

  • A Momentary Glimpse of the Moon of the Bliss: A Conceptual Framework of Justice within the Semantic Tapestries of Legal Pluralism

    This paper examines the political-legal debates surrounding legal pluralism’s efficacy to counter injustice. Managing legal pluralism’s competing forces vis-à-vis a plurality-conscious framework has become increasingly challenging. Yet amidst unyielding state-centric etatism, reform-orientated activists yearn to glimpse the moon of bliss. This famous kahani (story) is simple: Little Krishna demands the moon as a toy. His mother, Yashoda, holds up a mirror so he sees the moon’s reflection in it and can play with it. Although pluralists yearn for the moon, the modalities and scope of legal pluralism, within the lacunae of international law, must be reassessed. Plurality-conscious justice is needed to overcome the myopia that has characterized complex legal landscapes, enabling pluralists to glimpse the moon of bliss, but never the full moon of justice.

  • Against Direct Presidential Election
  • Notes on Contributors
  • The Promise of the New Swiss Asylum Procedure Model: Current International Protection in (E.U.)rope

    Since its establishment, the Common European Asylum System tries to regulate asylum and related issues commonly within the E.U. territory. This paper focuses mainly on the current challenges as a result of misinterpretation of the international principles and norms in the E.U. law concerning the situations of the refugees from armed conflict regions. The methodology used here is the New Haven School which recognizes law as a continuing process of authoritative decision. The New Haven approach goes beyond the black letter of the law, the law in books. The New Haven School of Jurisprudence presents a constructive interdisciplinary approach to solving society’s problems on the international and domestic plane. The first part will focus on the problem where the root causes for Europe’s challenges in refugee law will be delimitated. The second part will give the stage for each claimant as a part of the "community" and define their values. The third part will exclusively focus on the past decisions, their conditioning factors, current law and decision trends within Europe and how the international as well as E.U. law is implicated domestically. The last two parts will focus on the appraisals, prediction of future trends, and they will further demonstrate how the Dublin Regulations transformed Europe’s migration challenge into a legal crisis for the Common European Asylum System and what the new Swiss Model promises instead.

  • A Comparison between the European and the American Approaches to Privacy

    This paper compares the European and the American approach to privacy. The essay argues that the European approach to privacy is rights-based, whereas the American tactic is expectation-based. The article discusses the European Union General Data Protection Regulation, as well as the newly-adopted California Consumer Privacy Act. The paper contends that the latter is an American response to the former. The paper concludes that if individuals prefer strict protection of their privacy rights, then the General Data Protection Regulation is the appropriate model. Otherwise, a reasonable expectation of privacy is sufficient.

  • The Trail Left Behind From The Nuclear Race: Radioactive Waste

    This article presents a discussion on the issue of the permanent disposal of radioactive waste. First, this article discusses the issues the United States has faced in terms of the Nuclear Waste Policy Act of 1982 and Yucca Mountain. Second, this article looks at the issue on a global scale. Lastly, this article addresses how a solution can be found through multinational cooperation with the assistance of the International Atomic Energy Agency. The article seeks to highlight the common issues that many countries face, and push toward a multinational solution. The mechanism by which this is accomplished starts with a focus on the United States, followed by connecting the issue beyond the United States’ borders.

  • Unmasking A Corrosive Democracy: A View from the Pit

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