Who Decides What We Can Watch? Balancing Streaming Services Liberalization and Constitutional Rights in Indonesia

This chapter discusses the ILA Resolution on International Trade Law and Human Rights as submitted by ILA's International Trade Law Committee (ITLC) to the 73rd ILA Conference at Rio de Janeiro and approved, in a duly revised and shortened text, by ILA in August 2008. As international trade and trade law are mere instruments for enabling citizens to satisfy human demand for scarce goods and services through mutually beneficial cooperation among citizens across frontiers, promoting mutual consistency of international trade law and human rights is important also for poverty reduction and for strengthening the moral and democratic legitimacy of international law. The ITLC proposals for elaborating an ILA Resolution on International Trade Law and Human Rights focused on legal and judicial remedies in the field of international trade, with due respect for diverse constitutional traditions regarding regulation of human rights and economic freedom in national and international trade law. Keywords: human rights; international law; International Law Association (ILA); international trade law; International Trade Law Committee (ITLC); Rio de Janeiro Declaration

Numerous commentators have lauded international trade law, and the WTO dispute resolution mechanism in particular, as vehicles for change in international law more generally. In the sense that new rules of international trade law enhance international law, by creating new rights and obligations for the States parties to trade agreements, it is true that international trade law develops international law generally. In preparing the Articles on Responsibility of States for Internationally Wrongful Acts for example, the International Law Commission (ILC) had frequent regard to international trade law and the WTO. However, the influence of international trade law remains curtailed within the wider field of international law, outside the realm of WTO adjudication. Such influence in non-trade areas has been restricted for reasons such as its jurisdictional separateness, its limited relevance as part of the applicable law or even source of interpretation (due to the distinct or ‘sui generis’ character of trade law) and the informal hierarchy of international norms. But, there is room for non-trade-related areas of international law, and associated dispute resolution institutions, to learn from international trade law and in particular from the WTO as an institution.

Numerous commentators have lauded international trade law, and the WTO dispute resolution mechanism in particular, as vehicles for change in international law more generally. In the sense that new rules of international trade law enhance international law, by creating new rights and obligations for the States parties to trade agreements, it is true that international trade law develops international law generally. In preparing the Articles on Responsibility of States for Internationally Wrongful Acts for example, the International Law Commission (ILC) had frequent regard to international trade law and the WTO. However, the influence of international trade law remains curtailed within the wider field of international law, outside the realm of WTO adjudication. Such influence in non-trade areas has been restricted for reasons such as its jurisdictional separateness, its limited relevance as part of the applicable law or even source of interpretation (due to the distinct or ‘sui generis’ character of trade law) and the informal hierarchy of international norms. But, there is room for non-trade-related areas of international law, and associated dispute resolution institutions, to learn from international trade law and in particular from the WTO as an institution.

This study tries to produce a new ground for understanding the multidimensional concepts such as rights simultaneously for the people and humankind in international law and constitutional law with transnational connections. The impacts of transnational legal orders within nation-states are globalized in the modern international law and spectacles with normative and empirical-analytical lenses on constitutional and human rights while looking at international law and governance through constitutionalist glasses. International human rights law can have a significant impact on national systems, here constitutions. National constitutions may look at international and regional human rights norms to interpret and develop their national regulations. International and regional human rights norms can help national constitutional rights mechanisms in different ways, such as providing a base for the human rights claim on international or regional law. Such has been provided via the national constitution; or has contrarily been incorporated into national law. The use of the international and regional human rights law to interpret constitutional provisions and as a standard of protection increases (“Compilation of International Norms and Standards Relating to Disability.”). Not only that but also the evolution of international law called fragmentation also directs and denotes both a process and its result. It first refers to the dynamic growth of new and specialized sub-fields of international law, secondly to the rise of new actors beside states, and thirdly to new types of international norms outside the acknowledged sources. It is smoothly started by ratifying human rights treaties and simultaneously constitutional amendments during the times and had a significant growth by the emergence of new states and constitutions after the breakdown of the communist bloc in 1989. The stable bi-polar world order shift to a host of multilateral treaties (Peters, “Constitutional Fragments—On the Interaction of Constitutionalization and Fragmentation in International Law.” P3.). E.g., there is a five-part conceptual typology of the different ways that domestic courts can use foreign law: As (1) binding law, (2) a nonbinding norm, (3) an interpretive aid, (4) a basis for functional comparison, and (5) factual information (Jackson, Tolley, and Volcansek, U, Suny Series in the Foundations of the Democratic State. P48.). The comparative study of international law, human rights, and constitutional law have emerged as the new frontier of scholarship. Scholars and constitution drafters are increasingly using comparative methods in updating and upgrading conceptual and contextual experiences in their works; meanwhile, decision-makers, academics, and the general public alike tend to think that several normative orders coexist.

The lack of a consolidated set of norms, principles, and procedures in international health law reflect the haphazard manner in which the protection of human health has been addressed at the international level. But this does not mean that public international law does not play a role in promoting the improvement of human health. Rather, international health law can also contribute to shaping claims in other legal regimes. This can be ascertained by looking into developments in fields, such as international economic law, where human health has been directly at stake. On that account, this contribution lists some of the legal instruments that constitute norms of public international law with the core objective of the protection of human health. Then, a brief review of recent rulings from adjudicators in international investment and trade law is undertaken for assessing the way in which this crosscutting interpretation has taken place. Furthermore, the proliferation of non-binding documents dealing with issues of human health requires a broader approach than source-based legal positivism. Thus, the usefulness of the concept of governance for tackling the limited and fragmented array of binding instruments of international health law, as well as the challenges the concept poses for legal doctrine, are discussed. Keywords: International Health Law, International Investment Law, International Trade Law, Fragmentation of International Law, Tobacco Regulation

Before discussing the meaning of international law, it is important to know that law is divided into two large groups, private law and public law. However, the terms these two large groups are better known as international law and international private law. The difference between the two is in the objects they regulate. International law is the law that regulates relations between countries and other legal subjects. International law can be defined as the law that regulates international scale entities. Initially, the definition of international law was only defined as law that regulates behavior and relations between countries. However, in its development, the meaning of international law has expanded to include the relationship between states and international organizations, the relationship between international organizations and other organizations, the relationship between states and individuals in special contexts, and so on. There are six subjects of international law, namely : states, international organizations, the international red cross, the vatican holy see, rebels and individuals. International Law includes a set of rules and principles established through international treaties, the practices of states, as well as legal decisions and interpretations by international institutions. Its aim is to regulate the behavior of states in maintaining peace, managing conflict, promoting cooperation, and protecting human rights. International Law covers various aspects, including the law of war (also known as international humanitarian law), refugee law, maritime law, environmental law, international trade law, international investment law, human rights law, diplomatic law.

Domestic regulatory decisions involving matters of human health or the environment are increasingly coming under scrutiny by international courts and tribunals. One of the latest examples concerns an Australian law that mandates the plain packaging of cigarettes and which is being challenged in international investment law and international trade law. Both of these fields are closely related, yet despite the use of similar rules differ in important respects. This article analyzes the extent of the regulatory space that is afforded to states and WTO members in the international investment and international trade regimes. It does so by comparing the jurisprudence of investment tribunals regarding regulatory expropriations and the jurisprudence of the WTO dispute settlement organs in cases concerning human, animal and plant life or health as well as international standards. The article suggests that international investment law and international trade law offer insights for one another. But it also finds that international trade law has been more adept at incorporating concerns such as human health or the environment as a countervailing force to the prevailing paradigm of trade liberalization. International investment law is currently undergoing a similar discourse that has shaped international trade law shortly after the inception of the WTO in 1995. That discussion is carried out on the basis of different text and context, a different set of institutions and different epistemic communities. Despite these differences, there are growing signs of convergence of how much regulatory space is afforded in international trade and investment law, respectively.

As an important actor in the geopolitical arena, to suggest that India has played and continues to play, an extremely significant role in influencing the growth of international law would not be an overstatement. Indeed, spanning from international institutions, international economic law to human rights and humanitarian law, from international environmental law to the international law of the sea, there are scarcely areas of international law where the influence of contemporary Indian state practice can be considered marginal. Yet, as the following sections will demonstrate, India’s engagement with international law is, in many ways, sui generis. This is owing to the relentless tension between, on the one hand, a desire to actively participate in the international legal system to establish its centrality as a global actor, and on the other, the acute realization that international law was the principal vocabulary of its subjugation through the colonial encounter. This dialectic means that it is rather difficult to articulate a comprehensive “Indian” international law vision despite early postcolonial views on the subject. Rather (and not unlike other states), India’s stance on diverse international law aspects is interest-based, issue-specific and ad-hoc. Thus, while quick to point out the unique concerns of the Global South in areas of international trade and environmental law, in arguing for a permanent seat at the UN Security Council or claiming the “unable or unwilling state” doctrine to use force, for instance, the Indian stance is often not altogether dissimilar to that of powerful states in the West. Scholarship on Indian engagement with international law, much like India’s state practice, vacillates between the broad spectrum of eschewing universalism in critique and working with positivist doctrine akin to the methodology of the mainstream. There have been many scholars in India whose exceptional works have greatly enriched the understanding of international law both within the state as well as around the world. Yet, barring a few, many of their contributions, not unlike the South itself, have been ignored in mainstream scholarship. Without attempting to be exhaustive in its coverage, this chapter captures salient works within the broader theme of India and international law. The chapter is divided into subthemes within the international law discipline and attempts to provide a review of important works discussing India’s trysts with each branch. Being primarily a dualist country, many international obligations have been translated into the domestic law through legislation; this chapter, however, largely omits works focusing exclusively, or even primarily, on such municipal laws. Even within international law works, in providing a broad overview, many significant pieces have been omitted—however, this is not a comment on their importance, but rather a constraint based on space and length.

Sovereignty and Security: Constraints on Foreign Investment Control Arising from International Law Does international law impose constraints on States adopting, implementing or maintaining investment screening measures (ISMs)? Is the sovereignty of States in respect of whose investments and what types of investments to ‘permit’ into their territories unfettered? Or does that sovereignty only exist insofar as it is compatible with the (national) security exceptions provided for in many instruments of international economic law, as encompassing both international trade law and international investment law? These are the main questions that this contribution seeks to answer. ISMs have increased both in number and in scope in the past decades and the fact that they are included in the regulatory toolbox of many States raises questions as to the compatibility of these mechanisms, and the manner in which they are applied in specific instances, with norms of international law. The relevant norms are found, for example, in the World Trade Organization’s (WTO) General Agreement on Trade in Services (GATS) and in international investment (protection) agreements (IIAs). This contribution assesses the international legal norms that ISMs need to be compatible with if they are implemented and applied by host States seeking to exercise control over inward foreign investment on the basis of (national) security considerations. Thereto, after an Introduction (Section 1), the contribution sets out in Section 2, the key considerations in terms of sovereignty and international law, and the relationship between international legal norms and the desire to safeguard the domestic (legal) order from unwanted foreign influence. Thereafter, in Section 3, the contribution discusses the key considerations under the GATS in terms of ISM, and, in particular, the need to grant services and service suppliers of WTO Members treatment no less favourable than that is granted to the like services and like service suppliers from any other country. In addition, Section 3 examines potential considerations in respect of the Market Access and National Treatment obligation of the GATS, as well as the possibilities of relying upon the (security) exceptions in Articles XIV and XIVbis GATS to justify otherwise GATS-inconsistent ISMs. Finally, in Section 4, the contribution considers norms of international investment law that may restrict the ability of host States to implement or apply ISMs.

This chapter particularly concentrates on the international waste trade. It examines the normative matrix provided by three international legal regimes that converge on the particular global theme of international waste trading: international environmental law, international human rights law with references to international labour law, and international trade law. For this purpose, the most important elements for tackling the waste trade are assessed. After a brief overview on the regulatory frameworks' origins, the chapter addresses the fundamental pillars of the Basel Convention, the OECD Council Decision C(2001)107/FINAL and the European Regulation (EC) No 1013/2006 on Shipments of Waste. The chapter shows that the international waste trade can be addressed from different vantage points in international law, which has become subject to increased diversification and specialisation.Keywords: international environmental law; international human rights law; international trade law; international waste trade; OECD Council Decision; waste shipments

Globalizing What:Education as a Human Right or as a Traded Service? Katarina Tomasevski Introduction Globalization tends to be described as an extralegal phenomenon.1 This image does not apply to education for which there is international law, albeit composed of two parallel and disconnected legal regimes. International human rights law defines education as a human right; international trade law defines it as a service. 2 International human rights law is older than the law on trade in services, and domestic educational laws tend to be even older.3 Most of these define education [End Page 1] as compulsory and also as a right.4 Accordingly, they specify the corresponding governmental obligations. Large budgetary allocations for education reflect the legally defined extensive role of the state in education,5 and teachers are often the largest segments of the civil service.6 Against that role of the state in providing and/or financing education, globalization (defined as interaction across national borders unmediated by the state) fosters disengagement from education. The key facet of globalization, liberalization, is predicated on increasing the privatization of education,7 which demands decreased involvement of the state. In the 1990s, [End Page 2] this facet was built into the international law on trade in services, resulting in two conflicting legal regimes for education. International human rights law mandates state intervention, requiring it to ensure, at least, free and compulsory education for all children. International law on trade in services legitimates the sale and purchase of education, excluding those who are unable to purchase it, thereby jeopardizing the key human rights requirements that at least primary education should be free and compulsory. This article examines the practice of states in accommodating this legal duality of education. It focuses on the developing regions and countries in transition8 because the poverty of families, communities, and countries precludes access to education for many, if not most, unless education is free, namely provided or financed by the state. Its point of departure is international human rights law, which defines human rights—including the right to education—as universal. Its translation into reality would entail a minimum entitlement to education throughout the world, to be secured through international cooperation. Thereby governments would collectively comply with their human rights obligations. Consequently, globalization of education would be guided by a universal human rights obligation to ensure that education is free and compulsory for all school-age children in the world. However, the creation of international human rights law during the Cold War divided human rights into civil and political on the one hand, and economic, social, and cultural, on the other hand. Although education belongs in both categories, it also has been categorized as an economic, social, and cultural right. Its civil and political dimensions require respect of freedom; its social and economic dimensions mandate state provision and/or financing of education, while education as a cultural right often necessitates its affirmation as a collective right.9 [End Page 3] For the majority of countries in the world that recognize economic, social, and cultural rights,10 the corresponding human rights obligations presuppose governments' willingness and ability to raise revenue and devote the maximum available resources to human rights. An important aim is to ensure that education is free at the point of use, at least for compulsory education. Therein originates the conflict of laws. While international human rights law recognizes every child's entitlement to free education, international trade law makes access to education dependent on the ability to pay.11 Free trade does not have safeguards for the rights of the poor, least of all, for poor children. Hence, state intervention to safeguard free education for the millions of poor children necessitates corrective steps for the free market in education, facilitated by international cooperation. However, global development finance policies work in the opposite direction, as does trade in educational services.12 These counterpoised pressures, especially upon the governments of poor, impoverished, or indebted countries, result in an increasing incidence of for-fee rather than free education. [End Page 4] The phenomenon is not new; it was marked memorably by the United Nations International Children's Emergency Fund's (UNICEF) "Adjustment with a Human...

International Law and Treaties

This inquiry collects the legislative measures that Italy enacted throughout the course of the pandemic in connection with international law obligations, i.e. either by enforcing, derogating or breaching international law. In this respect, the objective of the analysis is twofold. On the one hand, it is aimed at outlining Italy’s attitude vis-à-vis international law and what role the latter legal system has played within the context of the crisis. On the other hand, it intends to offer a survey tool for comparative legal analysis to those who may wish to review the experience gained and the lessons learned from the pandemic. To this end, this investigation will consider only measures that fall under international health law, international trade law, international investment law and international human rights law as these regimes have been most affected in the last two years.

In international law, as in every legal system, rules are invariably subject to exceptions. This book brings together experts in legal theory and international law to investigate this phenomenon from both a theoretical and doctrinal perspective. It begins with several chapters looking at the relationship between rules and exceptions from different jurisprudential perspectives. These chapters serve to narrow down the principal types of exceptions, and what is at stake in deciding whether a given legal condition should be seen as part of a rule or as a self-standing exception. An important element is deciding how to allocate the burden of proving that the facts relevant to the condition are present. Subsequent chapters draw on these theoretical analyses, applying their insights to the way that exceptions exist in a wide range of topics and areas of international law, including self-defence, exceptions in treaty law, circumstances precluding wrongfulness in state responsibility, and the prohibition on derogations to jus cogens, as well as the specific regimes of international environmental law, international trade law, international investment law, and international criminal law.

Research is devoted to the study of the process of formation and development of norms and institutions of international trade law in Ukraine in the IX – first half of the XVII centuries. International trade law in modern Ukraine began to take shape on the basis of customs as international trade could not develop spontaneously. The study found that during the formation of Kievan Rus as a powerful state the international treaty is gradually becoming the main source of international law. The process of concluding international agreements in the early tenth century divided into stages, which included: preparation and acceptance of the terms of the agreement, consent to its binding force, signing and guaranteeing the implementation of the international agreement. The analysis of Rus- Byzantium treaties gives the grounds to claim that they were all concluded in the form of international treaties contained the rules of international trade law and were public law. The paper emphasizes that in the field of international law the principles and norms of law of international treaties (pacta sunt servanda), international trade and maritime law as well as diplomatic (ambassadorial) law are beginning to take shape. Among the principles of international trade law the principle of mutual interest and respect is important which was mostly reflected in the then international treaties and became the basis for the future formation of a broader principle – the principle of reciprocity. The process of evolution of norms and institutions of international trade law in the second half of the fourteenth – first half of the seventeenth centuries was influenced by a certain economic decline of Ukrainian lands due to the Mongol-Tatar invasion. However the expansion of commodity production as well as the further development of international, political, economic and social relations contributed to the further genesis of international trade law. The main sources of international trade law were international trade custom, international legal treaty, the rules of Magdeburg law. The norms of customary commercial law regulated first of all the legal relations between members of trade corporate guilds. The purpose of an international legal agreement was to establish, change or terminate rights and responsibilities in various interstate relations. The nature of international treaties was political but their content and the principles of compliance by the parties directly affected trade relations between states and other subjects of international trade law. In terms of the number of contracting parties the agreements were usually bilateral. The development of norms and institutions of international trade law in the second half of the fourteenth – first half of the seventeenth centuries was characterized primarily by the spread of Magdeburg law which led to the inclusion of international trade law in the system of municipal (city) law. The norms of Magdeburg law established the procedure for electing the city authorities and its functions determined the activities of merchants’ associations, the procedure for trade, etc. In the cities according to the norms of Magdeburg law there was a well-established legal terminology which simplified the conclusion of commercial agreements between local and foreign merchants.