International Law Instruments Research Articles

Pemenuhan Hak Asasi Manusia kepada Etnis Rohingya di Myanmar

The occurrence of human rights violations against the Rohingya ethnicity in Myanmar has become an international concern. The Rohingya, who have lived for generations in this part of Myanmar, are not getting justice from the Myanmar government. The various human rights violations that have occurred are of course against the basic instruments of international law. This study aims to describe and analyze international human rights arrangements with regard to the protection of the Rohingya ethnicity, as well as any obstacles in providing protection for the Rohingya ethnic group so that no solution has been achieved in resolving these human rights violations. In this study, using a normative legal research method with a statutory approach, a case approach and an analysis approach. The type of legal material in this research is secondary data consisting of primary, secondary and non-legal materials. Then processed and analyzed using prescriptive methods. Based on the research results, it is known that legal protection of the Rohingya ethnicity in accordance with international human rights instruments has not been fulfilled because there are various obstacles in resolving the root of the conflict on human rights violations in Myanmar. Some of them are the reluctance of the Myanmar government to resolve cases of Rohingya ethnic human rights violations. In view of the lack of willingness of the Myanmar government to resolve cases of human rights violations, the UN criticized and attempted to carry out humanitarian intervention to resolve gross human rights violations against the Rohingya ethnic group. For this reason, this paper seeks to elaborate on what responsibilities the Myanmar government should provide for protection according to international human rights as well as what obstacles have caused cases of human rights violations against ethnic Rohingya to be resolved.

The “philosophy” of economic diplomacy as an instrument of “soft law”: history and modernity

The subject of this research is the phenomenon of economic diplomacy as an instrument of “soft law”, which is becoming widespread in the international relations of modern multipolar world. The object of this research is the international relations and the impact of international legal norms upon formation of their peculiarities. Attention is given to the differences between “soft” and “hard” international law, as well as international and “quasi-international” law. The author explores various historical aspects of international relations, within the framework of which are implemented certain legal mechanisms and instruments. Incompletion of evolution of the phenomenon of “soft law” at the present stage is observed. The conclusion is made that the task of “soft law” in international relations lies in the use of the established international legal toolset and correction of the global world order to the benefit of a certain country of group of countries. It is noted that that key criterion that determines “soft law” as a unique instrument of international relations and international law is the nature of the means that without the extensive use of non-legal instruments. At the same time, the authors claim that in a number of cases, the emergence of legal mechanisms is the result of continuous application of “soft law”.

Pemenuhan Hak-Hak Korban Pelanggaran Berat Hak Asasi Manusia di Indonesia

Serious violations of human rights occurred in Indonesia despite Indonesia’s ratification of a number of international human rights law instruments. Victims, including their family and descendants, experiences suffering and loss. Still, there are many victims who haven’t received their rights until now. International law holds states accountable for the victims’ dignity as human beings. This research will examine the fulfillment of the rights of the victims in order to obtain effective and fair remedy and to analyze the application of international human rights law in Indonesia in order to fulfill the rights of the victims of serious violations of human rights. This research was conducted using a sociological juridical approach that collects and analyzes qualitative data. The result shows that the right to truth, the right to justice, the right to reparation and the guarantee of non-repetition are the forms of rights within the framework of transitional justice that must be given to the victims. These rights are interrelated, so they must be fulfilled thoroughly. Indonesia made real efforts to fulfill the rights by establishing a human rights court to resolve the cases of Timor-Timur (East Timor), Tanjung Priok and Abepura. Another effort is made by establishing legal regulations. In fact, Indonesia only recognizes and regulates some rights. The existing legal regulations have not yet encouraged effective implementation, making them difficult to implement. It is necessary to evaluate and re-conceptualize existing legal regulations so that the rights of victims are fully recognized and easy to apply.

Environmental Management of ISO 14001 System Enforcement in EU Countries

The European Union International Organization for Standardization management system for the environment (ISO 14001) is established by European Commission Regulation 1221/2009. This legislates a voluntary system where organizations can register in a community eco-management and audit scheme. In the literature, this standard is recognized as an instrument of international environmental protection law, introduced by soft law regulations. ISO 14001 has been implemented by many global and European organizations, and it strives to improve the quality of their environmental resources.
 It was considered that the ISO 14001 eco-management and audit scheme enforced protection of environment in EU countries by imposing the obligation to implement appropriate legal regulations in this area. This article aims is determine what legal solutions in chosen UE countries enable the effective implementation of ISO 14001 and what positive effects it has on the state of the environment in these countries.
 The results demonstrated that the number of certified organizations is increasing despite the many difficulties and costs of implementing and organizing required environmental protection areas. The implementation of ISO 14001 was described using the example of Poland and Italy compared to other EU countries. The uptake identifies improved environmental quality, and this is confirmed by indicators of decreasing gas emissions and increasing waste recycling which improve global air, soil and water quality. The higher implementation index of the ISO 14001 standard in Italy translates into higher environmental quality indicators in this country than in Poland.

Overlapping International Instruments for Enforcement of Insolvency Judgments: Undermining or Strengthening Universalism?

In recent years modified universalism has emerged as the normative framework for governing international insolvency. Yet, divergences from the norm, specifically regarding the enforcement of insolvency judgments, have also been apparent when the main global instrument for cross-border insolvency has been interpreted too narrowly as not providing the grounds for enforcing judgments emanating from main insolvency proceedings. This drawback cannot be overcome using general private international law instruments as they exclude insolvency from their scope. Thus, a new instrument—a model law on insolvency judgments—has been developed. The article analyses the model law on insolvency judgments against the backdrop of the existing cross-border insolvency regime. Specifically, the article asks whether overlaps and inconsistencies between the international instruments can undermine universalism. The finding is mixed. It is shown that the model law on insolvency judgments does add vigour to the cross-border insolvency system where the requirement to enforce and the way to seek enforcement of insolvency judgments is explicit and clear. The instrument should, therefore, be adopted widely. At the same time, ambiguities concerning refusal grounds based on proper jurisdiction and inconsistencies with the wider regime could undermine the system. Consequently, the article considers different ways of implementing the model law and using it in future cases, with the aim of maximizing its potential, including in view of further developments concerning enterprise groups and choice of law.

Overlapping International Instruments for Enforcement of Insolvency Judgments: Undermining or Strengthening Universalism?

In recent years modified universalism has emerged as the normative framework for governing international insolvency. Yet, divergences from the norm, specifically regarding the enforcement of insolvency judgments, have also been apparent when the main global instrument for cross-border insolvency has been interpreted too narrowly as not providing the grounds for enforcing judgments emanating from main insolvency proceedings. This drawback cannot be overcome using general private international law instruments as they exclude insolvency from their scope. Thus, a new instrument – a model law on insolvency judgments – has been developed. The article analyses the model law on insolvency judgments against the backdrop of the existing cross-border insolvency regime. Specifically, the article asks whether overlaps and inconsistencies between the international instruments can undermine universalism. The finding is mixed. It is shown that the model law on insolvency judgments does add vigor to the cross-border insolvency system where the requirement to enforce and the way to seek enforcement of insolvency judgments is explicit and clear. The instrument should, therefore, be adopted widely. At the same time, ambiguities concerning refusal grounds based on proper jurisdiction and inconsistencies with the wider regime could undermine the system. Consequently, the article considers different ways of implementing the model law and using it in future cases, with the aim of maximizing its potential, including in view of further developments concerning enterprise groups and choice of law.

Abolition of Slavery, Human Trafficking and Forced Labour Pespectives of International Law and Islamic Law – the Libya of the Post-Gaddafi Regime as a Case Study

Slavery, human trafficking and forced labour are anti-human and unacceptable practices that cut across cultures, nationalities, and dogmas, while taking on different dimensions. International law, Islamic law and various national laws have declared these practices illegal within their respective legal frameworks. However, owing to factors associated particularly with internationalism, including weak enforcement mechanisms, these practices have continued unabated around the world. The practices have taken on a new dimension in Libya because of the political turmoil in that country. This has opened doors for the transnational mafia to engage in the practices and has effectively made African youths easy prey. As a Muslim majority country, Libya is a member of the United Nations Organisation and Pan-African, Islamic and Arab organisations. It is therefore bound by the relevant laws of these international organisations aimed at eliminating the menace of slavery, human trafficking and forced labour that had become established practices in the country. If Libya has remained politically unsettled, it is necessary to ask the question: Can these international and Islamic norms be enforced? This article attempts to explore the historical background of slavery in Africa and its abolition through the instruments of both modern international law and Islamic law. It is also an attempt to contextualise Libya within the theoretical frameworks of those principles and their application in a country that is faced with challenges associated with the breakdown of law and order.

EU Law in investment arbitration: a view from international arbitral tribunals

The conflict between international investment law and EU law provides fruitful insights into how the arbitral tribunals, acting outside the EU’s judicial system, have viewed the EU and EU law. Taking as an example the topical questions of the principle of autonomy of EU law as well as the EU’s State aid rules in investor-State arbitration, the article discusses how arbitral tribunals have seen the role of EU law and how they have treated the opposite demands from the two legal regimes. The claim of EU law rendering the intra-EU investment treaties invalid has constantly proved unsuccessful, and the tribunals have maintained their jurisdiction to be based on international law. However, the possibility of EU law affecting the assessment of the merits of the cases is clearer and more accepted. While harmonious interpretation could somewhat alleviate the remaining conflicts between the two legal regimes, it is unlikely that either regime would compromise the core elements of their systems. The article argues that, for the specific nature of the EU’s legal order to be secured in a way that does not conflict with international law, the relationship between EU law, international (investment) law and investment dispute settlement should be clearly regulated in instruments of international law.

Nondiscrimination Policy and Privacy Protection in Case of Genetic Passport for Soldiers

It is difficult now to imagine the field of life, where genetic technologies have not been used. In Russia, there are already genetic passports of athletes, which made it possible to identify so-called "sports genes" that can predict individuals' inclination to a particular sport. In the United States of America, the Department of Defense (DOD) collects and uses the genetic information of all U.S. service members, including active duty and reserve military personnel. This article aims to explore the connection between genetic discrimination and protection of privacy. Whether the accessibility of such genetic data at the disposal of third parties will not lead to violations of their privacy that could further result in genetic discrimination? Basic human rights instruments in domestic and international law that regulates the right to non-discrimination and right to privacy will be reviewed beneath.

Intertemporal interpretation of the Outer Space Treaty and non-state actors

Changes in space exploration technologies have led to the emergence of new types of space exploration and use, as well as to the participation of non-State actors in space activities. The existing instruments of international space law do not provide clear answers to many of the questions that arise in this regard. Especially significant problems are associated with the intention to start developing the mineral resources of celestial bodies. In the process of interpreting the Outer Space Treaty and other treaties, they are often evaluated from the perspective of today. The authors believe that the real meaning of the norms of space law can be understood only by applying an intertemporal approach, that is, evaluating contracts in terms of the law and the conditions that existed at the time of their conclusion.

Free-Flow of Data. Is International Trade Law the Appropriate Answer?

The paper - presented in a Conference organized in March 2020 at Dublin City University on Protection Imperialism and Data Sovereignty - points out that free-flow of data is a growing issue of contention in international relations and that there is an urgent need for agreements on the issue. It doubts however that traditional international trade law instruments (typically GATT and GATS, and related regional agreements) are the appropriate tools, while surely international trade fora have the experience to come up with ad hoc solutions based on national sovereignty, reciprocity and involvement of other international organizations such as ITU. The paper also posits that from a FFD perspective there is little difference – nor a significant difference can be made – between “personal data” and “non-personal data”.

National Sovereignty Versus Transboundary Water Cooperation: Can You See International Law Reflected in the Water?

Could Turkey dam the Tigris and Euphrates and deprive its downstream neighbors of vital water resources? Could Brazil over-pump the Guarani Aquifer System to the detriment of the other aquifer states? Could Egypt put pressure on upstream Nile states and prevent them from developing river related infrastructure that might limit downstream flow? International law in the field of transboundary water cooperation has evolved and would appear to condemn unilateral practices such as the ones suggested above. However, hydro politics and the lack of reception of international water law instruments by many countries sometimes make it difficult to see international law properly reflected in the management of major rivers, lakes and aquifers around the world. In this essay, I first highlight what international law dictates when it comes to the tension between national sovereignty and transboundary water cooperation. I then explore how this tension plays out in the three examples noted above. Due to limited acceptance of the existing international, bilateral, or regional legal instruments, the resolution of the tension between national sovereignty and transboundary water cooperation will often be left to customary international law.

Responsible Business in a Digital World – What’s International Law Got to Do With It?

The observation that digital transformation challenges some of the underpinnings of traditional international law and regulation also applies to responsible business conduct. The Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises are the most comprehensive international standard on responsible business conduct. This article discusses the impacts of digitalisation on responsible business conduct and the relevant case law by OECD National Contact Points and shows that as a sui generis instrument of international law the Guidelines can play an important role in accommodating business as the key driver of digital transformation and in addressing the related risks on people, the environment and society. However, several shortcomings of the existing regulatory framework are identified, particularly with regard to the imbalance of state and business responsibilities and the challenges for adequate regulatory responses in a highly dynamic environment where developments are driven by the private sector. Therefore, a holistic approach, based on 'Responsible Business Conduct by Design' both in technology and regulation is suggested. Given the specific features and impacts of digitalisation on responsible business conduct, such an approach would need to be of a hybrid nature by including a variety of actors and models of regulation beyond the state. To create a safe space for experimenting and testing new regulations and for mutual learning the article concludes with call for a new interface and for exploring a 'regulatory sandbox' at the international level.

International legal treaty as a basis for scientific cooperation in the Arctic regions

The paper analyzes international treaties related to the activities of states in the Arctic regions. These treaties constitute the legal basis for scientific cooperation. Due to the threat of climate change and global warming, the preservation of the Arctic ecosystem is becoming one of the urgent tasks for global scientific community. Russia, with its vast Arctic territories, can play a key role in joining the efforts of scientists from different countries. In the modern world, international cooperation is impossible without the established system of international legal treaties. The main instrument of international law for cooperation in the Arctic is the 1982 UN Convention on the Law Of the Sea. The success of scientific events in the Arctic depends on the results of the activities of the Arctic Council and on the effectiveness of activities, including research during the implementation of the Strategy for the Development of the Arctic Zone of the Russian Federation.

Nigerian Separatist Movements, Growing Secession Agitations and the Stand of International Human Rights Law

[enter This paper firstly examines the unabated ongoing agitations for secession from the Federal Republic of Nigeria by the Yoruba and Igbo ethnic majorities who are indigenous to Southern Nigeria but also to some areas of Northern Nigeria. After years of unheeded calls for constitution amendment and restructuring that could heal the maladies of marginalisation, ethnic cleansing, and insecurity masterminded by religious terrorists and jihadists masquerading as herdsmen, the Yoruba and Igbo agitators have now insisted that they are no longer interested in either constitution amendment or restructuring but in having an Oduduwa Republic and a Republic of Biafra respectively. Even the predominantly Christian indigenous peoples of the southern parts of Northern Nigeria, who are popularly called the Middle Belt, have warned that they would never associate with the Muslim Core North if Nigeria breaks up. The reasons that the Southerners and the Middle Belters have alleged for their positions are marginalisation, ethnic cleansing and religious terrorism by some Core Northern ethnic and religious groups. The paper then examines in details the justifiability or otherwise of those secession agitations under international human rights law, some of whose instruments are domesticated by the Federal Government of Nigeria. Such rights as the right to self-determination, indigenous peoples’ rights, right to freedom of association, right to freedom of expression and right to life are considered vis-a-vis the ongoing conflict between some of the agitators and the Nigerian Armed Forces, which have had reasons to deploy airstrikes against suspected hideouts of militiamen agitating for a sovereign Republic of Biafra. The research adopts a doctrinal method and makes use of both primary and secondary sources of data from both the international and municipal forums. It finds out that a popular agitation for self-determination or secession referendum is an inalienable, natural and supranational right under both international law and the Nigerian municipal law and that those agitations must however be conducted peacefully. With South Sudan, Western Sahara, Eritrea, East Timor, Kosovo, Crimea and Brexit, among others, as precedents, it also finds out that it is the duty of the United Nations and other concerned members of the international community under the UN Charter and other relevant treaties to insist on the conduct of a referendum in the Nigerian case to avert an imminent full-blown civil war that could precipitate unprecedented humanitarian disaster in and beyond Nigeria, which is home to one-fifth of Africa’s population. The paper accordingly calls on the UN, African Union, Economic Community of West African States, United States, United Kingdom, European Union and other responsible members of the international community to act fast under the relevant international law instruments, more so as the whole world has now become a global village. Body]

PENOLAKAN PEMBERIAN BANTUAN KEMANUSIAAN DARI PBB OLEH MYANMAR DALAM PRESPEKTIF HUKUM HAK ASASI MANUSIA INTERNASIONAL

The rejection from Myanmar over the United Nation humanitarian aids leads to unnecessary suffering for Rohingya in Myanmar. The rejection are not only for the foods but all kind of aids from the United Nation. The aid rejection violates a number of human rights such as right to life, right to food, and right to health. Although the Myanmar government could decline aids under their rights of sovereignty state, the state must first give sufficient aids to Rohingya. The state could not just cut or decline the humanitarian aids if the state is unwilling and unable to provide the humanitarian aids to the citizen. This paper investigates whether those actions of the Myanmar Government violates the human rights of Rohinya by analyzing the international human rights law instrument with the fact.

Customary Right On The Sea By International Law Of The Sea Perspective Related To The Law Number 5 OF 1960

There are group of communities which still applied the customary law that has an impact to the emerge of the right which is the form consequence of the appliance of customary law, named customary right. The order of customary law ruled that land is handed over by the manager and its use to each of the existing tribes. This custom has been hereditary for a long time. Law Number 5 of 1960 concerning Regulations of Agraria states that the state basically provides protection for the embodiment of customary rights and rights which are similar to the customary rights of customary law communities, as long as in practice there are still conditions for the implementation of these rights. Conception of customary rights as applied in land areas is basically also known by international law of the sea in terms of traditional fisheries rights. However, UNCLOS 1982 on this case does not regulate specifically about the rights of the customary rights on the sea but only regulates the position of the community especially the fishing community to contribute with the government in the management and use of the sea on its territory. This research is juridical normative research that uses a statute approach and conceptual approach. This study aims to find out how the enforcement of customary rights on the sea area through the perspective of international law of the sea considering the sea area is an area whose boundaries must be agreed upon by countries under international law instruments.

Cognitive Phraseological Variations in Terminology of Public International Law and Its Application in Translation into Farsi

For the past twenty years, “phraseology” has been considered a very important topic of study for various specialized languages. The linguistic view that used to see phraseology such as “idiom researches and lexicography classifying various kinds of idiomatic expressions” has changed meaningfully. Nowadays, thanks to these changes, the new view is focused on identifying and classifying phraseology as well as applying them to research in theory. That is why we would do well to try to define new horizons of phraseology in different specialized languages. The language of interest here is the prescriptive and descriptive language of international law instruments. We should consider this language as the normative language of judges, legislators, courts and international lawyers. These practitioners – who use specific types of phraseology and stable linguistic structures –should perhaps adhere to the use of a professional language that conforms to recognized standards of normative rules. This paper, therefore, tries to define the main relations between phraseology studies and IL Latin expressions and their systematic-semantic equivalences in languages with different roots like Farsi.

CREATIVITY AND TRANSNATIONAL COMMERCIAL LAW: FROM CARCHEMISH TO CAPE TOWN

AbstractThis article examines the creative aspects of a range of international commercial law instruments which have in common that they seek to bypass traditional doctrine in order to increase commercial efficiency and ease of transacting. In short, the purpose of the harmonising measure is functional in that it seeks to overcome a serious obstacle to cross-border trade by providing commercially sensible solutions to typical problems regardless whether this disturbs established legal theory, which should always the servant of the law, not its master. Creativity applies not only to the formulation of an instrument but also to its interpretation. Those entrusted with preparing a commentary on the detail of such an instrument are likely to face difficult issues of interpretation which may take years to surface and may only be resolved by a willingness to risk error in order to provide the reader with clear guidance rather than sheltering behind the presentation of alternative interpretations, while at the same time resisting the temptation to ascribe to words in a convention the meaning they would have under one's own national law.At least one of the instruments examined was conceptually flawed; it is mentioned to highlight the danger of over-ambition in delineating the sphere of application of the convention concerned. Undisciplined creativity comes at a cost. Another convention, and a highly successful one, is referred to only to demonstrate the value of creative ambiguity.

OECD acts as instruments of soft international law

A characteristic feature of the modern system of international relations is that the not only the international legal norms, but alsothe rules of soft international law are the regulators, with the constantly growing share of the latter. There is a great variety of conceptsregarding the nature of soft international law in modern doctrine of international law. However, it is indisputable fact that internationalorganizations play significant role in its development. One of such international organizations is the Organization for Economic Cooperationand Development, whose rule-making activities are largely implemented through the adoption of legally non-binding documentsbut at the same time they have a significant impact on the behavior of the international law subjects. The organization unites 36 industrializedcountries. Thus, of the total number of regulations of various legal force adopted or developed under the auspices of the OECDduring the entire period of existence of this international organization, acts of soft international law account for approximately 78 percent. In total, the OECD adopted 454 regulations, including 13 international treaties, 87 decisions, 300 recommendations, 36 declarationsand 18 other legally non-binding international instruments. Recommendations are adopted in accordance with Art. 5, 6 and 7 ofthe OECD Convention and paragraph 18B of the Rules of Procedure of the Organization and are transferred to the Member States forconsideration. So the Member States may, if they deem it appropriate, implement them in their national law. OECD Declarations arelegally optional framework documents establishing the general principles and long-term goals of cooperation between states within theframework of this international organization. In general, declarations are not acts of the OECD within the meaning of Art. 5 of theOECD Convention, but in practice their implementation is monitored by OECD bodies. Apart from recommendations and declarationsOECD also practices the following types of legal non-binding regulations: Arrangement and Understanding which can be described asgentleman’s agreements and also the recommendations of the Development Assistance Committee (DAC) OECD. With all these do -cuments, the OECD regulates international cooperation on a wide range of socio-economic issues, including the fight against corruption,taxation, regional development, environmental protection, finance and investment, trade, industry, social policy, consumer protection,science and education, shipbuilding and transport, energy, etc.