International Law Perspective Research Articles

The South China Sea Disputes in International Law Perspective

The South China Sea issue is getting worse. China's claims overlap with those of other parties such as Vietnam, the Philippines, Malaysia and Brunei. To defend its claim, China is trying to dominate, both in the disputed territory and in multilateral negotiations. In the disputed territory, China seized the area, carried out reclamation, and attacked ships in other countries under various pretexts. Until the Philippines finally brought the dispute to the Permanent Court of Arbitration. The decision of the Permanent Court of Arbitration said that China's claims regarding the nine dash lines were indisputable and had no legal basis. The decision of the Permanent Court of Arbitration. Which was a source of international law was rejected by China. This article aims to describe the validity of the Permanent Court of Arbitration decision if the decision is rejected by one party based on the perspective of international law.

Problematika Penanganan Pengungsi di Indonesia Dari Perspektif Hukum Pengungsi Internasional

A refugee is a person who, due to a well-founded fear of persecution, for reasons of race, religion, nationality, membership of a particular social group and membership of a particular political party, is outside his country of nationality and does not want protection from that country. The refugees, seeking protection in countries that have ratified the 1951 Refugee Convention and the 1967 Protocol or what is often referred to as a third country. This study describes and examines issues, first, regarding the handling of refugee flows in Indonesia according to the perspective of International Refugee Law. Second, Regarding the legal consequences when Indonesia did not ratify the 1951 Refugee Convention agreement and the 1967 Refugee Protocol regarding the status of Refugees to international Refugee law. This study is a descriptive doctrinal legal research. The source used is primary legal material consisting of legal products such as the 1945 Constitution, Laws, International Treaties and other Regulations relevant to Refugee Handling activities. The results of the research show that first, the action of handling refugees in Indonesia from the perspective of international refugee law has been able to realize some of the most important principles of the 1951 Convention and the 1967 protocol on refugee status that is not refoulment, non-expulsion, no differentiate (non discrimination) and also do not commit criminal offenses for refugees who enter Indonesian territory. Secondly, Indonesia as a transit country for asylum seekers and refugees experiences a buildup of refugee flows due to the process of granting an uncertain status of time from UNHCR and moreover, a third country limits the acceptance of refugees. Indonesia did not ratify the 1951 convention and the 1967 protocol and therefore Indonesia did not have the authority to grant refugee status because the granting of status was in the hands of the UNHCR, this was a legal consequence and consequences carried by Indonesia when it did not ratify the 1951 Convention and the 1967 Protocol.
 Keywords: Conventions; Refugees; Indonesia Law.

Examining the legal aspects of Iran's presence in Syria from the perspective of international law

Developments in the Middle East began with the popular movements in Tunisia in 2010. Due to the spread of this movement among the Arab countries, Western countries also tried to enter these developments in order to protect their interests, and the management of the route took some of these movements.Meanwhile, Syria is one of the Arab countries that was involved in some unrest and protests in 2011. With the intervention of Western countries and Saudi Arabia's support for Sunni extremist groups and the formation of a free army in Syria, these conflicts have expanded and led to Murder and bloodshed in this country Iran has tried to play an effective role in the current situation in this country due to its geopolitics and the benefits it has in relation to this country.Therefore, in this article, Iran's interests, the role and impact of this country on the developments in Syria, how to be present in Syria according to the opinion of the international community and according to the rules and regulations of international law are examined.

MISCELÁNEA: BIOLOGÍA SINTÉTICA Y DERECHO INTERNACIONAL: DÉBILES CONSENSOS ANTE DESAFÍOS INMENSOS

The dizzying scientific advances in the field of biology and biotechnology, which we are collectivelly refer to as synthetic biology, have defined new frontiers of knowledge. The latest stage in this process has been the rapid mastery of genome editing techniques, mainly CRISPR/Cas9 tools and systems. This study, from the perspective of international law, deals, on the one hand, with the implications of synthetic biology on human health, thus covering the bioethics and human rights perspective in relation to gene research and gene therapy; and, on the other hand, with the responses of international law to the challenges that gene editing and the development of modified gene drives present for biodiversity. In both dimensions, the weak existing international consensus and the profound interactions in a wide range of sectors of international law, with the presence of diverse international institutional mechanisms, are apparent, which is evidence of a multiple and complex normative crossroads.

The secession of Crimea from Ukraine: an international law perspective

The secession of the Crimean peninsula from Ukraine in 2014 was one of the most talked-about issues by the media, politicians, and decision-makers. The secession worsened relations between the West and Russia thereby, threatening international peace and security. This paper looks at the secession of Crimea from Ukraine from an international law perspective. The goal of the paper is to examine whether Crimea’s secession from Ukraine was legal or illegal under international law. This paper argues that the secession of Crimea from Ukraine in 2014 and its subsequent incorporation into Russia is illegal under international law because Russia intervened in Crimea. On the one hand, the findings of this paper support my central thesis/ argument. On the other hand, the findings of this study revealed that proponents of Crimea’s secession from Ukraine like Russia argue that the secession of Crimea is legal under international law because of international laws on self –determination and because Crimea’s secession from Ukraine is similar to Kosovo’s secession from Serbia.

United States Special 301 – A Deeply Flawed Tool for IPR Regulation?

In this article an International Law and policy perspective is applied to the US Special 301 approach to the management of intellectual property rights of foreign States – with emphasis on the pharmaceutical sector and transfer of technology against the backdrop of US China trade tensions. In particular, the article draws upon the US Special 301 Reports between 2018 to 2020. The paper sets out to take a critical stance of Special 301. This evaluation is intended to equip in particular those who are at the receiving end of the Special 301mechanism. The paper concludes that Special 301 is lacking in informed, expert and empirically based inputs. Above all it lends itself to being hijacked by the narrow agenda of the executive without adequate international, constitutional and due process safeguards for those it is targeted at. US Special 301, Intellectual Property, WTO, Technology Transfer, Pharmaceuticals, TRIPS, China, International Law, Due Process

Social Cognitive Studies, Sociological Theory, and International Law

The image of international legal decision-makers emerging from socio-cognitive studies is significantly different from the prevalent view among diverse actors operating in this field. The socio-cognitive perspective of international law underlines that sensory objects are not 'objectives' or self-evident, and that their internalization in legal decision-makers' minds always involves intermediating mental processes (such as perception, categorization, and interpretation). Limited cognitive resources available to such decision-makers (including military commanders, national decision-makers, and international adjudicators) often lead them to utilize heuristic shortcuts (though occasionally involving some well-known biases). These cognitive processes and heuristics are frequently influenced by socio-cultural patterns (such as norms of attention, stereotypes, or languages) prevailing in the decision-makers' social groups, and often below their conscious level. The increasing awareness to the constraining influence of default socio-cognitive systems on individuals tends to diminish the significance of human agency in real life social situations. On the theoretical level, the latter tendency in socio-cognitive literature supports a shift towards the structural pole of the agency–structure continuum. The formation, interpretation, and implementation of international law interact with diverse socio-cognitive processes. Equipped with insights drawn from socio-cognitive and sociological theoretical literatures, the last section of this chapter focuses on international criminal law, emphasizing its intensified multi-cognitive character and the significant effects of socio-mental patterns on defendants and additional actors (such as adjudicators and prosecutorial staff). This discussion suggests that where it is credibly proven that the particular crime directly involves a distinctive socio-cognitive pattern predominant in the defendant's community, it is desirable that the tribunal considers the defendant's socio-cognitive background as a mitigating or aggravating factor at the sentencing stage.

CONDITIONS, PROBLEMS, AND SOLUTIONS OF ASSOCIATES AND INTERNATIONAL REFUGEES IN INDONESIA IN THE PERSPECTIVE OF NATIONAL LAW AND INTERNATIONAL LAW

This paper discusses that Indonesia which is not a contracting state to the 1951 Refugee Convention and 1967 Protocol, but still respect human rights of asylum seekers and international refugees on the principle of non-refoulement. By being unable to refuse the asylum seekers, it will result in the accumulation of those who have the potential to disturb the security and order of the Indonesian people. This paper aims to identify conditions, problems, and provide solutions for asylum seekers and refugees in Indonesian territory from the perspective of national law and international law. This writing uses a normative research method with a juridical-normative approach, which refers to the prevailing laws and regulations. The solution that can be provided is the establish regulations regarding the handling of asylum seekers and refugees, improving communication with the main destination countries, conduct training for officer in dealing with asylum seekers and refugees, and optimally applying the Global Compact on Refugee concept. The results of this paper indicate that national law and international law can provide protection for asylum seekers and refugees.

LEGAL AND SOCIAL COMPLEXITIES RELATING TO PRACTICE OF ARRANGED AND FORCED MARRIAGES

The practice of forced and/or arranged marriages are reported to be taking place globally. These types of marriages have become gender neutral and can no longer be described only as an issue relating to women. However, what is portrayed is that women normally suffer as reported cases are evidence of that. First world countries where there is a large immigrant community, frown on the practice of forced marriages and arranged marriages. This is a complex issue, because on the one hand, one’s religious, cultural diversity is attacked and on the other hand forced and arranged marriages may violate various provisions of international, regional national human rights instruments. From an international law perspective, one could argue that there is a clear violation of international law. On the other hand, and argument relating to one’s cultural and religious beliefs could also be advanced. Concepts such as culture, religion and gender are deeply embedded in most known religions and communities, therefore, the practice of forced and arranged marriages may not be perceived as violation of any law/s whether international or national. Furthermore, forced and arranged marriages are at times so interrelated that it may be difficult to draw a clear distinction between the two. How do we protect women’s rights while at the same time respecting the cultural diversity of society? This article attempts to add to the existing debate surrounding the social and legal complexities of forced and arranged marriages.

Penerapan Prinsip Persona Non Grata Terhadap Duta Besar Ditinjau Dari Perspektif Hukum Internasional (Studi Kasus Penganiayaan TKI Oleh Duta Besar Arab Saudi Di Jerman)


 
 
 A country needs to make contact with each other based on the national interests of each country related to each other, including among others economic, social, cultural, legal, political, and so on. With constant and continuous association between the nations of the world, it is one of the conditions for the existence of the international community. One form of cooperation between countries in the world is in the form of international relations by placing diplomatic representation in various countries. These representatives have diplomatic immunity and diplomatic immunity privileges that are in accordance with the jurisdiction of the recipient country and civil and criminal immunity for witnesses. The writing of the article entitled "The Application of the Principle of Non-Grata Persona to the Ambassador Judging from the Perspective of International Law" describes how the law on the abuse of diplomatic immunity, how a country's actions against abuse of diplomatic immunity and how to analyze a case of abuse of diplomatic immunity. To answer the problem used normative juridical methods through the use of secondary data, such as books, laws, and research results related to this research topic. Based on the results of the study explained that cases of violations of diplomatic relations related to the personal immunity of diplomatic officials such as cases such as cases of persecution by the Ambassador of Saudi Arabia to Indonesian Workers in Germany are of serious concern. The existence of diplomatic immunity is considered as protection so that perpetrators are not punished. Actions against the abuse of recipient countries of diplomatic immunity may expel or non- grata persona to diplomatic officials, which is stipulated in the Vienna Convention in 1961, because of the right of immunity attached to each diplomatic representative.
 
 

Stripping foreign fighters of their citizenship: International human rights and humanitarian law considerations

AbstractThis article will briefly present a number of international human rights law considerations related to the topic of citizenship stripping of foreign fighters, that is: “individuals, driven mainly by ideology, religion and/or kinship, who leave their country of origin or their country of habitual residence to join a party engaged in an armed conflict”, most notably the conflict in Syria and Iraq. After that, the article will focus on considerations in the context of international humanitarian law, which have been less frequently the subject of academic debate. This contribution concludes that citizenship stripping is not only highly problematic under international human rights law, but also from the perspective of international humanitarian law. The measure – which is likely to constitute cruel, inhuman or degrading treatment or punishment – violates Article 3 Common to the four Geneva Conventions, but it also undermines accountability for international humanitarian law violations already committed and can engender new violations through the non-removal of the suspect from the conflict zone. One of the few positive sides of the connection between the measure and international humanitarian law is that even if nationality is deprived, this will not have an effect on the international humanitarian law obligation to treat that deprived person humanely. In that sense, international humanitarian law provides a welcome – albeit temporary – safety net of decent treatment for people who have become victims of countries’ refusal to take responsibility for their own citizens.

The Criminal Acts Perpetrated during Jammu Massacre, 1947: An International Law Perspective

The Dogra Forces of the erstwhile princely state of Jammu and Kashmir, with the support of the extremist armed groups of Hindus and Sikhs, perpetrated various criminal acts during Jammu Massacre,1947. A huge number of Muslims were killed, raped, maimed, and tortured, and thousands were forced to migrate to Pakistan in critical conditions. The massacre generally and nature, threshold, and scope of the seacts are retrospectively analyzed, to the extent of Genocide Convention, 1948 and Rome Statute of International Criminal Court, 1998, by the review of existing literature. The study suggests few viable and effective legal redressals under international law to the victims of the Jammu Massacre, including refugees and the living generations of the killed persons. The work is somehow useful and relevant for future studies around the multifarious nature and aspects of the criminal acts similar to the acts of Perpetrators involved in the Jammu Genocide.

PRINSIP PENGADILAN YANG ADIL BERDASARKAN YURISPRUDENSI ISLAM DAN HUKUM INTERNASIONAL

A fair trial with respect for human dignity is the most important feature of the measure of Islamic justice and is a guarantee for individuals to enjoy the basic principles of human rights such as freedom and equality. The administration of justice is not only possible because of the existence of substantive laws, but also the executive and formal methods have a prominent and important role to be understood by the current international justice system. However, the weakness of human thought in formulating comprehensive and efficient laws hinders the realization of justice and the achievement of fair court practices. This study intends to identify the principles of fair trial administration from the perspective of Islamic jurisprudence and international law. With a normative juridical approach, this study concludes that the Islamic judicial system includes principles that guarantee the rights of the accused to the highest level, namely the preservation of human dignity.

A Comparative Study of Child Rights from the Perspective of Iranian Law and International Law

A Comparative Study of Child Rights from the Perspective of Iranian Law and International Law

KASHMIR; SENGKETA PERBATASAN INDIA-PAKISTAN DAN ANALISIS HUKUM INTERNASIONAL

Kashmir is a region in South Asian located at the foot of the Himalayas and is nicknamed as paradise. This makes the Kashmir region a target of the surrounding countries, thus becoming a very disturbing conflict in the South Asian region. The research method used in this study is a qualitative method and a literature study that aims to explain the dispute over the Kashmir region in the perspective of international law. Based on the results of the study, the conflict that occurred between India and Pakistan in the struggle for the Kashmir region under international law is a dispute, because the Kashmir region is equally claimed by India and Pakistan. The dispute over the Kashmir region occurred because of two factors, namely religious factors and border factors. Because the Indian and Pakistani conflict against the Kashmir region is an international conflict, the resolution of this conflict also involves the involvement of international organizations namely SAARC and the United Nations. SAARC is an economic and political organization of eight countries in South Asia and is one of the platforms that aims to promote and strengthen collective self-confidence among South Asian countries. SAARC seeks to be a vehicle for peace in India and Pakistan. The United Nations was formed with one of its aims to ensure world peace and security. The two organizations are both looking for solutions to the dispute that occurred in Kashmir.

Expulsion Legitimacy from the Perspective of International and Emirati Law

Abstract Every country has the right to restrict the entry, stay, and deportation of aliens in accordance with international law. However, although States have the right to expel aliens, the expulsion mechanism is subject to domestic and international norms. In the United Arab Emirates, legislation has been enacted to deal with the significant number of aliens residing in or visiting the country. This study clarifies the legality of expulsion and the safeguards stipulated in international and UAE federal law for this procedure, by reviewing the rulings of international and Emirati courts. It concludes that, although international law allows States to regulate foreign affairs in their territory, the mechanism for implementing expulsion and deportation remain subject to legal and judicial guarantees. The paper recommends that deportation decisions be made with caution. It clarifies the weaknesses of the international instruments pertaining to such decisions, and also commends the UAE’s experience in this field.

Legal status of the San Remo Directive from the perspective of public international law

SanRemo Manual, although not a binding document, seeks to provide a contemporary revision of applicable international law on armed conflict at sea. In order to prevent the previous rules from being forgotten and to create different interpretations of these rules, the mentioned directive has tried to revise the rules of naval war law in accordance with the developments of international law. However, the legal status of the SanRemo Manual in international law and its validity among jurists and governments is unclear and there are differences. Purpose of this brief is to assess the validity of the SanRemo Manual from the perspective of customary international law and soft law. Therefore, considering the content of the instruction and considering that instruction has been compiled by legal and naval experts, the author seeks to answer these questions: if SanRemo Manual is considered to be the source of the law of naval armed conflict, in which category does the resources fall, soft law or customary international law? Findings of the study indicate that the content of SanRemo instruction, Addition to having the validity of customary law in the traditional sectors, also has the validity of soft law in the fields that are innovative in the field of naval law. In recent years, SanRemo directive has also been widely cited by countries and international institutions.

Pactele succesorale privite din perspectiva dreptuluii internațional privat

This article aims at an analysis of agreements as to succession from the perspective of private international law. All forms of succession agreements are considered, including mutual wills. The study also contains references to comparative law in the field. The relevant provisions of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession – are analyzed. 650/2012, distinguishing between unilateral and bi- or multilateral pacts, as well as between the admissibility of pacts and issues related to their validity, including binding force and provisions on termination. The article concludes with a functional analysis dedicated to adapting the effects of agreements as to succession, wich are valid according to the hypothetical succession law, given that the lex successionis is hostile to them. More specifically, there is the issue of protecting the interests of force heirs by reference to the law applicable to the succession.

Prison abolition: international human rights law perspectives

ABSTRACT The article examines the compatibility of the international human rights regime with penal abolition as a body of critical social thought as well as a social movement seeking the abolition of prisons. The international human rights regime recognises and legitimates the existence of penitentiary systems while at the same time being noticeably active in areas related to prisoners’ rights and the scrutiny of conditions of detention. This allows in some, admittedly limited, circumstances to pursue and advance alternative frameworks that seek to reduce reliance on the prison system. The increased scrutiny and questioning of the use and legitimacy of detention, even for serious criminal behaviour, provide the normative premises for the abolition of prisons as the dominant form of punishment. However, a human rights approach to imprisonment is not enough from a penal abolitionist standpoint, unless grounded in and supported by a wider social justice programme tackling structural inequalities. In this respect, it is submitted that the multi-facetted international human rights regime provides some legal and normative tools. The IHR regime’s equality dimension and its social, economic, and cultural rights tradition, may contribute to a broad view of justice beyond the narrow and punitive confines of the criminal justice system.

All About That Face (No Trouble?)

The Dutch ban on face-covering garments (BFG) has caused a considerable amount of debate in the Netherlands since its entry into force on August 1, 2019. Questions have been raised as to whether this law is discriminatory towards those who wear full-face veils for religious reasons, as these individuals, almost exclusively women, will be excluded from public life based on their religion. Inspired by this debate, this paper analyzes the Dutch BFG from a regional and international law perspective. More specifically, this paper seeks to analyze Dutch BFG in light of the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Additionally, feminist theories play an auxiliary role in specifying CEDAW obligations from a feminist perspective. While the ban may be justified from the point of view of the European Convention on Human Rights, it is problematic from the perspectives of the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women. Further research should therefore investigate this tension to determine how these frameworks can be reconciled while considering that the standard set by the European Court of Human Rights only provides a minimum level of protection.