International Legal Instruments Research Articles

The use of Language In International Agreements According to The 1969 Vienna Convention And Its Implementation In Indonesian National Law

The use of language in international agreements is very important to establish international cooperation. It is also noteworthy that according to the Indonesian law, the international agreements related to several matters adopted by the government shall be translated to Bahasa Indonesia. However, the terms contained in Indonesian national law, in Bahasa Indonesia, often tend to be different from the meanings contained in international law, such as the 1969 Vienna Convention on the Law of Treaties. Thus, they often have multiple interpretations. As such, the use of language, especially relating to international agreements, can be a trigger for legal disputes. In this regard, using a legal research method by analyzing the international legal instruments and Indonesian national law, this paper digs into the use of language related to the adoption of an international agreement to an Indonesian Law, especially regarding the terms of “ratification,” “accession,” and others. It is argued that there is a difference of perspective within the “adoption of an international agreement” regarding the terms of “ratification” and “accession” under the 1969 Vienna Convention.

The Resurgence of the Unified Arab Investment Agreement and the Organisation for Islamic Cooperation Investment Agreement

Abstract Multilateral investment treaties (MIT s) are international legal instruments whose purpose is to, inter alia, facilitate social and economic cooperation on regional and/or global scales. While there is abundant literature and decisions on MIT s generally, there has been scant analysis of such instruments executed in the Arab and Muslim-majority worlds. This book discusses two such instruments: the Unified Agreement for the Investment of Arab Capital in the Arab States and the Organisation of Islamic Cooperation Agreement for Promotion, Protection and Guarantee of Investments Among Member States. These investment agreements are among the oldest MIT s in the modern world. The UAA was approved at the 11th Arab Summit Conference held in Amman, Jordan, in November 1980. The OIC Agreement was opened for signature on June 1–5, 1981 and entered into force on February 25, 1988. It is only recently, however, that these two long-dormant treaties have acquired special significance. This book provides a comprehensive, critical review of these two treaties that remain to be fully tested and utilized.

Нормативно-правове забезпечення боротьби з незаконними збройними формуваннями в Україні

Нормативно-правове забезпечення боротьби з незаконними збройними формуваннями в Україні

Can Economic Sanctions be Grounds for Exemption under the CISG?

Purpose - This paper studies whether economic sanctions can be used as grounds for a party to an international sales contract to get an exemption if he fails to meet his contractual obligation. Because the answer can differ depending on the governing law of the contract, this study focuses on CISG, the most widely recognized international uniform legal instrument as the governing law of the international sale of goods.
 Design/methodology - This paper focuses on analyzing the conditions to meet before getting an exemption under CISG. For such analysis, this paper examined various scholarly writings, cases, and hypothetical examples reflecting a wide variety of economic sanction measures.
 Findings - The findings of this paper are as follows. The main provision for exemption under CISG is Article 79(1), which provides for an exemption for a party that failed to perform if such failure was caused by an impediment that was uncontrollable, unforeseeable, and unavoidable; either a seller or a buyer may rely on the Article for his non-performance, delay, or defective performance. The Article is applicable not only where the economic sanction caused impossibility of performance but also where it caused hardship. The economic sanction will likely be found to be an uncontrollable impediment; however, it will be relatively more difficult to prove it to be unforeseeable or unavoidable.
 Originality/value - The subject of this paper is whether a party can be exempted from liability under CISG when he fails to perform his contractual obligations due to economic sanctions. Given that this issue is now actually faced by many involved in international trade, it is expected to provide practical help to practitioners and companies alike.

European Divergent Approaches to Protection Claims Based on the Eritrean Military/National Service Programme

Abstract Drawing on data from the United Kingdom, Sweden, Germany, and Switzerland, this article shows that during the process of interpreting the refugee definition and applying it to the context of the Military/National Service Programme (MNSP), the definition is subject to various interpretations and applications. As a result, the treatment of similarly situated Eritrean asylum applications differs from one country to another. The article illustrates that asylum courts from the selected jurisdictions sideline relevant factors that classify the MNSP as slavery by failing to engage normatively with the international law definition of slavery. The findings suggest that a defective incorporation of international legal instruments in the assessment of protection claims based on slavery contributes to conflicting interpretations and applications of the refugee definition and can unduly de-legitimise Eritrean applications for refugee status as ‘unwanted migrants’.

To criminalise or not to criminalise IUU fishing: The EU's choice

The fight against the global phenomenon of illegal, unreported and unregulated (IUU) fishing is carried out through a wide variety of international, regional and national instruments, although its effectiveness is not sufficient in view of the results obtained. The search for the most effective solution is currently under way. Among the possible models to adopt, some countries, such as Norway and Indonesia, have advocated for the criminalisation of IUU fishing. The EU has also opted for a management-based model to combat IUU fishing that relies on administrative sanctions, also leaving its Member States the option of adopting criminal sanctions. Subsequently, in the proposed recast Directive on environmental crime, the EU has not recognised IUU fishing as an either an environmental or autonomous crime, unless it converges with transnational organised crime and other associated crimes in the fisheries sector. The EU has promoted its model in non-member countries, and has contributed towards paving the way to a level playing field which comprises the most authoritative set of international legal instruments on IUU fishing, both soft and hard, established by the UN and FAO. Nevertheless, discussions are ongoing on the need to reform EU legal instruments to better contribute to the sustainable use of marine resources in the 21st century in line with the UN Sustainable Development Goals as foreseen in the EU Green Deal.

Protection of Uighur Muslim in Human Rights Aspect in International Law Perspective

Human rights are fundamental individual rights, these rights are the right to live in the political, economic, social, and cultural fields. Amid efforts to maximize the fulfillment of human rights, both nationally and internationally, there is a conflict in China between the Chinese government and Uighur Muslims which has resulted in human rights violations. This study aims to look at the regulation of human rights protection from the point of view of national law, namely the Law of the People's Republic of China, and from the point of view of International Law. This type of research is a literature study, the approach used is normative, the data collection technique is through data collection in the form of readings such as journals, books, and the internet, the results of which are directly analyzed through qualitative methods. The results of this study indicate that the protection of human rights is stated in the Chinese Constitution but its implementation is very difficult because it is contrary to China's use of communism, while the protection of human rights from international law is very possible because it is regulated in an international legal instrument, namely the Universal Declaration of Human Rights. , 1949 Geneva Conventions and the Rome Statute.

Harnessing African Free Trade Area and WTO for Clean Energy Transition

Abstract In 2018, the African Union adopted the Agreement on the African Continental Free Trade Area (AfCFTA) with the aim of creating a common market for goods and services that would serve over 1.3 billion people in Africa. This is a paradigm shift towards a deeper continental integration in Africa whereby AfCFTA would be one of the biggest multilateral trading areas in the world. Although AfCFTA pursues sustainable development goals that embed reducing carbon dioxide emissions in line with international legal instruments on sustainability which applies to Member States of the WTO too, the legal provisions of AfCFTA and WTO that link trade and CET appear rather weak. This article provides a comparative analysis of AfCFTA and WTO legal frameworks with a focus on relationships, challenges and opportunities that incentivise clean energy transition (CET) as part of their sustainability agenda. The article contributes to the discourse on the interplay between regional trade and global trade laws in relation to climate change and sustainable development. As no previous study has compared the legal dynamics of the WTO and AfCFTA in relation to CET, the article provides a novel contribution to the efforts of unlocking the development potential of AfCFTA while enhancing global and regional multilateral trading systems.

Involuntary Psychiatric Admission: Arbitrary Deprivation of Liberty or a Human Right?

In 2008 Brazil ratified The United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) an international legal instrument specifically tailored to stipulate the rights of persons with disabilities and include those with serious mental disorders. United Nations Committee set up to monitor the implementation of the Convention (CRPD Committee) lead to an insistence that involuntary detention and treatment of people with mental health (or “psychosocial”) disabilities are prohibited. There is a debate about this topic that poses an impossibility of involuntary psychiatric admission in hospital.

Towards the Draſt Declaration on the Right of Peoples to Self-Determination and Forms of its Realization

INTRODUCTION. This article elaborates on the idea of Professor Y.A.Reshetov, who published in the Moscow Journal of International Law a draſt convention on the right of peoples to self-determination. The draſt convention has been one of the first attempts to draw attention to the problem of the limits of self-determination in plural States, the forms of implementation and the main subjects of the right of self-determination. The purpose of the study is to develop the relevant ideas of Y.A.R.Reshetov, as well as to introduce new ideas, taking into account the evolving processes of realization of the right to self-determination in the modern world.MATERIAL AND METHODS. The study is based on international legal instruments, advisory opinions of the International Court of Justice, the jurisprudence of other international legal bodies and contemporary research of domestic and foreign scholars. The methods used in this study are: analysis, synthesis, induction, deduction, comparison, classification, systematization, prediction, as well as comparative and formal legal approaches.RESEARCH RESULTS. The territorial disputes resulting from ethnic, regional and local conflicts are among the most pressing problems in international relations. For any multi-ethnic State, including Russia, it is extremely important to have a genuine scientific awareness of the principle of equality and self-determination of peoples, adequate forms of its implementation, and structuring ethnic identity in the system of civil identity. Exploring for well-founded solutions to the matters involved will help consolidate world public opinion and ultimately develop an appropriate international legal mechanism under the auspices of the United Nations.DISCUSION AND CONCLUSION. The articles analyses the evolution of the idea of self-determination of peoples, the place of the principle of equal rights and self-determination of peoples in the system of basic principles of international law. The range of subjects of the right to self-determination, the specifics of secession, institutions of uti possidetis juris, and of delays in secession, as well as questions on the forms and criteria of self-determination of the principal subjects and the phenomenon of «unrecognized States», author draſted the relevant Declaration on the Right of Peoples to Self-determination and the Modalities for its Implementation.

Surrogacy regulation: Trends in international and Russian law

Surrogacy regulation: Trends in international and Russian law

ASEAN’s Role in Protecting Migrant Workers’ Rights During the Covid-19 Pandemic

This paper focuses on ASEAN’s efforts as a regional organization to protect the rights of migrant workers in the Covid-19 pandemic situation. The protection of the rights of migrant workers is part of the protection of human rights regulated in various international legal instruments as well as within the ASEAN framework, especially in the ASEAN Consensus on the Promotion and Protection of the Rights of Migrant Workers (ACPPRMW). Although responding quickly to the impact of the Covid-19 pandemic on the economic and health sectors, ASEAN’s response and efforts in protecting the rights of migrant workers during the Covid-19 pandemic were late and ineffective. This is also an illustration of the ineffective implementation of the system and mechanism for the protection of migrant workers in ASEAN as well as the implementation of other ASEAN human rights legal instruments, due to the main principle that is firmly held by ASEAN, namely the non-interference principle.

International Legal Instruments on the Use of Outer Space in the Global Agenda for Sustainable Development

Key tracks in the evolution of international law on outer space are identifi ed and reviewed in light of the United Nations Sustainable Development Goals. It is suggested that the United Nations sustainable development agenda obliges states to consider the impact of their policies on progress towards the UN Sustainable Development Goals. Priorities for improvements in international law are defi ned, including space litter, the militarisation of outer space, and the protection of the environment of the moon and other space bodies. The probabilities of specifi c scenarios are assessed in light of the prospects for negotiating international treaties on the use of outer space. The author explains the need for innovative international legal solutions that do not impact the foundations of international law.

Uncertainty of the Right to Health in Indonesia during Covid-19 Pandemic

The Covid-19 pandemic has limited human movement across the world. However, interest in maintaining and fighting for justice, human rights (HAM), and democracy as the basis for building the civilization of the nation and state must not be weakened. On the contrary, it must be more strongly upheld and enforced. The government, as the primary duty bearer, is obliged to respect, protect, and fulfill the human rights of every citizen, as stated in numerous international and national legal instruments, including the constitution of the Republic of Indonesia (UUD 1945). This study uses a library research method and statutory approach. The author found that the government is still relatively lenient in handling the COVID-19 pandemic. Accordingly, this raises concerns about the uncertainty of the health environment in Indonesia. This violates Article 28 H paragraph (1) of the 1945 Constitution, which states that every person has the right to live in physical and spiritual prosperity, to have a place to live, to have a good and healthy living environment, and the right to obtain health services. The government should issue a stricter policy in dealing with this problem.

THE EXERCISE OF POLICE POWERS AND ENFORCEMENT OF INTERNATIONAL HUMAN RIGHTS NORMS IN NIGERIA: AN APPRAISAL

The police have the duty of prevention, investigation and prosecution of crime in the society. In the course of their duties, conflicts arise between the law officers and the civilians. In Nigeria, the police are known for the abuse of legal processes and the right of the citizens often culminating at excessive use of force, unlawful detention and in extreme cases which is rampant extra-judicial killing. This paper gave an exposition of some international legal instruments and standards applicable to law enforcement and how they help curtail abuse of the citizens’ right. The paper found that there is gross abuse of human rights in the course of the duty of the police in Nigeria. It was noted that the police have an obligation to observe, ensure compliance and implementation of these international human rights norms. It was recommended that there should be training and retraining of the police in Nigeria especially in forensic and technologically driven investigation and prevention of crime. Furthermore, corruption in the Nigerian police should be curbed by giving more incentives like salary increase to the police. The paper concluded that implementation of these recommendations will improve police human right observance in Nigeria.

International Standards as a Conceptual Framework for Improving Consumer Protection

Issues in the interpretation of the international standards on individual consumer protection are considered. A functional consumer protection framework is a key aspect of economic security of states and regional economic alliances. Consumer protection is also evolving to respond to the new threats and challenges of the global economic crisis. Implementing the international standards on consumer protection in the national legal framework and regional treaties are viewed as a matter of urgency. From a review of a selection of international legal instruments, the author identifi es several systemic trends in the evolution of consumer protection standards, including an emphasis on the environment and sustainable consumption, and facilitation of e-trade as a mechanism for strengthening the economic security of states and regions.

Roles of the United Nations and International Legal Instruments in the Protection of Women’s Rights

Discrimination and violence against women have become widespread and multi-facetted. Discrimination against women and girls are observable in many spheres of life including social, cultural, economic, health, education, in representation in public life and in determination of nationality. Women and girls suffer violence than their male counterparts at home as well as during armed conflicts, internal or international. In keeping with preamble of the Charter of the United Nations (UN) 1945 to ‘reaffirm faith in fundamental human rights, in the dignity, and worth of the human person, in the equal rights of men and women…’ the organisation has over the years put in place measures to tackle the issues of discrimination and violence against women in order to protect the rights of women. Notable among such measures is the adoption of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the establishment of a committee of experts to monitor the implementation of the Convention in the members States. The aim of this article is to discuss the role of the UN in the elimination of discrimination and violence against women. It will also appraise relevant international instruments designed to protect the rights of women globally and at regional levels. The study adopts the doctrinal research method by with legal instruments and case law as the primary sources of data, and textbooks, journal articles and the Internet as the secondary sources of data.

The Legal Framework for the Protection of Turtles as Protected Animals from Culinary Business Production

Turtles are protected animals, regulated both in international agreements and by Government Regulation of the Republic of Indonesia Number 7 of 1999 on the Preservation of Plant and Animal Species. Six of seven species of turtles that still exist are in Indonesia. Protection of these animals has to deal with conditions in which their meat and eggs are still used as culinary products. Consumption of turtles is still a culture of society. The high demand for dishes made from turtles causes them to be traded illegally. In this study, the legal framework for the protection of turtles as endangered species and turtle ecotourism policies based on local wisdom will be studied. This research is empirical legal research that examines the application of the legal framework to protect turtles as protected endangered species. This research also examines the legal culture of the people who actually use turtles as a culinary business product. The data used consists of primary and secondary data. Primary data comes from interviews with criminal law experts, while secondary data consists of primary and secondary legal materials. The legal materials are collected through literature study. The legal framework for protecting turtles as endangered species is carried out by bringing this issue into international forums. A number of international agreements have been reached by countries to protect endangered animals. The Union for Conservation of Nature and Natural Resources (IUCN) even issued a Red List and put turtles on the list. The Indonesian government ratifies international legal instruments and develops policies at the national level to protect sea turtles. In addition, the government also raises public awareness not to consume turtles with a local wisdom approach

Crafting a Right to Water: A Jurisprudential Analysis

The Supreme Court has often reiterated that right to water is a part and parcel of a right to life. Thejudicialization of right to water has raised fundamental questions about the feasibility of culling out ajusticiable fundamental right to water from a social right. While the Jal Boards regulate water supply,sewerage and drainage there are other statutory bodies allocated with the task of maintenance of waterbodies. The water policy prioritizes amongst the various uses of water. The common law principles do notserve the present societal needs. Questions of ownership give conflicting results. Different norms applicable,to surface water and underground water, lead to conflicts. Numerous international legal instruments priorto the General Comment number 15, had not specifically mentioned a right to water. Whether the omissionwas inadvertent - being obvious not requiring specific mention, or implicit and commensurate within theterm ‘food’ or as part of customary international law, or was it because it was not a pressing concern then,needs clarity. While drastic problems call for immediate actions in the form of laws, it is necessary that thelaws be consistent with the nature of the subject matter it seeks to regulate. This research paper addressesthe problem of identifying the various provisioning requirements and feasibility, in case the right to wateris considered as a human right, or granted as a fundamental right or a statutory right. It seeks to comparethe implications arising out of holding a right to water as a human right, a fundamental right or a statutoryright. While the feasibility of water as a fundamental right is in itself a question, to treat it as a human rightleaves it to the whims of the State with only small incremental developments as a result.

Mediation and restorative approach in resolving criminal law conflicts

A number of international legal instruments is highly recommended to upgrade the national system of conflict resolution in the sphere of criminal law with the view of the importance of not only traditional prohibitive, punitive and preventive, but, first of all, restorative tasks. Such modernization, which implies a tran-sition from the strategy of “combating crime” to strategies of “reducing the harm from crime”, requires a combination of methods of “punitive” and “restorative justice” in order to most effectively solve the problems of compensation for the harm caused to the victim and restoring his normal life and disturbed public order, as well as correcting and re-socializing the person who committed the crime in order to avoid repetition of criminal activity. But in order for such a transformation of the paradigm of criminal law policy to be organic and natural rather than artificially implanted, it is necessary that certain socio-political and legal factors that determine the formation and development of mediation and other restorative justice programs in the field of criminal law should develop in the Russian reality. For the first time in Russian science, the article, poses and investigates the problem of socio-legal laws of the concept of restorative justice. The conducted research contributes to identifying and formulating a set of laws characterizing the formation and development of the restorative approach; this allows on the basis of identified patterns to assess the current state of its socio-legal prerequisites in Russia.