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Volume II Issue 2 (April 2015)

1. Three Coming Challenges to Indonesia's Death Penalty Regime by Daniel Pascoe of City University Hong Kong School of Law, at 239-80;

Abstract. Indonesia's President, Susilo Bambang Yudhoyono, stepped down on 20 October 2014 after two five-year terms in office. Under Joko Widodo, his successor, outright abolition is considered unlikely for the time being, as Indonesia’s public, government and religious institutions still favor the retention of the death penalty. By the date of his departure from office, President Yudhoyono faced around 40 pending clemency petitions, which he did not rule on, preferring instead to pass them to his successor. Other than hoping that the new President accedes to these requests for clemency, or alternatively the courts proceeding to overturn the death sentence in judicial appeals for those prisoners who still retain the option, abolitionists and defense advocates must consider other legal possibilities for the roughly 140 prisoners currently held under sentence of death in Indonesia.
Accordingly, within the context of a significant political moment for the country, I outline three potential constitutional challenges to Indonesia’s death penalty, capable of being employed by and on behalf of those prisoners who remain on death row. In general, these potential challenges would involve judicial determination on: 1) the length of time that certain prisoners have spent on death row in Indonesia; 2) the procedural changes to clemency petitions brought by Indonesia's revised 2010 clemency law and 3) the relationship between judicial review proceedings ('peninjauan kembali') and clemency petitions. In this article, I outline the legal arguments in favor of each challenge, the categories of prisoners who would stand to benefit, together with foreseeable legal and political hurdles that would need to be overcome for the petitioners.

Keywords: Capital Punishment, Criminal Law, Constitutional Law, Procedural Law, Human Rights.

2. The Yanukovych Letter: Intervention and Authority to Invite in International Law by Tom D. Grant of Wolfson College and the Lauterpacht Centre for International Law at the University of Cambridge, at 281-328;

Abstract. Situations exist in which a State may invite the use of force in its territory by another State. When the sending State purports that the receiving State has invited it, the onus is heavy to demonstrate that the receiving State has in truth adopted a valid invitation. The Russian Federation, among its purported bases for use of force in Ukraine, has referred to a letter from Viktor Yanukovych, a politician who not long before had certainly been the president of Ukraine. The letter called on Russia to intervene in Ukraine with force. If Yanukovych had still been president at the time of the invitation, then it may be asked whether this was one of the exceptional cases in which a purported consent may be invalid as a matter of international law because it was made in manifest violation of an internal law of fundamental importance (Article 46 VCLT). Another question, arising in situations of internal disturbance, is how to determine whether a given individual or organ constitutes the government of the State at all. The Yanukovych letter raises this question too, along with the question of the international law definition of intervention, a valid invitation of a counter-intervention being possible only if there had been a prior similar act.

Keywords: Non-intervention, Intervention by Invitation,  Unilateral Acts, Third State Interests, Annexation, Recognition of Governments. 

3. The Common Law of Geoengineering: Building an Effective Governance for Stratospheric Injections by Edward J. Larson of Pepperdine School of Law, at 329-68;

Abstract. A landmark report by the National Academy of Sciences (NAS) issued in 2015 is the latest in a series of scientific studies to assess the feasibility of geoengineering with stratospheric aerosols to offset anthropogenic global warming and to conclude that they offers a possibly viable supplement or back-up alternative to reducing carbon dioxide emissions. Evidence for this once taboo form of climate intervention relies heavily on the known past effect of major explosive volcanic eruptions to moderate average worldwide temperatures temporarily. In the most extensive study to date, an elite NAS committee now suggests that such processes for adjusting global temperature, while still uncertain, merit further research and field testing. With the benefits of such interventions certain to be unevenly distributed and the risks of them not fully known, every study stresses the need for transparent international governance of stratospheric injections. After examining the roadblocks to such governance, this paper explores the statutory and common law frameworks that could provide some form of stop-gap approaches until the needed regulatory regime emerges. 

Keywords: Climate Change, Global Warming, Environmental Law, Global Governance, 

4. The New Establishment Clause: The Risks of Elevating Historical Practices Above Legal Principles by Kent Sparks of Michigan State University College of Law, at 369-422;

Abstract. While the United States was founded upon the notion of religious equality and freedom, the United States Supreme Court recently took action that poses a serious risk to preserving these foundational values. The Court had previously taken different approaches to Establishment Clause inquiries, but has recently announced a new Establishment Clause standard making practices necessarily constitutional if they traditionally occurred at the time of the American Founding. Indeed, the Court expressly made all other principle-based inquiries irrelevant in cases involving religious historical practices—an unprecedented mandate that fundamentally changes Establishment Clause jurisprudence. 

Examining the true American history, replete with discriminatory practices by the government against minority religions and instances in which the Court recognized the limitations of historical practices in shaping modern constitutional jurisprudence, exposes the dangers of the Court’s adherence to history in shaping the modern Establishment Clause. Without correcting this approach of unquestionably elevating historical practices beyond evaluation by a principle-based inquiry, the meaning of Establishment Clause is subject to the questionable religious historical practices that no longer reflect modern American values—denying the great progress that American society has achieved since its Founding. The Court should employ a presumption of constitutionality if the practice comports with a narrowly construed historical tradition that is rebuttable by showing that the practice violates the Court’s principle-based Establishment Clause test. This rebuttable presumption permits history to continue playing a role, but it restricts its ability to unquestionably determine modern Establishment Clause jurisprudence by subjecting the practice to an independent principle-based inquiry.

Keywords: Separation of Church and State, Freedom of Religion, Constitutional Interpretation, Freedom of Expression.

Abstract. In United States v. Windsor, the Supreme Court considered Section 3 of the Defense of Marriage Act (DOMA) and it carefully avoided consideration of Section 2. By doing so, the Court allowed states to continue ignoring the Full Faith and Credit Clause of the U.S. Constitution as applied to same-sex marriage. Though the Supreme Court has granted certiorari for four cases arriving from the Sixth Circuit under the case name Bourke v. Beshear, the Roberts Court will likely apply its consistent minimalist approach. This means it will not consider issues related to the Full Faith and Credit Clause and will likely only consider the pleadings arguing for Due Process and Equal Protection guarantees of the Fourteenth Amendment that are broad enough to encompass a right to same-sex marriage and interstate recognition of same-sex marriage. Regardless of the ruling in Bourke v. Beshear, the issue of Full Faith and Credit and Section 2 of DOMA remains relevant. If the Court finds for the same-sex couples on the rights in the Fourteenth Amendment, states can still make a colorable argument to refuse recognition of same-sex marriages based on Section 2, despite the ruling in Bourke v. Beshear which may substantively overrule the statute but functionally leave it in place. Alternatively, if the Court finds in favor of the state governments in Bourke v. Beshear, then a concerted effort by same-sex couples for relief under the Full Faith and Credit Clause may be the only remaining course of action. 

Keywords: Same-sex Marriage, Constitutional Law, Due Process of Law, Equality before the Law, Family Law, Human Rights.

IJICL's Comment: Charlie Hebdo

6. All We Need is More Aboutaleb: Editorial Remark by Pranoto Iskandar of Editorial Board, at 461-66;

It is evident that the so-called “the Charlie Hebdo affair” is not only nothing new in essence but also is very likely to repeat itself in the foreseeable future. Moreover, this affair has highlighted a much broader failure on the part of nation-states and Muslim communities to deal with a particular manifestations of violent activism, e.g. the Danish Cartoon incident. To put it bluntly, the question remains: why “visible” Muslims failed to respond in a mature manner? Rather than accepting the cartoon as an exercise of freedom of expression, or at least engaging in a reasoned exchange, the majority of Islamic voices, including self-proclaimed moderate groups, vehemently demanded some curtailment of this hallmark of the individual dignity.Some even went further by flagrantly commented that “[this] idiotic step [deserved] necessary legal measures . . . [therefore, the Organization of Islamic Cooperation] is studying Europe and French laws and other available procedures to be able to take legal action against Charlie Hebdo . . . [and that] OIC will not hesitate to prosecute the French magazine.”

7. Charlie Hebdo and Freedom of Expression by Rhoda E. Howard-Hassmann of Canada Research Chair in International Human Rights & Wilfrid Laurier University, Canada, at 467-80.

In her response, Professor Howard-Hassmann reiterate her unflagging support for freedom of speech as the most fundamental human rights of all. Moreover, she emphasize that "[f]reedom of speech would assist Christians, Muslims, and Falun Gong to practice their religion in China. Freedom of speech helps minority Muslims in Western countries to assert their rights to equal treatment, but also helps minorities within that minority, such as Ahmadi or Ismaeli Muslims." Accordingly, despite she finds the cartoon as "gross, rude, tasteless and offensive," she "have to defend Charlie Hebdo’s right to freedom of expression. The alternative is too dangerous."