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Volume III Issue 1 (January 2016)

1. Constitutionalizing Human Rights Universality in Nonconstitutional Legal System: Decoding Human Rights Brouhaha in Indonesia by Pranoto Iskandar of the Institute for Migrant Rights and McGill Centre for Human Rights & Legal Pluralism, at 1-42; 

Abstract. Not long after 1998 political reform (reformasi), there was a high hope that Indonesia would become a model of democracy for the non-western world. Time and again, however, Indonesia has made a series of regressive decisions. Supposedly, the focus of any genuinely new efforts of reform must be aimed toward a liberal democracy, but Indonesia's reformasi has moved without any overarching goals. As far as Indonesia is concerned, it has pursued an unusual trajectory in its democracy-building enterprise. Aside from the fact that this model is inherently flawed, it is, in fact, praised as a successful in sustaining nominal democracy. As it stands, Indonesia's erratic pursuit of democracy has introduced many illiberal elements into its new legal structure, albeit in a democratic way. As a response, this article attempts to unravel some of the most salient features of Indonesia's current legal discourse. In the process, it critically examines the Indonesian model of constitutionalism and situates it in the international legal context. This way of seeing is aimed at disentangling the exceptionality of Indonesia's democratic legal system from the traditional insular model that predominates Indonesian legal scholarship. Against all odds, this article finds that this legal confusion can scarcely be separated from the lack of discussion at the domestic level about international law.
Keywords: Legal Reform, Comparative Law, Constitutional Law, Human Rights, Non-western Legal Theory. 

2. Whistleblowing and Criminal Proceedings in Spain: Roma Traditoribus Non Praemiat by Juan Carlos Ortiz Pradillo of Universidad de Castilla-La Mancha, 43-76;

Abstract. Whistleblowers play a key role when it comes to reporting corruption, fraud and mismanagement in which both public administrations and private companies may be involved. However, there are not any institutions in Spain to regulate, promote and duly protect the whistleblower who decides to collaborate with the legal system and provide efficient information to the investigation of the crimes committed, not only within criminal organisations or public administrations, but also within companies and the relationships between them and public administrations. This study is focused on analysing what type of procedural handling should be applied into the Spanish criminal system, to the repentant offender who decides to collaborate with the authorities and helps to obtain evidence, because there is not a legal framework of whistleblowers in Spain. This paper discusses also that some procedural figures as the anonymous confidant, the protected witness or the repentant offender are not sufficient or effective to promote whistleblowing. Finally, it review the advantages and drawbacks of the inclusion of the discretionary prosecution principle in the Spanish criminal procedure, by promoting benefits (i.e., the immunity) for those who collaborate with the legal system.

Keywords: Corporate Crime, Criminal Proceedings, Criminal Justice, Spain, Whistleblowing.

3. The Pro Homine Principle as an Enshrined Feature of International Human Rights Law by Valerio Mazzuoli of Federal University of Mato Grosso, Brazil, & Dilton Ribeiro of Independent Scholar, at 77-100;

Abstract.  After the Second World War, human rights moved away from the margins and became an important aspect of international law. This new paradigm was based on human person at the centre of international human rights law. That is, instead of the state-centric Westphalian system, international human rights law is based on the human person as the source and end of law. Human rights instruments are created, interpreted and applied taking into account the human person. This pro homine framework flows from human rights instruments and was created by states themselves. The Universal Declaration of Human Rights and the American Declaration of the Rights and Duties of Man established this pro homine framework, which was later crystalized by following international treaties and strengthened by decisions from the European Court of Human Rights, the Inter-American Court of Human Rights and the International Court of Justice.

Keywords: Human Rights, International Legal Subject, State Responsibility.  


Abstract. Many nations have developed weapons system with an advanced capacity for identifying targets and for making their own decisions about when to fire. These systems include both anti-missile defense systems and border-patrolling robotic sentries. As weapons technology becomes more sophisticated, and as computers continue to progress rapidly in their capacity for processing and analyzing information, it seems more and more possible that a country could develop something like a “killer robot,” a machine with the power to kill and the independent capacity to identify targets and to decide when to engage them. This prospect creates the possibility of a real-life version of the killer robots portrayed in the series of Terminator films, starring Arnold Schwarzenegger.
Weapon systems capable of some level of autonomous decision-making have the potential to transform armed conflict, not only in a technical and strategic sense, but also in a legal one. The existing international law of armed conflict and principles of international human rights impose significant restrictions on how weapons can be used. And a foundational premise of that international legal regime is the presumption that there is a human being with the capacity for moral judgment in control of the weapon.
There is an emerging debate about whether the existing structure of international law can be adapted to the inclusion of autonomous weapon systems.  Some participants in this debate contend that autonomous weapon systems cannot be deployed without destroying the human moral agency that is required for compliance with international law. Others contend that autonomous weapon systems differ from other kinds of weapons only in small details, not in essential moral character, and that they can be effectively regulated just like any other weapon.
This paper examines the current state of development of autonomous weapon systems, the existing international law regulating the use of weapons in armed conflict, and the debate about the risks and benefits of integrating autonomous weapon systems into contemporary warfare. On the basis of this examination, it considers what is essential for continued compliance with the guiding principles of international law and about what methods may be adapted to assure that this law evolves with weapons technology. This paper concludes that autonomous weapon systems can only conform to the principles of international law if they are ultimately guided in some respect by a human being who can be morally accountable for how the weapon is used.
Keywords: Law of Wars, Law and Technology, Law and Ethics, International Criminal Responsibility, International Law.

5. Towards A Professionalized Judiciary: An Insight into the Ongoing Chinese Reform on Judicial Selection in Comparison with France by Mengyu Zhu of George Washington University School of Law, at 127-46;

Abstract. In late 2014, the Chinese government called on a thorough judicial reform, and dedicated significant effort in reorganizing the judicial selection process. The approach of this reform may be comparable to the French pattern of judicial selection, a highly professionalized, independent civil service mode. This article examines several crucial aspects of the Chinese judicial selection reform in comparison with its French precedent, including the recruitment process of judges, their pre-service professional training, their advancement in the career path and their sanctions, and also observes certain weak points of the ongoing reform. 
Keywords: Law Reform, Comparative Law, Communist Legal System, Developing Countries, Eastern Law.

6. Making Sense of Judicial Remedies in Saudi Arabia: An Insider View by Saud Alhassan Saud Abdulaziz Al Saud of Ministry of Interior Affairs, Saudi Arabia, & KoGuan Law School Shanghai Jiao Tong University, China, at 147-82; 

Abstract. In the United States legal system, judges have a number of remedies that they can resort to when compared to judges in Islamic law. The reason that Islamic law judges have less remedies could be due to the fact that remedies must satisfy the Islamic doctrines. This is not the same case in regards to the remedies that are provided to Judges under American Law. It is, therefore, quite imperative that Muslims are guided by shari’a (Islamic law) in their contractual remedies. This reliance on religious doctrines has made it quite difficult to enter into a contractual relationship between a Muslim and a non-Muslim. However, these contracts are executed; the non-Muslim party must be compliant to all the remedies that are available if one of the parties breaches the contract.
According to this model, Muslims believe in the notion of trust between the contracting parties. They expect the person they are dealing with to be a trustworthy person who will, therefore, perform his or her contractual obligations without breaching the contract, and without any failure. As a consequence, the person who fails to follow the terms of the contract is deemed to have not only breached the contract terms, but the trust of the other party as well. This is not similar to contracts executed under American Law, whereby a person is only held responsible for the breach of contract. In addition to that, Muslim communities may have guarantors when entering into contracts.
In this paper I comment on remedies available to judges under the Saudi Arabian/Islamic legal system in comparison to the American/common law judges. Through this analysis I will prove that although the origin of the law may differ, remedies in contractual agreements available to judges within both legal systems are very similar with a presence of very slight differences. This paper aims to bridge the gap between both legal systems, and dispel the fear of being bound to the rules of Islamic law in contractual agreements. To date, this may be one of a very limited number of articles addressing this topic. This paper could prove to be very important in providing a clear understanding of international contractual agreements with Islamic law countries, and/or parties within Islamic law countries. 
Keywords: Contract Law, Islamic Legal Remedies, Comparative Law, Saudi Arabia Legal System, Islamic Judge.