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Volume III Issue 2 (April 2016)

1. Islam and the Sharia in the 1993 Mujahideen Draft Constitution of Afghanistan: A Comparative Perspective by Shamshad Pasarlay of University of Washington School of Law, Seattle, at 183-205.

Since 1923, when Afghanistan adopted its first Constitution under the reign of Amir Amanullah Khan, the country has drafted and adopted ten constitutions (including the 1993 draft constitutions prepared by the Sunni and the Shi’ite mujahideen parties). Islam features prominently in all Afghan constitutions, except perhaps in the Interim Constitution of 1980 drafted and adopted when the Soviet Union had occupied Afghanistan. In studying the constitutions of Afghanistan in the 20th century, two factors are apparent. The constitutional process operates in two divergent directions; on one hand, it moves towards initiating modern reforms and on the other hand it preserves the religious and traditional values of the Afghan society. Roughly all Afghan constitutions demonstrate the coexistence of these two trends in an attempt to achieve a balance between the two paradigms. But Afghanistan has always struggled to achieve an acceptable constitutional balance between secular and religious values. At different times, this effort manifested through different provisions, but the commitment to balance remained—even under communist regimes. This desire to balance represents an unusual and distinctly Afghan quality, a quality illustrated by the fact that constitutions at either end of the spectrum ultimately failed. None of the earlier Afghan constitutions, except arguably the 1964 Constitution and the current 2004 Constitution of Afghanistan, have come closer to striking a balance between these interests. 

This article examines the role of Islam and the Sharia (Hanafi Sharia) in the understudied 1993 draft constitution of the Islamic State of Afghanistan (drafted by the then mujahideen government of Afghanistan, but never ratified). It argues that the 1993 draft constitution is unique among Afghan constitutions because it gives Islam and the Sharia a far dominant position in the country’s social and political affairs. While it shows a strong commitment to Islamic principles of law and government, it does not leave room to satisfy its commitments to rule of law and international standards. Through this analysis, this article provides the first work on the 1993 draft constitution of the Islamic State of Afghanistan. It will thus help us see this draft’s uniqueness in terms of its references to Islam, the Sharia and the Hanafi School of jurisprudence in a way that the draft’s authors understood them.

Keywords: Constitutional Law, Constitutional Design, Islamic Law, Comparative Law, Law and Religion, Human Rights.

2. A New Era for The United Nations: The Post-2015 Agenda and The Climate Change Agreement by Jordano Rosales of St. Thomas University School of Law, at 207-38.

For the past 15 years, the United Nations has been setting the stage for this critical point, and now finally, the global stage has been set. The stars have aligned and this year brings us two key agendas to be adopted that will transform the future of international politics, and bring about a drastic transformative approach to sustainable development and climate change alike. The two agendas at the forefront of the United Nations: the Sustainable Development Agenda and the Climate Change Agreement, bring about a critical opportunity for the United Nations, Member States and NGOs to collaborate and not only identify problems and issues plaguing the globe, but to effectively implement mechanisms to mitigate and support the problem areas. However, despite the serendipitous nature of the simultaneous discussions, we must encourage and implore world leaders to ACT and seize the opportunity being presented. 

Going forward, this topic will discuss the decline of the Millennium Development Goals and why they failed, as well as discuss and how the Sustainable Development Goals aim to revitalize the approach to sustainable development and pick up where the MDGs left off. This paper will also consider climate change and its long-term and short-term effect on the countries, which the SDGs are aimed towards aiding, as well as the proposals that are at the forefront of the new Climate Change Agreement. More importantly, this paper seeks to encourage the United Nations to consolidate the SDGs and the CCA in order to better address the global issues we are facing today and it will also address the inadequate resources that the UN and other organizations have due to the seemingly inevitable lack of global funding. 

Keywords: International Environmental Law, Millenium Development Goals, Sustainable Development, Global Governance, Climate Change.

3. Withdrawing Life Support Under the European Convention and the ICCPR: The Right to Life at the End of Life after Lambert v. France by Rebecca Arbelino of Pace University School of Law, at 239-81.

Despite the general controversy surrounding the withdrawal of life support, there has been little discussion of whether the withdrawal of life support is compatible with international human rights law. In the case of Lambert and Others v. France, the European Court of Human Rights became the first international tribunal to substantively address the compatibility of the withdrawal of life support with the right to life under international law. According to the Lambert decision, the withdrawal of life support does not violate the right to life under Article 2 of the European Convention. Meanwhile, the question of whether the withdrawal of life support is compatible with the right to life under Article 6 of the ICCPR has no such definitive resolution. Independent analysis of materials relevant to the ICCPR, however, indicates that the withdrawal of life support does not violate the right to life under Article 6. This paper examines the Lambert decision, clarifies the legal status of the withdrawal of life support under the ICCPR, and seeks to open a scholarly dialogue about the compatibility of the withdrawal of life support with international human rights law.

Keywords: The Right to Life, Euthanasia, Human Rights, Bioethics, Law and Ethics, Comparative Law. 

4. Fahrenheit 451: Burning through the Great Firewall of China by Marina Sechenova of St. Thomas University School of Law, at 283-314.

The Internet has unarguably changed our paradigm of social interaction, perceptions, and norms, and will continue to affect future generations as it evolves. Through content regulation, nations are able to manipulate the way that paradigm shifts and thus, both directly and incidentally, control our future. This paper will assess how the ideologically polar opposites United States and China regulate the Internet, what content both nations regulate, and whether regulation of that content is possible and desirable. Inspired by the recent events at the World Internet Conference (WIC) in Wuzhen, China, in which the Chinese government attempted to show a faux sense of openness, transparency and freedom of their Internet, the topic of Internet content regulation is crucial to all global citizens. This paper will first focus on the birth and infrastructure of the Internet, followed by the intricacies of technical and legal modes of Internet content regulation. It will then present the approaches of several legal theories that have been presented by various scholars who are pro and against Internet content regulation. Lastly, it will evaluate those approaches and present an alternate way of how United States and China should approach Internet content regulation as to minimally overstep their powers and minimize harm to the freedom of expression and privacy of their citizens.

Keywords: Information and Technology Law, Internet Governance, International Law, Cyber Law, Freedom of Information. 

5. Peace and Justice in the Middle East: Balancing International and Local Solutions to the Crises in Syria, Lebanon, and Palestine by Nadia Shamsi, Independent Scholar, at 315-69. 

Countries in the Middle East have experienced continuous political, social, and economic turmoil in the last several decades. The populations of Syria, Lebanon, and Palestine in particular have suffered severe human rights violations. In Syria, the focus has been on the major atrocities committed during the conflicts since March 2011, where civilians have been subject to war crimes and crimes against humanity, in addition to unlawful detentions and torture, enforced disappearances, and attacks involving chemical weapons. In Lebanon, on the other hand, human rights issues stem from the conflicts between Syria and Israel since 1975, and mainly involve arbitrary detentions, enforced disappearances, and targeted assassinations during its periods of political instability. Finally, the situation in Palestine involves a combination of human rights abuses and long-term displacement.  Furthermore, the recent conflicts in Gaza and the West Bank have worsened the situation for the Palestinian people.  Investigations have revealed war crimes and crimes against humanity being committed by Hamas militants and the Israeli Defense Forces. Nevertheless, several transitional justice initiatives can help these countries move from systematic human rights violations to peace and reconciliation.  

While these three nations have interconnecting issues, the local responses in Syria, Lebanon, and Palestine vary greatly according to the magnitude of their conflicts. In order to remedy the human rights abuses in each territory, a personalized transitional justice approach must be taken to ensure that individual issues are addressed. As the situation in Syria is ongoing, transitional justice mechanisms should deal with both the country’s short-term and long-term needs. Short-term emergency assistance should be coupled with measures that focus on stabilizing and providing permanence for individuals who had to flee their homes, in addition to medical, psychological, and social services measures and other comprehensive support to victims. Vetting police, military, and judicial officers who were responsible for the atrocities must be the first long-term step towards reconciliation and fighting impunity, with the heavy support of the international community in maintaining peace. This should eventually lead to the establishment of a truth commission that would investigate such crimes and recommend changes, and eventually focusing a criminal tribunal’s efforts towards prosecuting those accused of violating international human rights in Syria. In Lebanon, on the other hand, efforts should provide a mixture of investigations, prosecutorial initiatives, and reparations. In addition, there should be a focus on establishing a national framework that works with the Special Tribunal for Lebanon to investigate recent human rights abuses that did not fall within the Court’s mandate. Particular attention should be paid to those domestic organizations that failed the Lebanese population in the past; international oversight can prevent mismanagement and restore faith in domestic organizations and the Lebanese government. Finally, in Palestine, a mixture of interim programs and long-term support is necessary to address the wide-ranging concerns that Palestinian victims have, namely restitution and compensation for their displacement. International intervention is necessary in Palestine’s case: specifically, the creation of an inclusive international organization that addresses the long-term needs of refugees that have been ignored for decades. This international organization can fill the gaps left by both the UNCCP and the UNRWA’s limited mandates. 

Additionally, international pressure is necessary to coerce Israel to end its indiscriminate and disproportionate attacks against civilians, as well as deal with the ongoing war crimes and crimes against humanity in Gaza and the West Bank. 

Keywords: Human Rights, Dispute Resolution, International Criminal Law, International Humanitarian Law, International Criminal Responsibilty, International Criminal Tribunals.

IJICL's Note:  
6. The Overlooked Soft Power of Indonesia’s Post-UNCMW by Pranoto Iskandar of the Institute for Migrant Rights and McGill Centre for Human Rights and Legal Pluralism & François Crépeau of McGill University Faculty of Law and McGill Centre for Human Rights and Legal Pluralism, at 371-72.