Legal Reasoning for Legitimation of Child Marriage in West Java: Accommodation of Local Norms at Islamic Courts and the Paradox of Child Protection

West Java ◽

Human Rights Norms ◽

Islamic Courts

Abstract This article discusses challenges posed by the implementation of international human rights law through the case of child marriage in Indonesia. Supporting data consist mostly of court decisions and interviews with judges carried out at three separate Islamic courts in West Java. Results show that the Indonesian pluralistic legal system is structurally organized so as to accommodate human rights norms with religious concerns and customary practices, which therefore provides judges with significant leeway in arbitrating between different types of law, which conflict on the question of child marriage. Left at the discretion of judges, rulings on child marriage cases may result in religious or customary law being favoured over state and international law. Judges do so to ‘protect children’ from social stigma, which is associated with pregnancy and sexual intercourse out of wedlock.

In Lieu of a Conclusion

10.1093/oso/9780198753957.003.0008 ◽

2018 ◽

Author(s):

John Linarelli ◽

Margot E Salomon ◽

Muthucumaraswamy Sornarajah

Keyword(s):

Human Rights ◽

International Law ◽

Global Economy ◽

Human Rights Law ◽

Current State ◽

Neoliberal Capitalism ◽

Transformative Potential ◽

International Economic Law ◽

This chapter recaps the main themes of the volume, ie that the international law of the global economy is in a state of disorder. Claims about the justice, fairness, or benefits of the current state of international law as it relates to the global economy are fanciful. A more credible picture emerges when one considers who is protected, against what, and those relations that are valued and those that are not. Moreover, these claims above all require a suspension of a reflective attitude about what international law actually says and does. When it comes to international economic law, power is masked behind a veil of neutrality when it certainly is not neutral in the interests it protects and offends. As for international human rights law, it overlooks the ways in which it props up extreme capitalism foreclosing the possibility of transformative structural change to neoliberal capitalism. In its most radical areas, human rights norms have been blocked from making demands on the design of the global economy precisely because of their transformative potential. Among the central critiques of international law presented in this book is that international law must be justifiable to those who are subject to it.

Municipal Courts and the International Interpretive Principle: Al-Kateb v Godwin

University of New South Wales Law Journal ◽

10.53637/jfvk4689 ◽

2020 ◽

Vol 43 (3) ◽

Author(s):

Michael Kirby

Keyword(s):

Human Rights ◽

Common Law ◽

Human Rights Law ◽

Global Problems ◽

The Common ◽

International Human ◽

Human Rights Norms ◽

Constitutional Adjudication

This article examines the decision in Al-Kateb v Godwin (2004) 219 CLR 562. It revisits the suggested ‘heresy‘ that international human rights law may influence the interpretation of the Australian Constitution and other legal texts. Accessing universal human rights law, including in constitutional adjudication, was endorsed in the Bangalore Principles on the Domestic Application of International Human Rights Norms 1988. The author suggests that interpreting statutory language in this way is not dissimilar to the common-law principle of interpreting statutes so as to uphold basic rights. But should an analogous approach be permissible in deciding the meaning of constitutional language? Although arguably invoked by the majority of the High Court in Mabo v Queensland [No 2] (1992) 175 CLR 1, in the context of declaring the common-law, so far this approach has not been accepted for constitutional elaboration in Australia. But should this be so in the age of global problems and internationalism?

Human rights obligations of non-state actors in conflict situations

International Review of the Red Cross ◽

10.1017/s1816383106000658 ◽

2006 ◽

Vol 88 (863) ◽

pp. 491-523 ◽

Cited By ~ 34

Author(s):

Andrew Clapham

Keyword(s):

Human Rights ◽

Human Rights Law ◽

Human Rights Abuses ◽

Conflict Situations ◽

Private Military Companies ◽

International Obligations ◽

State Actors ◽

AbstractThe threat to human rights posed by non-state actors is of increasing concern. The author addresses the international obligations of belligerents, national liberation movements and insurgent entities, looks at the growing demands that such armed groups respect human rights norms and considers some of the options for holding private military companies accountable with regard to human rights abuses. The argument developed throughout this article is that all sorts of non-state actors are increasingly expected to comply with principles of international human rights law.

Introduction The customary law of human rights is hiding in plain sight

10.1093/oso/9780192845696.003.0001 ◽

2021 ◽

pp. 1-8

Author(s):

William A. Schabas

Keyword(s):

Human Rights ◽

International Law ◽

Customary Law ◽

Political Rights ◽

Human Rights Law ◽

Customary International Law ◽

Regional Systems ◽

Second World

Many areas of international law developed first as custom and were only subsequently, generally in the course of the twentieth century, subject to codification. Human rights law was different. It was viewed as quintessentially a matter of domestic concern, a subject shrouded in State sovereignty. Only following the Second World War was international human rights law recognised as a source of binding obligations, mainly through the adoption of the Universal Declaration of Human Rights and other instruments of the United Nations as well as the regional systems. Later, jurists began contending that the norms in these instruments might also be customary in nature. They struggled with identifying the two classic elements in the determination of custom, opinio juris and State practice. Most analysis of the content of customary international law was rather perfunctory and also quite conservative, confining itself largely to civil and political rights.

Non-State Armed Groups and the Power to Detain in Non-International Armed Conflict

Israel Law Review ◽

10.1017/s0021223719000207 ◽

2020 ◽

Vol 53 (1) ◽

pp. 3-33

Author(s):

Joshua Joseph Niyo

Keyword(s):

Human Rights ◽

Armed Conflict ◽

Case Law ◽

Customary Law ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Legal Basis ◽

Armed Groups ◽

Critical Feature

The restriction of personal liberty is a critical feature in all conflicts, whether they are of an international character or not. With the increased prevalence of non-international armed conflict and the drastic proliferation of non-state armed groups, it is critical to explore whether such groups can legally detain or intern persons during conflict. This article proposes that there exists a power and a legal basis for armed groups to intern persons for imperative security reasons while engaged in armed conflict. It is suggested that this authorisation exists in the frameworks of both international humanitarian law and international human rights law, as it does for states engaged in such conflicts. It is proposed that such power and legal basis are particularly strong for armed groups in control of territory, and can be gleaned from certain customary law claims, treaty law, as well as some case law on international humanitarian law and human rights. Certain case law of the European Court of Human Rights on detention by de facto non-state entities conceivably reflects a change in traditional thinking on ‘legal’ detention by armed groups.

Like Ancient Beacons: The European Union and the International Criminal Court – Reflections from afar on a Chapter of European Foreign Policy

German Law Journal ◽

10.1017/s2071832200013341 ◽

2004 ◽

Vol 5 (12) ◽

pp. 1449-1467 ◽

Cited By ~ 1

Author(s):

Alexandra Kemmerer

Keyword(s):

Human Rights ◽

International Criminal ◽

Criminal Court ◽

International Criminal Law ◽

European Law ◽

The European Union ◽

Human Rights Law ◽

The Law ◽

That the Law is never frozen in time and space is quite a trivial insight – but one, however, that is nonetheless particularly true for the area of international human rights law and the jurisdiction to see human rights norms respected and enforced. No less is it true for international criminal law and European law. It is, of course, true at the intersection of these three fields of the law as well, exactly the place I intend to explore in this paper. And, as we shall see, poetry, that rarely unveiled subtext of the law, is never steady in its foundations.

Just How Ill-treated Were You? An Investigation of Cross-fertilisation in the Interpretative Approaches to Torture at the European Court of Human Rights and in International Criminal Law

Nordic Journal of International Law ◽

10.1163/15718107-08403006 ◽

2015 ◽

Vol 84 (3) ◽

pp. 482-514 ◽

Cited By ~ 1

Author(s):

Michelle Farrell

Keyword(s):

Human Rights ◽

Criminal Law ◽

Ad Hoc ◽

International Criminal ◽

Criminal Responsibility ◽

Legal Reasoning ◽

International Criminal Law ◽

Human Rights Law ◽

Definition Of

The prohibition on torture in international human rights law seems a fairly straightforward candidate for productive use in international criminal law. The Convention against Torture contains an elaborate definition of torture and human rights institutions have developed substantial jurisprudence on the prohibition and definition of torture. Indeed, the ad hoc Tribunals and the drafters of the Rome Statute have employed the human rights law approach to torture to varying degrees. But the conception of torture reached by human rights bodies is problematic and unsuitable for usage where individual criminal responsibility is sought. It is unsuitable because the human rights law understanding of torture is subjective and victim-derived. Human rights bodies do not scrutinize intent, purpose and perpetration, central aspects of international criminal legal reasoning. The communication on torture between these bodies of law to date shows that cross-fertilisation, without detailed reasoning, is inappropriate - because rights are different to crimes.

International Constitutional Law and Judicial Review of Domestic Human Rights Legislation

ICL Journal ◽

10.1515/icl-2018-0064 ◽

2019 ◽

Vol 13 (2) ◽

pp. 87-118

Author(s):

Laura-Stella Enonchong

Keyword(s):

Human Rights ◽

International Law ◽

Constitutional Law ◽

Human Rights Law ◽

Domestic Sphere ◽

Human Rights Regime ◽

International Human ◽

Abstract This article discusses the idea of international human rights law as ‘constitutional law’. It applies the French concept of Le contrôle de conventionnalité des lois, to demonstrate the constitutional potentials of international human rights law in the domestic sphere. In most monist constitutional systems based on the French civilian model, international law takes precedence over acts of parliament and other domestic legislation. Due in part to that hierarchy, conventionnalité permits the courts to review domestic law for compatibility with international law. From that perspective, international human rights norms can be said to have assumed a ‘para-constitutional’ function. Using two case studies from francophone Africa, this article argues that conventionnalité has the potential to play a significant role in the domestic implementation of international human rights and ultimately contributing to a more comprehensive domestic human rights regime.

International Human Rights Law and Practice in Latin America

International Organization ◽

10.1162/002081800551235 ◽

2000 ◽

Vol 54 (3) ◽

pp. 633-659 ◽

Cited By ~ 134

Author(s):

Ellen L. Lutz ◽

Kathryn Sikkink

Keyword(s):

Human Rights ◽

Latin America ◽

Human Rights Law ◽

International Consensus ◽

State Compliance ◽

International Human ◽

Human Rights Norms ◽

The Right

Human rights practices have improved significantly throughout Latin America during the 1990s, but different degrees of legalization are not the main explanation for these changes. We examine state compliance with three primary norms of international human rights law: the prohibition against torture, the prohibition against disappearance, and the right to democratic governance. Although these norms vary in their degree of obligation, precision, and delegation, states have improved their practices in all three issue-areas. The least amount of change has occurred in the most highly legalized issue-area—the prohibition against torture. We argue that a broad regional norm shift—a “norms cascade”—has led to increased regional and international consensus with respect to an interconnected bundle of human rights norms, including the three discussed in this article. These norms are reinforced by diverse legal and political enforcement mechanisms that help to implement and ensure compliance with them.

Progressivism of Judges in Deciding Applications for Marriage Dispensation

Lambung Mangkurat Law Journal ◽

10.32801/lamlaj.v6i1.208 ◽

2021 ◽

Vol 6 (1) ◽

pp. 41-55

Author(s):

Josua Navirio Pardede ◽

Wigati Taberi Asih ◽

Thogu Ahmad Siregar

Keyword(s):

Human Rights ◽

Conceptual Analysis ◽

Legal Reasoning ◽

Children's Rights ◽

Children’S Rights ◽

Child Marriage ◽

Legal Research ◽

Age Limit ◽

High Level ◽

The Relationship

Regulation on the age limit for a marriage through Act No. 16 of 2019 is based on the spirit of anti-discrimination and protection of children's rights from the adverse effects of child marriage. However, the efforts to complicate and prevent child marriage has yet to have a significant impact on reducing the rate of child marriage in Indonesia. This condition is occurred by the high level of applications for marriage dispensation that are granted by the court. Hence, the construction of the judge's reasoning in observe the relationship between the substance of the law and the reasons for proposing marriage dispensation is one of the most vital and influential elements. The positivism-legism legal reasoning used in understanding of Act No.16 of 2019 is considered to be the cause of the malfunction of the regulation in protecting and guaranteeing children's human rights. By using doctrinal legal research methods, this research produces a conceptual analysis in the form of a meta-juridical critique on positivist legal reasoning which tends to lead to the legism when trying to understand the objectives of Act No. 16 of 2019 and proposes a progressive legal notion as an ideal reasoning framework in producing decisions on applications for dispensation of marriage that have a perspective on the protection and guarantee of children's rights.