Hasanuddin Law Review
ISSN / EISSN : 2442-9880 / 2442-9899
Current Publisher: Hasanuddin University, Faculty of Law (10.20956)
Total articles ≅ 201
Latest articles in this journal
Hasanuddin Law Review, Volume 6, pp 66-79; doi:10.20956/halrev.v6i1.2179
As the home of the world’s worst humanitarian crisis, Yemen can be an example to reveal how horrifying the mental health issues in conflicting areas can be. Since 2014, the ongoing conflict in Yemen has been resulting not merely in physical losses and injuries, but also mental catastrophe as its inevitable consequence. This article is a legal research that aims to analyze how mental injuries or psychological damages are being acknowledged as a real impact of armed conflict, to further be considered as a precondition for the reparation at the end of the conflict. The article suggests that the acknowledgment of the mental impacts of armed conflict needs to be taken into concern and consideration, especially from the perspective of hard laws related to the IHL. Besides, the approach of soft law can be applied in attribution with the ongoing conflict in Yemen.
Hasanuddin Law Review, Volume 6, pp 46-55; doi:10.20956/halrev.v6i1.2136
In a recent study, it might not be possible to refer letter of credit fraud cases to arbitration instead of litigation. Alavi’s research suggested that there could be some obstacles, such as obtaining banks’ response and cooperation; the different and high standards of proof of fraud required; and the difficulty in obtaining an injunction. His study answered a question proposed by Blodgett and Mayer as to whether arbitration would ever take place in letter of credit disputes. This short research paper will answer this question, but from a different angle: whether arbitration will provide more appropriate judgments (award) than litigation regarding letter of credit disputes. This question arises from the writer’s observation that, in the past twenty years, different judgments have been issued for similar disputes.
Hasanuddin Law Review, Volume 6, pp 100-108; doi:10.20956/halrev.v6i1.2290
This article aims to examine the correlation between the concept of proper enforcement of the law as stipulated in Article 5 (2) of the 1945 Constitution of Indonesia and the establishment and implementation of government regulation on environment and forestry. This article is a normative legal research with statute, historical, and conceptual approaches. The result shows that proper legal enforcement means two things, namely, establishment and enactment of government regulation by the President and the content of the regulation that does not contradict the law. Failure to comply with the law means the President does not establish or enforce a government regulation as mandated or the content of the regulation is not in line with the law. If the President does form or enforce the implementation of government regulation, this means that the President violates his oath and promise to uphold the Constitution and to serve the nation. If the content of the regulation contradicts with the law, it can be canceled. In this situation, the government needs to realign the content of existing regulations. The ministry involved in legal drafting is called to oversee the content and follow through with revisions. All party involves in the making of law and regulation, such as the People Representatives, the President, or the Minister, is reminded to carefully formulate a government regulation.
Hasanuddin Law Review, Volume 6, pp 25-45; doi:10.20956/halrev.v6i1.1570
The umbrella clause of a Bilateral Investment Treaty (BIT) establishes an obligation for the State parties to respect all commitments entered into by an investment contract between an investor and the host country. It extends the jurisdiction of a BIT forum to the breach-of-contracts matters and changes the nature of a private issue to an international affair. The polemic over the clause's interpretation has become a controversial issue over the years. It comes as a backlash for the Contracting States as a foreign investor could quickly bring an investment problem to an international forum. After more than a decade since its first discussion in the case of SGS v Pakistan, the clause grows to be one of the reasons for many countries to leave or reform their BIT model and changes the trend of international investment protection standard. This article addresses the different episodes of the umbrella clause alongside over the past decade. It projects the debate over the clause’s scope, its development, the governments' action, and their perception over it, and finally, how it changes the standard of investment protection in international treaties.
Hasanuddin Law Review, Volume 6, pp 80-88; doi:10.20956/halrev.v6i1.2268
Free and impartial justice is a characteristic and ideal of a constitutional State. In societies with a free and open judiciary system, individuals are permitted to challenge a judge's verdict, ability to remain impartial, and conduct. This article a doctrinal research with statute, comparative, and conceptual approaches. Meanwhile, data were analyzed descriptively, consisting of quotes. The results show that impartiality legal process (free from pressure, both physical and psychological and impartial) is a characteristic of a constitutional State. In the criminal justice system has received a full principle of free and impartial justice. At the lowest level, this principle in criminal justice is played by the judge as the core apparatus of judicial power, the principle of freedom and impartiality of judges in examining, hearing and deciding cases. The treatment in a crime must always be brought to the application of the principle of impartiality or treatment as referred in the principles of impartiality. Likewise, the principle of impartiality must not only be applied to suspects or defendants, it must be interpreted including the treatment of crown witnesses, victim witnesses and their families and also cannot be ignored about the existence of the community as legal subjects who have an interest in the implementation of public law.
Hasanuddin Law Review, Volume 6, pp 89-99; doi:10.20956/halrev.v6i1.2281
The Makassar City Regional Government formulated a policy that previously carried out Mapping conducted on the less prosperous Coastal community, so departing from the mapping results obtained then formulated a policy as in the development of human resources will be carried out in areas that most need to become a poverty pouch. Local government is the most relevant party to be responsible for increasing the budget. All components, which are responsible for improvement, for the Coastal community, and of course for all parties, who are responsible for improving the welfare of the Coastal community, each related agency provides a budget that is appropriate to the community's needs and the duties and functions of each of the relevant agencies. . In addition, it is in the interests of government policies that harm the Coastal community. The implementation of the reclamation policy which is detrimental to fisheries is of course counterproductive to other policies aimed at the welfare of the Coastal community.
Hasanuddin Law Review, Volume 6, pp 56-65; doi:10.20956/halrev.v6i1.2267
The multi-decade struggle of indigenous communities in Indonesia to gain recognition of their collective rights and the reluctance of the state to act on their demands, now has come to a bright spot. The rights of indigenous peoples in natural resources management –in land and forests– get more recognition as well as protection since the Constitutional Court’s decision on forest law. The recognition of indigenous peoples and their traditional rights must be followed by exclusive rights to control and managing resources in their environment, such as land or forests, as the main source of livelihood for indigenous peoples (lebensraum). Hence, a legal policy is needed from the government that regulates and provides strict and clear recognition criteria for its existence and their rights to natural resources.
Hasanuddin Law Review, Volume 6, pp 1-24; doi:10.20956/halrev.v6i1.1844
This paper discusses the inconsistency of International Centre for Settlement of Investment Disputes (ICSID) awards over an emergency situation in Argentina in 2001. Utilising a doctrinal methodology under Third World Approach to International Law (TWAIL) paradigm, this paper explores the argument set out in Argentina case in the first trial and its appeals, then makes an effort to find out the better and systematic argument for Argentina. Therefore, this paper contributes to factually understanding the different argument from two perspectives in ICSID proceedings which has been contested and herewith proposed a better formulated argument for the future of ICSID awards making by placing economic development in Third World States as a basis of argument. Hence this argument can be used for the similar cases in the ICSID in future.
Hasanuddin Law Review, Volume 5, pp 299-310; doi:10.20956/halrev.v5i3.2022
Judges served in constitutional court have freedom to utilize and elaborate constitutional interpretation method used to examine the law of the Constitution of the Republic of Indonesia year 1945 in accordance to their own understanding. Not only that the constitutional interpretation was not regulated in positive law, judges also have independency in making new law discovery (rechtsvinding). Therefore, the interpretation method used by judges in the constitution court is basically determined by each case displayed at the moment. It means that the future of constitutional interpretation regulated by the judges in constitutional court is depending on the lawsuit reported in judicial review. On the other hand, constitutional interpretation on natural resource has to be based on original (originalist) interpretation rooted by original intent or text stated in the constitution of the republic of Indonesia year 1945, along with document of disagreement on its formulation (memorie van toelichting). Original interpretation is aimed at avoiding the shift at the origin of substantial intention of natural resources management. Nevertheless, non originalis interpretation will remain usable, but it is limited only for technical level, so that natural resources management will stay updated while keeping the basic foundation of natural resources management as firmly stated in constitution.
Hasanuddin Law Review, Volume 5, pp 278-288; doi:10.20956/halrev.v5i3.1735
Digital assets in the broadest sense can be interpreted to cover all electronic assets including social media accounts. Nowadays, besides being used to interaction, social media accounts can also be utilized to gain income or material benefits. In addition, social media accounts are generally handled by influencers with abundant followers. One of the social media used by influencers on the internet is YouTube. The social media actors on YouTube are referred to as YouTubers or content creators. This research is a normative juridical legal research with the descriptive method of analysis. The result of the study shows that YouTube accounts as digital assets in practice can be used as assets in business activities. This is proven by the existence of a YouTuber or content creator who sells his account for charity or commercial purposes. In the future, YouTube accounts can potentially be a digital asset that can be used as a collateral object due to its economic value. Nevertheless, based on the property of law in Indonesia, YouTube social media accounts as a digital asset cannot be qualified as an asset yet, therefore a redefinition, a reconceptualization and a reform of the property of law are considered necessary.