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All Journal Brawijaya Law Journal : Journal of Legal Studies
Rahman, Md Mustakimur
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Law, Crime, Criminology & Criminal Justice

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An Assessment of the ‘Lawfulness’ of Use of Force as Dispute Settlement Method Rahman, Md Mustakimur; Tushi, Mohsina Hossain
Brawijaya Law Journal Vol 6, No 1 (2019): Alternative Dispute Resolution
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.01.03

Abstract

Public international law has been developing and working with international humanitarian law & international human rights law together. As it developes, international law is renovating its nature from softer to harder. Although it is a great achievement to see that international (criminal) law has the influence to deal with some particular international criminals, however, the world is still far beyond from its ambition. Sometimes states are behaving very unusual against other states and using force for various reasons. While using force against other states is prohibited under Article 2(4) of the UN Charter. Nevertheless, states can use force under Article 51 if it is necessary for self-defence and only if it is approved by the Security Council under Chapter VII of the UN Charter. However, it is a question of fact that how a state can use force(s) and how it will be legitimate under several international laws? Hague law prohibits the use of new weapons and engine in the war because it seems disproportionate and unnecessary while the UN Charter is silent about the method of using force. Hence, it seems not clear that how a ‘force’ would be measured and will pass the ‘legality’ test. The indicator, thus remain unclear and very subjective.
Fundamental Rights in Times of Emergency: Ataur Rahman vs Muhibur Rahman Revisited Rahman, Md Mustakimur
Brawijaya Law Journal Vol. 5 No. 1 (2018): Culture and Technological Influence in Regulation
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2018.005.01.04

Abstract

This research analyses the Bangladesh's Court Decision on the case of Ataur Rahman vs. Mahibur Rahman with regrad to fundamental rights in times of emergency. It is argued that the decision of the court in Ataur Rahman vs. Muhibur Rahman is erroneous decision. This is because while Article 141C of Bangladesh Constitution gives the Presidnet the power to suspend certain fundamental rights, yet Articles 27 to 35 and 41 of the Constitution cannot be suspended. In Bangladesh's legal system, fundamental human rights are commonly viewed as a set of legal protections. Part III of the Constitution of Bangladesh has confirmed these rights for the citizens of Bangladesh. Some fundamental rights are even universally recognized rights which are contained in the United Nations Universal Declaration of Human Rights (UDHR), the UN International Covenant on Civil and Political Rights (ICCPR), or the UN International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 4 of the ICCPR deals with the state of emergency and Article 4(2) provides a list of non-derogable rights. Such as the right to life, the prohibition of torture, slavery etc. These rights are completely non-derogable in nature and cannot be derogated at all including during a state of emergency. Furthermore the Apex court of Bangladesh tried to justify that the President can derogate any fundamental right during an emergency. Such a proposition is contradicting core parts of our Constitution as well as several international instruments. This research uses normative legal research with statute approach and case approach, especialy analysing Ataur Rahman vs. Muhibur Rahman case.
An Assessment of the 'Lawfulness' of Use of Force as Dispute Settlement Method Rahman, Md Mustakimur; Tushi, Mohsina Hossain
Brawijaya Law Journal Vol. 6 No. 1 (2019): Alternative Dispute Resolution
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.01.03

Abstract

Public international law has been developing and working with international humanitarian law & international human rights law together. As it developes, international law is renovating its nature from softer to harder. Although it is a great achievement to see that international (criminal) law has the influence to deal with some particular international criminals, however, the world is still far beyond from its ambition. Sometimes states are behaving very unusual against other states and using force for various reasons. While using force against other states is prohibited under Article 2(4) of the UN Charter. Nevertheless, states can use force under Article 51 if it is necessary for self-defence and only if it is approved by the Security Council under Chapter VII of the UN Charter. However, it is a question of fact that how a state can use force(s) and how it will be legitimate under several international laws? Hague law prohibits the use of new weapons and engine in the war because it seems disproportionate and unnecessary while the UN Charter is silent about the method of using force. Hence, it seems not clear that how a 'force' would be measured and will pass the 'legality' test. The indicator, thus remain unclear and very subjective.
Co-Authors Tushi, Mohsina Hossain