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The 2016 Aleppo Massacre vs. the 1945 Dresden Massacre

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On Friday, October 5th, the U.S. Secretary of State – John Kerry calls for war crimes investigation of Russia’s and Assad governments for the destruction of Syrian city of Aleppo. The western corporative mass media was a very quick, like, for instance, The New York Times, immediately and clearly to accuse the Russian President Vladimir Putin and the Syrian President Bashar al-Assad for alleged war crimes in Syria – the same cliché used by the same propaganda machinery against the Serbs (Srebrenica case from 1995 or Kosovo War from 1999) during the bloody destruction of ex-Yugoslavia (by the U.S. and the E.U.).

However, it is known, at least for the professional historians, that a time distance of at least 50 years is necessary to pass away after the event or the death of a historical person (politician, statesman) in order that the objective investigation of the case will just start. For that reason, we will not deal here with Aleppo case but rather to present after 71 year of the event the case of another war crime that is already verified by the historians – a war crime committed by the liberal democracies which is today accusing Russia and Syria for something that is at least up to now unproved.

The 1945 Dresden Massacre: Who is Responsible?

It is 71-year anniversary of the end of the WWII – the bloodiest and most horrible war ever fought in the human history. The war that caused creation of the UNO in 1945 in order to protect world from similar events in the future – a pan-global political-security organization which first issued legal act was a Charter of the UN which inspired the 1948 Geneva Conventions’ definition of genocide.

The Nüremberg and Tokyo Trials were organized as “The Last Battles” for justice as the first ever global trials for the war criminals and mass murderers including and the top-hierarchy statesmen and politicians. However, 70 years after the WWII the crucial moral question still needs a satisfactory answer: Are all the WWII war criminals faced the justice at the Nüremberg and Tokyo Trials? Or at least those who did not escape from the public life after the war. Here we will present only one of those cases from the WWII which has to be characterized as the genocide followed by the personalities directly responsible for it: The 1945 Dresden Massacre.  

The 1945 Dresden Raid was surely one of the most destructive air-raids during the WWII but in the world history of massive military destructions and the war crimes against humanity too. The main and most destructive air-raid was during the night of February 13th−14th, by the British Bomber Command when 805 bomber military crafts attacked the city of Dresden which up to that time was protected from similar attacks primarily for two reasons:

1.            The city was of an extreme pan-European cultural and historical importance as one of the most beautiful “open-air museum” places in Europe and probably the city with the most beautiful Baroque architectural inheritance in the world.

2.            The lack of the city’s geostrategic, economic and military importance.

The main air-born raid was followed by three more similar raids in daylight but now by the U.S. 8th Air Force. The Allied (in fact, the U.K.−U.S.) Supreme Commander-In-Chief the U.S. a five-star General Dwight D. Eisenhower (1890−1969) was anxious to link the Allied forces with the very advancing Soviet Red Army in the South Germany. For that reason, Dresden suddenly became to be taken into consideration as a point of high strategic importance as a communication center, at least at the eyes of Eisenhower. However, at that time Dresden was known as a city that was overcrowded by up to 500,000 German refugees from the east. For the U.K.−U.S. Supreme Command Headquarters it was clear that any massive air-bombing of the city will cost many human lives and cause a human catastrophe. That was not primarily only on Eisenhower’s conscience to decide to launch massive air-born attacks on Dresden or not as we have not to forget that Eisenhower was only a military commander (a strateg in the Greek) but not and a politician. Unquestionably, the Dresden question in January−February 1945 was and of a political and human nature not only of military one. Therefore, together with a Supreme Commander-In-Chief of the Allied Forces a direct moral and human responsibility for the 1945 Dresden Massacre was on the British PM Winston Churchill (1874−1965) and the U.S. President Franklin D. Roosevelt (1882−1945) too.

These three men, however, finally agreed that the inevitably very high casualties in Dresden might in the end, nevertheless, help to shorten the war, that from a technical point of view was true. During one night and one day of the raids there were over 30,000 buildings destroyed and the numbers of those who were killed in the bombing and the ensuing firestorm are still in dispute among the historians as the estimations go up to 140,000. Here it has to be noticed that if this highest estimation number is going to be true it means that during the 1945 Dresden Massacre were killed more people than in Hiroshima case from August 1945 (around 100,000 that was one third out of total Hiroshima’s pre-bombing population).

One person with direct responsibility for transforming Dresden into the open-air crematorium, as the city was bombed by forbidden flammable bombs for massive destructions (Saddam Hussein was attacked in 2003 by the NATO’s alliance under the alleged and finally false accusation to possess exactly such weapons – WMD) is the “Bomber Harris” – a commander of the British Royal Air-Forces during the Dresden Raid. The “Bomber Harris” was in fact Arthur Travers Harris (1892−1984), a Head of the British Bomber Command in 1942−1945. He was born in Cheltenham, joined the British Royal Flying Corps in 1915, before fighting as a solder in the South-West Africa. He became a Commander of the Fifth Group from 1939 till 1942 when he became the Head of this Group (Bomber Command). The point is that it was exactly Arthur Travers Harris who stubbornly required and defending the massive area bombing of Germany under the idea that such practice will bring the total destruction of Germany (including and civil settlements) that would finally force Germany to surrender without involving of the Allied forces into the full-scale overland military invasion. The crucial point is that this “Bomber Harry’s” strategy received a full support by the British PM Winston Churchill who, therefore, became a politician who blessed and legitimized massive aerial massacres in the legal form of genocide as it was described in the post-WWII Charter of the UNO and other international documents on protection of human rights (ex. the 1949 Geneva Conventions). Nevertheless, there were the “Bomber Harry”, Dwight Eisenhower, Franklin D. Roosevelt and Winston Churchill who transformed the bombing of selected targets as transport systems, industrial areas or oil refineries into the massive aerial destruction of the whole urban settlements with transforming them into the open-air crematoriums like it was done for the first time in history with Dresden – a city with a rare historical heritage (today pre-war Dresden would be on the UNESCO list of protected places of the world’s heritage) but flattened during one night and one day.

This successful practice became very soon followed by the Allied forces in the cases of other German cities, like Würtzburg – a tightly packed medieval housing city that exploded in a firestorm in March 1945 in one night with 90% of destroyed city-space which had no strategic importance. However, a strategic bombing of the urban settlements in the WWII reached its peak by destructions of Hiroshima and Nagasaki under the order by the U.S. President (Democrat) Harry Truman – the “Atomic Harry” (1884−1972) who authorized the dropping of the atomic bombs over these two Japanese cities in order to end the war against Japan without further loss of the U.S. military troops, insisting on unconditional surrender of Japan.

Who Was Missing at the Nüremberg and Tokyo Trials’ Courtrooms?

Surely, one of the most obvious results of the WWII was “its unparalleled destructiveness. It was most visible in the devastated cities of Germany and Japan, where mass aerial bombing, one of the major innovations of the Second World War, proved much more costly to life and buildings than had been the bombing of Spanish cities in the Spanish civil war”. For that and other reasons, we believe that many Allied military and civil top decision-making personalities from the WWII had to face justice at the Nüremberg and Tokyo Trials together with Hitler, Eichmann, Pavelić and many others. However, it is old truth that the winners are writing history and re-writing historiography. Therefore, instead to see Dwight Eisenhower, Winston Churchill, Franklin D. Roosevelt (FDR), Harry Truman or Arthur Travers Harris at the Nüremberg and Tokyo Trials’ courtrooms as indicted on such charges as crimes against humanity and genocide as were the German Nazi defendants, who included NSDAP’s officials and high-ranking military officers along with the German industrialists, lawmen and doctors, we are even 71 year after the WWII reading and learning politically whitewashed and embellished biographies of those war criminals who destroyed Dresden, Hiroshima or Nagasaki as national heroes, freedom fighters and democracy protectors. For instance, in any official biography of Winston Churchill is not written that he is responsible for the ethnic cleansing of the German civilians in 1945 but we know that the British PM clearly promised to the Poles to get after the war ethnically cleansed territory from the Germans.

If the Nüremberg Trial, 1945−1949 was “The Last Battle” for justice, then it was incomplete. Moreover, two the most ardent killers of Dresden – Churchill and Eisenhower were granted after the war by the second premiership and double-term presidency, respectively, in their countries.

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International Law

The Absences of Peace and Security: As a countless hazard to the humankind

David Ceasar Wani

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World peace, or peace on Earth, is the concept of an ideal state of happiness, freedom and peace within and among all people and nations on earth. But the question is raised here do we really have the promising peace in our today’s world? If yes, why we don’t enjoy it? And if the answer is No then why can’t we have it?

When we rise in the morning and listen to the radio or read the newspaper, we are challenged with depressed news: violence, crime, wars, and tragedies and this automatically indicate lack of peace and security. I cannot recall a solitary day without a report of something awful happening anywhere. Even in these modern times it is clear that one’s valuable life is not safe. No former generation has had to experience so much bad news as we face today; this continuous awareness of fear and tension should make any sensitive and compassionate person question seriously the progress of our modem world. It is sarcastic that the more serious problems originate from the more technologically advanced societies. Science and technology have worked wonders in many arenas, but the basic human complications remain.

There is extraordinary literacy, yet this universal education does not appear to have nurtured goodness, but only mental restlessness and dissatisfaction instead. There is no hesitation about the intensification in our material progress and technology, but somehow this is not sufficient as we have not yet prospered in bringing about peace and happiness or in overcoming suffering. We can only conclude that there must be something seriously wrong with our advancement and progress, and if we do not check it in time there could be catastrophic consequences for the future of humanity.

However understanding reasons behind the absences of peace and security in the world and societies is the fundamental lack of communication between people, this is seriously undermines efforts towards world peace. Two arguments bear emphasizing in all these issues. One is that the eradication of war is not just a matter of signing agreements and conventions; it is a complex task requiring a new level of commitment to resolving issues not customarily associated with the pursuit of peace. Based on political agreements alone, the idea of collective security is a fantasy. The other point is that the primary challenge in dealing with issues of peace is to raise the context to the level of principle, as distinct from pure pragmatism. For, in essence, peace stalks from an inner state supported by a spiritual or moral attitude, and it is primarily in evoking this attitude that the possibility of enduring solutions can be found. However there are spiritual principles, or what some call human values, by which solutions can be found for every social problem.

Any well-meant group can in a general sense formulate practical solutions to its problems, but good intentions and practical knowledge are usually not enough. The essential merit of spiritual principle is that it’s not only presents a viewpoint which harmonizes with that which is immanent in human nature, it also encourages an attitude, a dynamic, a will, an aspiration, which facilitate the discovery and implementation of practical measures. Leaders of governments and all in authority would be well served in their efforts to solve problems if they would first seek to identify the principals involved and then be directed by them. Thirdly the primary question to be resolved is how the contemporary world, with its deep-rooted pattern of conflict, can change to a world in which harmony and co-operation will prevail. World order can be founded only on an unshakeable consciousness of the oneness of mankind, a spiritual truth which all the human sciences confirm.

Anthropology, physiology, psychology, recognizes only one human species, although substantially diverse in the subordinate features of life. Acknowledgment of this truth requires abandonment of preconception prejudgment of every kind race, class, color, faith, nation, sex, and degree of material civilization, everything which permits people to consider themselves superior to others. Acceptance of the oneness of mankind is the first essential requirement for reform and administration of the world as one country, the home of humankind. Universal acceptance of this spiritual principle is vital to any successful attempt to establish world peace. It should therefore be comprehensively announced, taught in schools, and constantly asserted in every nation as preparation for the organic change in the structure of society which it implies.

Nevertheless the great Peace towards which people of good will through the centuries have motivated their hearts, of which oracles and writers for countless generations have articulated their vision, and for which from phase to phase the holy scriptures of mankind have continually held the promise, is now at long last within the reach of the nations. World peace is not only possible but inevitable. It is the next phase in the progression of this sphere in the words of one great thinker, concerning the human kind. Whether peace is to be reached only after inconceivable fears caused by humanity’s persistent clinging to old patterns of behavior, or is to be embraced now by an act of consultative will, is the choice before all who inhabit the earth. At this critical juncture when the intractable problems confronting nations have been fused into one common concern for the whole world, failure to stem the tide of conflict and disorder would be unconscionably irresponsible.

In conclusions although the increasing interdependence among nations might be expected to generate more sympathetic cooperation, it is difficult to achieve a spirit of genuine cooperation as long as people remain indifferent to the feelings and happiness of others. When people are motivated mostly by greed and jealousy, it is not possible for them to live in harmony and this is already the absence of peace itself. A spiritual approach may not solve all the political problems that have been caused by the existing self-centered approach, but in the long run it will overcome the very basis of the problems that we face today. On the other hand, if humankind continues to approach its problems considering only temporary expediency, future generations will have to face tremendous difficulties.

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6 things to know about the UN General Assembly

MD Staff

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Every year, in September, global leaders and change-makers gather at United Nations Headquarters in New York for two weeks, to discuss the burning issues of our time and set the global agenda for the year ahead. The 73rd session of the UN General Assembly opened this week and the body’s annual high-level segment – formally known as the ‘general debate’ – begins on Tuesday, 25 September, where every country’s leader gets to address the world.

The busy agenda covers the full spectrum of international issues, including sustainable development, climate change, peace and security, human rights, public health concerns and gender equality.

Here are six things you might not know about the General Assembly (or “the GA” as it’s referred to around the UN’s many hallways) and this year’s high-level week:

1. The UN General Assembly: one country, one vote

Today, the UN is made up of 193 Member States (there were only 51 back when it was created in 1945), 40 per cent of which are lower, or lower-middle income countries. Each Member State has an equal voice, and a single vote. To name only a few of its critical functions, the GA discusses and votes (as necessary if there is no consensus) on a vast array of international policy matters; decides on the UN’s budget, and elects the non-permanent members of the Security Council, together with formally choosing whoever occupies the top job of Secretary-General.

2. This is only the fourth time that the General Assembly is being presided over by a woman

Ahead of each session of the GA, a new President is elected. The President of the 73rd General Assembly is María Fernanda Espinosa, former Minister of Foreign Affairs of Ecuador. Out of 73 Presidents, she’s only the fourth woman and the first Latin American woman ever to hold the office.

3. The general debate this year will focus on global leadership and shared responsibilities

Every year, the President elect, in consultation with Member States and the Secretary-General, chooses a theme for the week of the general debate where Heads of State and Government make statements. The official theme for 2018 is Making the United Nations relevant to all people: global leadership and shared responsibilities for peaceful, equitable and sustainable societies.

In her letter explaining this year’s choice, Assembly President Espinosa invited world leaders to comment on the “continuing relevance” of the UN and “the importance of a shared vision”. The debate will start on 25 September and run for six days.

4. During the general debate, Brazil speaks first, the United States speaks second and then…

The general debate, is not actually a debate. Member States take turns delivering speeches and are given a right of reply when required. Since 1947, the first country to speak has been Brazil because, according to the UN Protocol and Liaison Services, during the Organization’s early years, no one ever wanted to be the first to speak, and Brazil always ended up volunteering to go first. This has now become a tradition.

The second spot goes to the host country (the US), and then the order of speakers follows a complex algorithm reflecting level of representation, geographical balance, the order in which the request to speak was recorded, and other considerations.

Though speakers are kindly asked to keep their statements to under 15 minutes, world leaders often go well beyond that. The longest speech made during the General Assembly, to date, was made by Cuba’s Fidel Castro, who spoke for four and half hours in 1960 (although that wasn’t during the General Debate).

5. A Political Declaration for peace is expected to be adopted in honor of Nelson Mandela

In December 2017, the General Assembly voted to hold a high-level plenary meeting on global peace in honor of the centenary of the birth of South Africa’s first democratically-elected President and world icon, Nelson Mandela. On 24 September, the Nelson Mandela Peace Summit will be taking place, and Member States are expected to adopt a Political Declaration which was drafted throughout the year.

The text declares 2019-2028 the “Nelson Mandela Decade of Peace,” and calls on all world leaders to “make the impossible possible” and “redouble efforts to pursue international peace and security, development and human rights”.

6. The General Assembly will address dozens of other critical global issues and bring them to the forefront of the global geopolitical scene

In addition to the General Debate and other plenary sessions, the weeks of General Assembly include a long list of meetings and side events.

The 73rd session will include a high-level meeting on Financing the 2030 Agenda for Sustainable Development on 24 September; an event to renew international commitment and Action for Peacekeeping on the 25th; a high-level side event on Violence Against LGBTI Individuals, also on 25 September; a high-level event on Ending Tuberculosis on the 26th, a series of humanitarian-themed events including the Yemen and South Sudan responses, and many more.

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China and the SEA in the Asia’s Troubled waters

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Coastal State’s claim over the ocean has been accommodated by the 1982 Law of the Sea Convention (LOSC)  though a quid pro quo arrangement, that is something for something. While Coastal States are given certain degree of sovereignty over their surrounding oceans, yet other states interests should also be respected, which include rights of navigation as well as ocean resources usage rights. While such arrangement can be seen as a ‘package-deals’  offered by the LOSC, however, in practice things would never be as easy as it could be. Complication arising from LOSC’s arrangement varies from geographical condition of both the coastal state and the ocean itself, to broader interests of other states, in this case user maritime states. In addition to this, the problem of maritime delimitation between adjacent states poses another problem.

A never-ended problem related to maritime delimitation as well as access to ocean resources, has been the issue of South-China Sea (SCS). The SCS is a semi-enclosed sea which is surrounded by at least eight States; China, Vietnam, Malaysia, Singapore, Indonesia, Brunei, the Philippines and Taiwan. Such geographic location has made SCS surrounded by the land territory of many states and thus the sovereignty as well as sovereign rights of the surrounding states upon the SCS became complicated. In addition to this, the SCS area consists of four islands, which include Pratas, Macclesfield Bank, Paracels and Spratlys.  Upon such geographical complexion, China declared its claim upon the SCS based on its map known as the nine-dashed lines which encircle almost the entire SCS and within which China claims are China’s historical waters over which it has sovereignty. On the other hand, other littoral states are also claiming sovereignty over small islands in the SCS, namely, Vietnam claims the Spartly Island, while the Philippines and Brunei claims the Kalayan Island Group (KIG).

While the overlapping claims remain, in May 2009 China submit a claim before the United Nations, claiming several islands, which include Spartly, Scarborough Soal, Paracel and others to be included within its territory based on the nine-dashed lines map, combined with occasional references to “historic waters.” In April 2012, the Philippines Navy caught eight Chinas’ fishing vessels in Scarborough Soal waters, that is 220 km off-shore Philippines. Is should be bear in mind that the Scarborough Soal is claimed by several states, namely China, the Philippines and Taiwan. In January 2013 the Philippines submit its objection to the China’s nine-dashed lines to the Permanent Court of Arbitration demanding the cancelation of the nine-dashed line map proposed by China. Permanent Court Arbitration (PCA) resulted on the illegitimate China’s claim, China has asserted that they will not participate on the proceeding and neither obeys the final award of the PCA.

This paper seeks to analyze legal implications upon China’s refusal on PCA’s award to Indonesia’s border security over the waters around Natuna Islands. It further proposed what should be done by Indonesia in anticipating both legal as well as political consequences of such assertive reaction taken by China.

The Philippines vs. China before the Permanent Court of International Arbitration

While conflict between affected littoral states over the South-China Se remains, in 2013 the Philippines brought the case before the Permanent Court of Arbitration. The disputes concerned was on the legal basis of maritime rights and entitlements in the South-China Sea, the status of certain geographic features in the South-China Sea and the lawfulness of certain actions taken by China in the South-China Sea. In brief, basically there are 4 (four) claim submitted by the Philippines before the PCA.[1] Firstly, the Philippines seek advice from the PCA to solve existing disputes over the SCS regarding the rights to occupy the SCS. More specifically, asking PCA to declare that the rights to occupy the SCS should be based on the 1982 Law of the Sea Convention (LOSC) rather than based on ‘historic rights’. Secondly, the Philippines seek advice from PCA to solve maritime delimitation disputes over the Scarborough Shoal and certain resources in Spratly Islands, which has been claimed by both Philippines and China. Thirdly, the Philippines asking the PCA to solve matter related to the validity of China’s claim over the SCS. The Philippines required PCA to deliver award that China has conducted wrong doing upon their actions, as follows:

a.Intervening Philippines’ rights in accordance with the LOSC with regard to fishing, navigation and other natural resources exploration and exploitation as well as the establishment of artificial islands;

b.Has failed to save ocean environment by giving support to China’s fishermen, who has caught the endangered species as well as the use of non-environmental friendly fishing method which lead to the destruction of coral reef ecosystem in the SCS; and

c.Causing the damage on marine environment by the establishment of artificial islands as well as reclamation in the area of seven coral reef areas in Spratly Islands.

Fourth, that China has worsened the dispute by limiting Philippines’ access to Marine Detachment in Second Thomas Shoal.

The SCS case between the Philippines and China, in fact involves various legal aspect. However, crucial aspect that worth to be discussed is the concept of ‘historical rights’ which has been used as legal basis by China in claiming its sovereignty over the SCS. As this turn out, PCA only used the LOSC as valid legal basis in deciding the case. PCA further stated that:

“This arbitration concerned the role of historic rights and the Sumber of maritime entitlements in the South China Sea, the status of certain maritime features and the maritime entitlements they are capable of generating, and the lawfulness of certain actions by China that were alleged by the Philippines to violate the Convention. In light of limitations on compulsory dispute settlement under the Convention, the Tribunal has emphasized that it does not rule on any question of sovereignty over land territory and does not delimit any boundary between the Parties”. [2]

In its decision, PCA was unanimously giving award to the Philippines and declared that “the Tribunal concluded that, to the extent China had historic rights to reSumbers in the waters of the South China Sea, such rights were extinguished to the extent they were incompatible with the exclusive economic zones provided for in the Convention. While the award clearly stated that ‘historical rights’ were incompatible with LOSC, it is interesting to find out the origin of ‘historic claim’ as well as analyzing whether the term ‘historic rights’ and ‘historic waters’ ever exist within both LOSC and other customary international law of the sea.

Figure 1: China’s nine-dashed lines covering vast majority of the SCS areas

Legal Implication on China’s refusal upon PCA Award

Upon PCA award, Chinese Government insists on the position that it will not obey PCA Award due its absence during the trial. This position was stated clearly by China through diplomatic notes titled “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of Philippines”  dated 7th December submitted before the court and Netherlands Government. In sum, the diplomatic notes declared as follows:

“It is the view of China that the Arbitral Tribunal manifestly has no jurisdiction over this arbitration, unilaterally initiated by the Philippines, with regard to disputes between China and the Philippines in the South China Sea.

Firstly, the essence of the subject-matter of the arbitration is the territorial sovereignty over the relevant maritime features in the South China Sea, which is beyond the scope of the Convention and is consequently not concerned with the interpretation or application of the Convention.

Secondly, there is an agreement between China and the Philippines to settle their disputes in the South China Sea by negotiations, as embodied in bilateral instruments and the DOC. Thus the unilateral initiation of the present arbitration by the Philippines has clearly violated international law.

Thirdly, even assuming that the subject-matter of the arbitration did concern the interpretation or application of the Convention, it has been excluded by the 2006 declaration filed by China under Article 298 of the Convention, due to its being an integral part of the dispute of maritime delimitation between the two States.

Fourthly, China has never accepted any compulsory procedures of the Convention with regard to the Philippines’ claims for arbitration. The Arbitral Tribunal shall fully respect the right of the States Parties to the Convention to choose the means of dispute settlement of their own accord, and exercise its competence to decide on its jurisdiction within the confines of the Convention. The initiation of the present arbitration by the Philippines is an abuse of the compulsory dispute settlement procedures under the Convention. There is a solid basis in international law for China’s rejection of and non-participation in the present arbitration.

Furthermore, China added more statement “[t]his shall by no means be interpreted as China’s participation in the arbitral proceeding in any form.”  Upon such situation, Article 288 of the LOSC and Article 9 of LOSC’s Annex VII provide:

a.Article 288 of the Convention provides that “In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.

b.Article 9 of Annex VII to the Convention provides that “If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.”

It is clearly stated that in the situation whether the arbitral have competence in deciding certain case, the authority to decide is the arbitral itself and not the parties. In addition to this, in the absence of one party in the dispute, another party have the right to ask the arbitral to continue the proceeding. Thus, it is submitted that the absence of one party cannot prevent the proceeding to be continued.             On the awards on jurisdiction, PCA considered the application of Article 281 and 282 of the LOSC, which allow a state to apply other dispute resolution method outside the LOSC, if the parties agreed to. Article 281 and 282 of the LOSC read:

“If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure.

If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.”

PCA considered the application of Article 281 dan 282 upon the following documents to find out whether both parties have agreed on other dispute resolution method; (a) the 2002 China–ASEAN Declaration on the Conduct of Parties in the South China Sea (the “DOC”), (b) a series of joint statements issued by the Philippines and China referring to the resolution of disputes through negotiations, (c) the Treaty of Amity and Cooperation in Southeast Asia, and (d) the Convention on Biological Diversity (the “CBD”) .

Nevertheless, PCA refused China’s argument which stated that the Document of Conduct (DOC) agreed between ASEAN and China was a political agreement and did not intended to be a binding agreement which is applicable in disputes resolution method.  Since the DOC is silent on the binding settlement mechanism,  and does not exclude any other dispute resolution method,  it is argued that PCA can decide based on Article 281 and 282 of the LOSC. PCA also finds out the same conclusion relating to Joint Statement mentioned in China Diplomatic Notes.  In relation to the Treaty of Amity and Cooperation in Southeast Asia and the CBD, PCA declared that while both agreements bind parties in the disputes resolution chosen by the parties, there is no binding mechanism within the agreement whatsoever.  To conclude, there is nowhere in those agreements prevent the Philippines to bring the case before the PCA.

As this turn out, PCA reward the Philippines and declared that China’s Claim over the SCS with its nine-dashed lines as illegal and found China to be guilty of conducting illegal maritime activities inside the Philippines’ exclusive economic zone. Upon such award, as stated, China refused to apply the award in any cases. Furthermore, instead of moving away from the disputed area, Chinese military and non-military vessels have regularly undertaken activities to strengthen their de facto control of the area. China seems to undertaken the passive assertiveness over the area and avoiding assertive action which could lead to incident, while also expanding its movement in the SCS.  This condition brings several legal implications to the neighboring adjacent states surrounding the SCS, especially to ASEAN’s member states. This includes an increase of China’s maritime power within the South Asia region, which also effect the South-East Region.

In addition to this, it is assumes that China will strengthen its domestic law in claiming several areas in the SCS. This way, a potent disputes may arise between China and other claimant states, in particular ASEAN’s member states. China aggressive response to the PCA’s award might also bring further legal implication for less affected state like Indonesia. While the SCS dispute does not directly affected Indonesia at the moment, however, it might affected in the near future. As an archipelagic state, Indonesia is entitled to draw archipelagic baselines connecting the outermost point of its outermost islands.  Despite the fact that Indonesia does not claim any of the disputed islands located in the SCS, Indonesian has an outer island group, the Natuna Islands, which are adjacent to the SCS.  These Islands are used as Indonesian basepoints. Due to Indonesia’s sovereignty over the Natuna Islands, consequently Indonesia has the rights over certain areas of waters measures from Natuna’s baselines in accordance with international law. From this baselines Indonesia also entitles various maritime zones established by the LOSC.

This results in the fact that Indonesia has to share such ocean with neighboring states which are also claimant states in the SCS dispute, namely Malaysia and Vietnam.  While agreement has been reached over delineating the continental shelf between states, Exclusive Economic Zones (EEZ) delimitation remains unsolved. If China strengthen its nine-dashed line claim and keep asserting its military power within the area, it is possible that China and Indonesia involve in a disagreement on maritime delimitation around Natuna Islands.

Conclusion

Prior to the PCA’s award, Indonesian President, Mr. Joko Widodo, commented on the matter of the SCS disputes saying that while Indonesia is located considerably near to the SCS, yet Indonesia does not have a direct interest in the SCS. However, recent development shows different position. During President Jokowi’s visit to Natuna Islands recently, it was reminded that in 1996 China has recognized Natuna’s waters as Indonesia’s Exclusive Economic Zone (EEZ).

This paper argued that while the SCS disputes so far does not have direct impact on Indonesia, yet, some areas of Indonesia’s EEZ in Natuna Islands overlap with the China’s nine-dash line. Since China has declared to refuse the award of PCA, Indonesia should make further legal and policy framework in implementing its sovereign rights over its EEZ in Natuna Islands. In addition to this strong political assertion should also be taken in anticipating china’s movement in the SCS through its nine-dash line claim.

  • [1] Read further Kristiyanto, Kristiyanto, Puspitawati, Dhianadan Ardhiansyah, Agis, Konsep Historical Rights dalam SengketaLaut Tiongkok Selatan berdasarkan Putusan PCA Case Number 2013-19 in the Matter of the South China Sea Arbitration between the Philippines and China, Final Essay, Law Faculty, Brawijaya University, 2017
  • [2] Press Release Permanent Court of Arbitration tertanggal 12 July 2016 which giving unanimous award to the Philippines over the SCS disputes.
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Newsdesk15 mins ago

Financing the 2030 Agenda: What is it and why is it important?

António Guterres launches his strategy to finance the 2030 Agenda to put the world on a more sustainable path, this 24 September,...

Religion11 hours ago

Erdogan, Andrew Brunson and Ukrainian Church autocephaly

On Monday, a Turkish news website Dik Gazete published an article Erdogan’s Washington – Brunson – Ukraine game written by...

Tech12 hours ago

Digitisation and autonomous driving to halve costs by 2030

The digitization and automation of processes and delivery vehicles will reduce logistics costs for standardized transport by 47% by 2030,...

South Asia14 hours ago

Democratic transitions in South Asia: Solih led Opposition brings hope to Maldives

Authors:  Srimal Fernando and Mizly Nizar* The 2018 Maldivian Presidential Election and the run up to it was closely watched...

Middle East16 hours ago

Battling it out at the UN: Potholes overshadow US-Iran confrontation

It’s easy to dismiss Iranian denunciations of the United States and its Middle Eastern allies as part of the Islamic...

Defense17 hours ago

Rafale: A national tragedy or just plain stupidity?

In other countries, it would have been a badge of shame for the Government, Bureaucracy, Defense Industry and the citizenry...

South Asia18 hours ago

Pakistan should ‘Speak Softly and Carry a Big Stick’ in response to India

With the 73rd United Nations General Assembly currently underway, tensions in South Asia once again seem to be building up...

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