Padjadjaran Journal of International Law
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ENSURING ACCOUNTABILITY FOR THE JUNTA CRIMES AGAINST HUMANITY VIOLATION IN MYANMAR: USAGE OF THE ROME STATUTE AND POSSIBLE INVOLVEMENT OF THE UNSC VIA UNSCR REFERRAL
Get PDFThe objective of this journal article is to analyze as well as understand the scope of crimes that has been done by the recent Myanmar Juntas, specifically the crimes against humanity. It analyzes the determination of the crime based on the Rome Statute of the International Criminal Court as well as the possible applicability's-applicability applicability’ towards the ICC. The article will analyze the Junta action of using the basis of unfair election to enact crimes against humanity and the mechanism to bring the Juntas towards the ICC, either by UNSC Referral or the ICC investigation. In addition, the writer has also used several basis as a way to deem the current Junta government as illegitimate as well as the need to enact the UNSC referral
THE CASE OF MOHAMMED AISHA: THE EFFORTS IN PROTECTING SEAFARERS AGAINST ABANDONMENT
Get PDFThe abandonment case of Mohammed Aisha is a case that occurred in 2017, where the ship MV Aman was detained in the Egyptian port of Adabiya and caused a situation where Mohammed Aisha was trapped on the ship due to the failure of the shipowners. This then led to the case of the abandonment of seafarers. In this case, MLC 2006 is the instrument that covers regulation towards abandonment and seafarers' rights. This study was made to provide a broader and more detailed perspective related to cases of abandonment and MLC 2006. The goal of this research is to clarify matters that are unclear related to the regulation that is mentioned in MLC 2006, such as the vague regulation of who is in charge between flag states, port states, and nationals of seafarers in the case of the abandonment of seafarers in both theory and practice. Apart from clarifying the unclear matters of who is in charge of the three states mentioned previously, this research will elaborate even further regarding the International Transport Workers' Federation (ITF) role in advocating the repatriation of the abandoned seafarers. This research revealed that the 2006 MLC has not been very effective in protecting the rights of seafarers and that the obligation for repatriation lies within the flag state; however, in its practice, when a flag state fails to carry its obligation, then the port state and the origin country of the seafarers with the help from ITF shall take that roll
MEMBERSHIP STATUS OF TIMOR LESTE IN ASEAN BASED ON ASEAN CHARTER 2007: PROBLEM AND PROSPECT
Get PDFAs the youngest country in Southeast Asia, Timor Leste realizes that becoming a member of ASEAN is important, and even the Timor Leste government says joining ASEAN is a priority for the country. Following up on its seriousness, in 2011, Timor Leste officially submitted an application to become a member of ASEAN, but 11 years later, the application has not yet been approved. Based on this background, this study was conducted to determine the current status of Timor Leste's membership in ASEAN based on the ASEAN Charter 2007 and to find out what hinders Timor Leste's acceptance as a member of ASEAN and how the prospects for Timor Leste's membership in ASEAN in the future. The results of this study show that first, in terms of Article 6 paragraph 2 of the ASEAN Charter, Timor Leste's membership status in ASEAN has not been ratified because Timor Leste has not fulfilled all the requirements contained in the article so currently, it is still a non-member observer country. Second, the thing that hinders Timor Leste's acceptance as a member of ASEAN is the use of a rigid and absolute consensus as well as the growing era which makes ASEAN countries increasingly see many factors to accept Timor Leste, then seen from Timor Leste's economic growth which is the slowest in Southeast Asia and one of the poorest countries in the world makes the authors feel that Timor Leste's membership status in ASEAN will not be accepted in the near future
TERRORISM AS CORE INTERNATIONAL CRIMES : THE CASE OF FOREIGN TERRORIST FIGHTER (FTF) OF ISLAMIC STATE OF IRAQ AND SYRIA (ISIS)
Get PDFSince it had established a caliphate in 2014, Islamic State of Iraq and Syria (ISIS) continued to threaten the international peace and security by attacking and killing civilians. ISIS foreign terrorist fighters (FTFs) are ISIS members who have combat functions. Altough it is a serious crime, terrorism has not yet been recognized as a stand-alone core international crimes according to customary international law. The fact that ISIS is referred to as a terrorist groups, not a state-entity, has also raised a question of whether ISIS FTFs can only be prosecuted for committing terrorism related offences. This paper argues that terrorism acts by ISIS FTFs can fit the element of the existing core international crimes such as crimes against humanity, war crimes and genocide To this end, this paper elaborates the most common offences committed by ISIS FTFs and analyses element of each of core international crimes. This paper concludes that ISIS FTFs should be held liable for those core international crimes and prosecuted before national and international criminal court accordingly.  
Indonesia’s Approach to International Treaties: Balancing National Interests and International Obligations
Get PDFThe relation and interaction between international and domestic law is one of the classic issues in international and it controversy remains in the realm of theory and practice. This is an issue of which many generations of both international and constitutional lawyers have wrestled, are wrestling and will continue to wrestle. For the Indonesian context, this issue is also still far from clear. The Indonesian Constitution of 1945 stipulates that the President of the Republic of Indonesia has the authority to conclude treaties with other countries. However, it does not clearly and specifically govern the status and position of international treaties under the Constitution. As a result, the Indonesian approach to international treaty is rather pragmatic, which is susceptible to some inconsistencies. It can be seen for instance in several decisions of the Indonesian Constitutional Court that clearly demonstrates the ambiguity towards international treaty. The Indonesian Parliament (DPR) argues that Indonesia should put emphasize to the national interests when Indonesia concluded international treaties. For a certain extent this approach is vulnerable to disregard international obligations in the name of national interests. There are some legislation for instance in the field of trade, which contains national interests clause that potentially will put Indonesia as the party that disregards its international obligations. This paper argues that national interests and international obligations are mutually inclusive, and not mutually exclusive element. To this end, international treaties should have a clear status and position under the Indonesian constitution to ensure that national interest and international obligation are working in harmony
WIRETAPPING ON SUBMARINE COMMUNICATIONS CABLE: QUESTIONING ITS LEGALITY AMIDST LONG STANDING PRACTICE
Get PDFUp to 95% of the communication infrastructures are currently served by the submarine communications cable networks, which in their utilisation connect a wide variety of communications data. The increasingly advanced infrastructure is in fact unable to go hand in hand with legal transformation. At the present time, international law provides only partial protection in form of prevention against damage to the cable networks. Consequently, in the event that data transmissions across the cable networks are illegally exploited by foreign parties through "wiretapping" without inflicting any damage, as long as it is committed in the body of waters outside the state's sovereignty, the international law is unable to explicitly address this situation. The wiretapping has occurred in a couple of instances, however, the proper preventive measures are still in question. Fortunately, the most recent practice of international law in the field of human rights has provided some clarities through case law. Despite the fact that it has only been applied regionally, this endeavour is at the very least capable of supporting future proposed legal reforms. This article will further elaborate on the legality of wiretapping on submarine communications cable networks based on the relevant field of international law, which eventually revealed that such conduct is contrary to cyber law, international law of the sea and human rights law
A “Ticking Bomb” Named FSO Safer: Environmental Impact and State Responsibility under the View of International Law of the Sea
Get PDFOil spill is known as one of many common environmental disasters. Many oil spill disasters have cost countries and companies around the world huge amount of losses, and most importantly severe environmental damage which is not recoverable. Currently, one of Yemeni ships named FSO Safer is trapped and stranded around 5 miles from the outer coast of Yemen. The ship is carrying around 1 million barrels of crude oil in its storage, unfortunately the ship is currently in a poor condition and unstable, which may cause the largest super tanker oil spill disaster in the history, even worse than the Exxon Valdez disaster. Countries around the world including UN Members are looking for an immediate alternative to mitigate the disaster, as the Yemeni Government is currently in an armed conflict with the Houthi and have a very limited resource. This paper will analyze, which country will be affected by this imminent peril, who shall be responsible for the disaster and whether an exceptional circumstance that surrounds Yemen Government may discharge them for their responsibility as a state. This paper found that, this imminent disaster, will affect most of the countries located in the area of Red Sea, and the responsibility to deal with this imminent disaster are attached to all the affected countries under the UNCLOS 1982, including Yemen without any exception. An international movement initiated by the UN and Yemen Government itself must act immediately to prevent the disaster
IS THE AICHR AN UNWANTED HUMAN RIGHTS BODY IN THE ASEAN? THE ANSWER FROM THE INTERNATIONAL ORGANIZATIONAL LAW PERSPECTIVE
Get PDFThe AICHR is a remarkable achievements of ASEAN after having the ASEAN Charter in 2007. However, since the TOR of AICHR has a serious institutional defect that makes the AICHR unable to protect peoples’ human rights, the AICHR could not be act as a human rights guardian in the region. It leads to the question whether the ASEAN and its member states want the body to be established to protect the people in the region? The answer to this question is important to figure out the future human rights mechanisms in the region. The question will be addressed through qualitative and normative legal research. Field research was conducted to resolve some questions that are not provided in the literature to enrich the understanding on the topic from the ASEAN elites, practioner, and academicians. It finds that The institutional defect and less political support showed that ASEAN and its member states do not want to have a reliable regional human rights mechanism. However, it finds that there was an evolutionary approach that has been conducted by the AICHR despite that situation to promote human rights in the region. The study suggests the AICHR to use strong words of the TOR and the ASEAN Charter to enhance their performance and reliability. A new approach for human rights mechanisms that sets in a formal way; under a legal-binding instrument are more favorable. Therefore, if the AICHR show that characteristic, it will be supported by the ASEAN and its member states
POTENTIAL OF ENVIRONMENTAL TRANSBOUNDARY HARM CAUSED BY GENETIC MODIFIED ORGANISM AS MECHANISM FOR BIOREMEDIATION: A CASE STUDY IN CORAL TRIANGLE BIODIVERSITY HOTSPOT
Get PDFBiotechnology was introduced to the world of industries in the early 2000s. Its profound impact has continued shaping the mechanism of environmental clean-up. The development of biotechnology has received a wide variety of attention. Hence, bioremediation becomes integral to the notion of sustainability for environment quality. Especially, within oil & gas sector the damage can be substantial towards the environment longevity. Specifically, one of the most monumental in terms of potential harm is offshore oil & gas operations. On the other hand, the sophistication within oil & gas sector has become a rapid development over the last few years. It’s based on fact the oil & gas ought to be drilled deeper within the ocean floor. As the depth of drilling increase, so does the complexity of the oil composition. With this, regular bioremediation mechanism might not be able to handle the structural chemical complexity. Thus, a genetic modification appeared as the most efficient effort to reduce environmental damage and strike out the oil chemical complexity. However, it’s easier said than done. This because ethically, the modification potentially could harm the natural environment. Not just nationally but also transboundary. Therefore, the issue also discusses a new area of multidisciplinary approach where expected law meets an unprecedented amount of scientific efficiency.
 
Assessing the Potential Effectiveness of the ASEAN-China Code of Conduct on the South China Sea in Constraining Chinese Aggressive Actions
Get PDFThis article assesses the potential of the Code of Conduct in the South China Sea in constraining Chinese aggressive actions and maintaining the peaceful order of conduct of claimants and countries bordering the highly-disputed South China Sea. Given the recent Chinese aggressive military and pseudo-military moves in the South China Sea to enforce its arguable illegal nine-dash line claim in the South China Sea, there are hopes that the Code of Conduct agreement between China and ASEAN states will provide a legal protection and guideline in the dispute management in the South China Sea. In spite of this aspiration, a closer inspection of the Code of Conduct reveals that one should not have a high degree of confidence in the potential of the Code of Conduct in managing and regulating the conduct of parties in the South China Sea. Seen through the lens of realism, especially given the anarchic nature of the international arena and the unclear type of international law that the Code of Conduct will assume, this article argues that countries, Indonesia especially, should not have a high degree of expectation that the Code of Conduct will act as some sort of legal power that could restrain China from utilizing military and pseudo-military power in enforcing its claim in the South China Sea