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Law of Treaties (Perjanjian Internasional): Issues in Indonesia

by: Dr. iur. Damos Dumoli Agusman

Damos Dumoli Agusman and Haryo Budi Nugroho

Jakarta Post, 7 March 2016

Regardless of the underlying legal disputes in the South China Sea (SCS), recent developments have apparently demonstrated the spiral model termed “security dilemma”, a condition where “in the absence of a supranational authority that can enforce binding agreements, many of the steps pursued by states to bolster their security have the effect — often unintended and unforeseen — of making other states less secure” (Robert Jervis, 2001). 


This Cold War-like situation is currently happening in the South China Sea. We can see that China’s deployment of missiles in Woody, one of the disputed maritime features that has been reclaimed by China, as a triggering factor that intensifies this security dilemma. 

Clearly, this factor is an escalation from existing conditions that already involves some degree of military activity by claimants concerning maritime features of the South China Sea. 

This increasing activity in occupying the maritime features has occurred since 2013 when China started to conduct reclamation projects and build airstrips capable of accommodating various types of wide airplanes. 

The deployment of missiles then indeed puts the icing on top of this recipe for regional tension. 

From another perspective, China sees the US Freedom of Navigation and Operation (Fonop) in the South China Sea as a triggering factor that has prompted it to raise its defense system. As a “defensive measure”, China moved surface-to-air missiles and sent fighter jets to the Paracel Islands. Consequently, this has been interpreted as an offensive measure by various countries, such as Australia, which will increase Fonop in the concerning waters. 

If we go back further back in time to trace which factor was actually the trigger, both by claimants and other states, it reveals an endless cycle that only proves that such a security dilemma is at work. Defensive and offensive measures are hardly distinguishable. 

Can a security dilemma be avoided then? Frankly, it cannot. The international community is an anarchic system. This security dilemma is rooted on the basic assumption that every state can only obtain security if its power is relatively higher than other states. As a logical consequence, an arms race is inevitable. 

The situation can be aggravated if there is a particularly conflicting interest that places states in an opposite position. To the point, even a normal rise in military spending due to inflation can be interpreted as a threat and motivate others to increase their military budgets higher than previously expected. 

The anarchic system has been well acknowledged by states, in particular in the Southeast Asian region. In fact, Southeast Asian nations have created a mechanism to mitigate security dilemmas, which is through ASEAN. 

For years ASEAN has endeavored to maintain peace and stability in the region, foster good relations and confidence building. The establishment of the ASEAN Political-Security Community (APSC) has marked another milestone for the process to manage, among other things, security dilemmas. 

Efforts to make Southeast Asia a stable region began a long time ago. We can recall the 1971 Zone of Peace, Freedom and Neutrality Declaration and the 1976 Treaty of Amity and Cooperation in Southeast Asia (TAC), and even the 2002 Declaration of Conduct of Parties in the South China Sea (DOC) as examples of the attempts to prevent security dilemmas. The US is a party to the TAC while China is party to both the TAC and DOC. 

Utmost respect for peace, peaceful settlement of dispute and self-restraint are the basic elements of the aforementioned documents that so far have kept Southeast Asia free of open conflicts. 

To emphasize the context more, it is the self- restraint that ultimately addresses the security dilemma, a principle that is well expressed in Paragraph 5 of the DOC. 

In a disputed area such as the South China Sea, ideally the status quo is maintained when all parties exercise self-restraint. Again, ideally, the security dilemma will be under control. 

Any kind of construction and military deployment on the disputed features or in the area will be easily perceived as failure to exercise self-restraint, which can stimulate other parties to react in a manner of protecting their interests. 

States have to acknowledge the importance of not falling into the vicious circle of a security dilemma, while waiting for the core of the dispute to be resolved. 

Various efforts may be taken to overcome this security dilemma and manage the tension. The conclusion of the Code of Conduct of Parties in the South China Sea is one good example. But in the end, overcoming this issue and maintaining stability in the region is up to the goodwill and self-restraint of states. 
___________________________________

Damos Dumoli Agusman and Haryo Budi Nugroho are lecturers of international law. The views expressed are their own. 
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