Maritime Studies
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Maritime Studies |
|
Dhiana Puspitawati[1]
The Law of the Sea Convention (LOSC) contained a number of new navigational rights of which archipelagic sea lanes passage was but one. There had previously been no established rules under international law for passage through mid-ocean archipelagos.[2] Article 53 of the LOSC, which sought to implement a new comprehensive and coherent archipelagic sea lanes passage regime, was therefore a major new development in international law relating to the rights of navigation and overflight.
Under Article 53 (1), an archipelagic State may designate sea lanes through, and air routes over, its archipelagic waters and territorial sea. If it fails to do so, the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation.[3] Furthermore, archipelagic sea lanes passage is defined as the exercise of the rights of navigation and overflight in the normal mode for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone (EEZ) and another part of the high seas or an EEZ.[4] Such sea lanes and air routes must include all normal passage routes and navigational channels used as routes for international navigation, except that duplication of routes of similar convenience between the same entry and exit points are not necessary.[5] An archipelagic state may designate sea lanes and prescribe traffic separation schemes for the safe passage of ships through narrow channels in such sea lanes and may substitute other sea lanes or traffic separation schemes for previously designated ones, but they must all conform to generally accepted international regulations.[6]
Prior to their designation or substitution, however, such sea lanes or traffic separation schemes must be referred to the competent international organisation.[7] This is the International Maritime Organisation (IMO). Among other things, the IMO has the obligation to review the relevant navigational safety aspects, provide technical advice on implementation of the LOSC and carry out an environmental assessment of the areas traversed by the Archipelagic Sea Lanes (ASL).[8] The IMO may only adopt such sea lanes or traffic separation schemes as may be agreed with the archipelagic state.[9]
Despite the great advance that Article 53 of the LOSC represents over the void that previously existed regarding the regulation of archipelagic sea lanes passage, the present wording of the article still presents a number of problems. Foremost is the way in which the requirements of subsections (4) and (12)[10] appear capable of defeating the purpose of establishing the ASL in the first place under subsection (1).[11] This is because there is no definition of ‘routes normally used for international navigation.’[12] Questions arise as to what constitutes ‘normally’ used and how many countries are required to make the navigation ‘international’? Do two or three transits a year by a ship make it ‘normal?’ And does being used occasionally by two or three countries make it ‘international?’ A number of commentators have suggested that these vague notions may be the source of major future difficulties.[13] If all normal passage routes used by every country in the world through an archipelago were regarded as routes used for international navigation that could be designated as ASLs, then nearly all archipelagic waters could be regarded as ASLs. Moreover, normal passage routes used by a particular company or country may differ from the normal passage routes used by other companies or countries.
Geographers use a number of indicators to determine whether a group of islands constitute an ‘archipelago’ and typically take into account the number, size, shape, position and location of the islands and islets,[14] and geographically there are various types of archipelagos.[15] However, one should not be confused by those various geographical types[16] as the only recognised legal definitions with regard to the different types of archipelagos are the ones contained in the LOSC. It only recognises the coastal archipelago and the mid-ocean archipelago, although the Convention does not even use those two terms or distinguish directly between the two.[17] The provisions regarding the mid-ocean archipelago are provided in part IV of the LOSC, whereas coastal archipelagos are covered by the provisions on straight baselines in Article 7, which permits straight baselines to be drawn around ‘a fringe of islands along the coast in its immediate vicinity’.[18] In this Article, only the mid-ocean archipelago (i.e. in accordance with the LOSC archipelagic State regime) is considered.
The LOSC defines archipelago as ‘a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely inter-related that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.’[19] This definition has accommodated the need of archipelagic States to safeguard their national and political unity and their territorial integrity, as was argued by the Indonesian Delegation to the Third United Nations Conference on the Law of the Sea (UNCLOS III). The Indonesian delegation proposed the definition of archipelago as ‘a group of islands and other natural features which are so closely inter-related that the component islands and other natural features form an intrinsic geographical, economic and political entity or which historically has been regarded as such.’[20]
It follows from the above that there are essential elements of an archipelagic State, namely: (i) a group of islands; (ii) those islands should be closely inter-related; (iii) they should form an intrinsic geographical, economic and political entity; or (iv) be historically regarded as such. Not every group of islands comes under the above-mentioned legal concept. Munavvar argued that the first element leads to a further question as to how many islands are considered enough to form a group of islands?[21] The Philippine’s delegation in the UNCLOS I suggested it encompass any group of islands which are located sufficiently close to each other and form a compact whole.[22] However, the Philippines did not further explain how to determine the compactness of a group or how many nautical miles the distance between island should be.
As well as the first element, the second element also leads to ambiguity as to what the criteria of ‘closely inter-related’ should be?[23] However, the third and the fourth elements can be considered sufficient to determine the criteria of archipelago considering that the basic consideration of the concept of archipelagic state was the national unity, territorial integrity, political and economic stability.[24] These elements aim to prevent a state, which has widely scattered islands not having geographical, economic and political entity, to claim to be an archipelagic State.
To meet the conceptual elements of the concept of archipelagic state, those four elements of the definition of archipelago should be fulfilled comprehensively, not alternatively.
The archipelagic concept is very important to Indonesia, as it emphasises the unity of land and waters territory of Indonesia. Hence, Indonesian people consider ‘the land’ and ‘the sea’ as one single word, ‘tanah air.’[25] As stated by the Indonesian delegation at UNCLOS III:
…the Indonesian language equivalent for the word ‘fatherland’…is ‘tanah air’ meaning ‘land-water’, thereby indicating how inseparable the relationship is between water and land to the Indonesian people. The seas to our mind, do not separate but connect islands. More than that, these waters unify our nation.[26]
The Republic of Indonesia is made up of some 13,000 islands, which lie between the Indian and Pacific Oceans and the continents of Asia and Australia. It is one of nineteen states in the world claiming archipelagic status.[27]
The Indonesian people have a deep understanding of what constitutes their territory and how they perceive their national boundaries, which is illustrated by the Indonesian concept of ‘wawasan nusantara’, which urges the integration of Indonesia’s territorial lands and waters into one contiguous whole.[28] Consequently, Indonesians view the sea as a unifying force that brings them together rather than as a barrier, which keeps them apart.
The geographic characteristics of Indonesia bring out special needs and imperatives concerning its national existence, while at the same time also bringing special responsibilities relating to the interests of the international community. One of the key aspirations detailed in the Indonesian Proclamation of Independence is to safeguard its national and political unity as well as its territorial integrity.[29] Before independence, when the Dutch still ruled Indonesia, the regulations regarding Indonesian waters were contained in the Government Gazette, Territoriale Zee en Maritieme Kringen Ordonantie 1939, which stated that each of Indonesia’s islands had their three nautical mile territorial sea measured from its baseline.[30] According to this principle, the waters between Indonesia’s islands were still part of the high seas. On the basis of the imperatives embodied in the aspiration of Indonesia’s proclamation of Independence, on December 13, 1957 Indonesia declared the ‘Deklarasi Djuanda’, proclaiming itself an archipelagic state.[31] Principally, it stated that all waters around, between and connecting the islands of the Republic of Indonesia, regardless of their width or depth, are the natural appurtenances of the land territory of the Republic of Indonesia and therefore form part of the internal waters under absolute sovereignty of Indonesia. Thus, the unity of the land and waters territories of Indonesia was emphasised for the first time.
Based on this declaration, Indonesia enacted Act No. 4/Prp/1960,[32] which was a unilateral statement made by Indonesia,[33] stating that Indonesian waters consisted of territorial waters and internal waters.[34] According to this Act, internal waters included the archipelagic waters. This Act was revised on 8 August 1996, which stated that Indonesian waters comprise territorial waters, archipelagic waters and internal waters.[35]
It was argued at the UNCLOS III for reasons including fostering national unity, keeping territorial integrity with regard to geographical conditions and retaining political and economic stability, that an archipelagic State should have the right to draw straight baselines connecting the outermost points of the outermost islands and drying reefs of the archipelago.[36] The desire to achieve these objectives was one of the main reasons why Indonesia was so quick to claim archipelagic status.[37]
Since Indonesia’s ratification of the LOSC on 31 December 1985, it has made several efforts to implement the archipelagic sea lanes passage regime, including organising several national meetings and coordination among relevant institutions.[38]
Those meetings culminated in a National Working Group meeting in Cisarua at the beginning of 1995. This resulted in the acceptance of the three north/south ASLs, which had been proposed during the Indonesian Navy Strategic Forum in 1991.[39]
The Indonesian ASLs proposal was submitted to the IMO on 30 August 1996 and the Maritime Safety Committee 67 (MSC-67) meeting discussed the Indonesian proposal on 2-6 December 1996.[40] Responses were received from 22 States and three related institutions. Most States commented on the lack of east/west ASLs through the Java Sea and questioned the exclusion of other normal routes used for international navigation.[41] Therefore, the proposed ASLs had to be re-discussed in the meeting of Sub-Committee of Navigation 43 (NAV 43) on 14-18 July 1998. This meeting was also aimed at producing the General Provisions on Ships’ Routeing. After the NAV-43 meeting, it was again discussed at the meeting of MSC-69[42] in May 1998 in London, where a working group consisting of 20 states was established. This group continued discussion of document NAV 43/3/97 concerning the amendments to the General Provisions on Ships’ Routeing for guidance for all archipelagic states in designating ASLs. The three Indonesian ASLs were formally approved by the IMO on 19 May 1998.[43]
Map 1: Indonesia’s three north/south Archipelagic Sea Lanes (Approved by the IMO).
Source: IMO SN/Circular 200 (26 May 1998) available online at http://www.imo.org/includes/blastData.asp/doc_id=3477/200.PDF.
However, these ASLs were only considered to be ‘partially designated’[44] because they did not include all normal passage routes used for international navigation and in particular, excluded east/west ASLs. Consequently, over the east/west route the Archipelagic Sea Lanes Passage (ASLP) can be exercised through all normal passage routes used for international navigation.[45]
The term ‘partial’ used by the IMO raises questions as the LOSC itself does not mention it.[46] Moreover, although the IMO has been recognised by the international community as the international institution that is competent in adopting ASLs,[47] the IMO itself did not have a role in such matters until an archipelagic State had actually proposed its ASL for adoption.[48]
The competence of the IMO as the international organisation to approve ASL proposals proposed by archipelagic States is another interesting discussion point. Although the LOSC does not directly nominate the IMO as the competent organisation, Article 39(2)(a) refers to the International Regulations for Preventing Collisions at Sea (COLREG), which was the product of the IMO.[49] In addition, Article 2 of Annex VIII of the LOSC states that in the field of navigation, including pollution from vessels and by dumping, the lists of experts for special arbitration cases should be drawn up by the IMO. Further, there is no other United Nations’ body that could compete for the position. For these reasons, the competence of the IMO as the organisation is appropriate.
However, the competence of the IMO in this matter has been questioned. Dr Agoes doubted the IMO’s competence based on the fact that its competence was limited to the navigational technique for commercial ships.[50] The author sees no such limitation on the IMO’s competence.[51] Article 1 of the Convention of the International Maritime Organization[52] reads: ‘the purposes of the organisations are (a)…to encourage and facilitate the general adoption of the highest practicable standards in matters concerning maritime safety, efficiency of navigation…’. The designation of archipelagic sea lanes is closely related to maritime safety and efficiency of navigation. Therefore, from the author’s point of view, such purposes clearly gave the IMO competence to deal with the adoption of ASLs proposal under the LOSC.[53]
P. Krismas
Before Indonesia referred its designated ASLs to the IMO, Indonesia had consulted with a number of user States, including the US,[54] Australia,[55] Japan and the UK.[56] The three north/south ASLs were thus the culmination of a series of pragmatic negotiations between the Archipelagic State and the principal user States. Generally, Japan and UK did not raise any crucial objections. On the other hand, Australia and the US, conscious that their strategic and economic interests depend on passage routes through the Indonesian archipelagic waters, played vital roles in the adoption of Indonesia’s ASL by the IMO. With these two states, an agreement on rules to be applied on the ASL was also reached informally with Australia and the US, known as the ‘19 rules’[57] – see Annex 1 on page 9. Similar consultations were also made with the neighbouring States, such as Malaysia, Singapore and Thailand.
Map 2: Normal Passage Routes Used for International Navigation
This picture only represents two versions of routes normally used for international navigation namely: British (----) and the US (……). There are two versions of the east/west routes.
Source: Komando Operasi Keamanan Laut, ‘Konsep Alur Laut Kepulauan dan Pengaturan Lintas kapal-kapal asing di Perairan Nasional’, MabesAL, Jakarta
Before going to the IMO, Indonesia also discussed its proposed ASLs with the International Hydrographic Organization (IHO)[58] to explain the hydrographic surveys that had been conducted and to gain support on geographical aspects and safety of navigation issues.
During discussions on Indonesia’s ASL proposal, the US suggested that Indonesia should also designate the east/west ASL, especially through the Java Sea. This suggestion was made because according to the LOSC provision in designating ASLs Indonesia should include all normal passage routes used for international navigation.[59] If Indonesia did not include an east/west route in its ASL, they considered that the innocent passage regime under Article 52 would be applied over the east/ west route.[60] The consequences of this would be that submarines may be ‘required to navigate on the surface’ and to show their flag under Article 20.[61]
On the other hand, if submarines were traversing in ASLs, they could do so in ‘normal mode’ under Article 53 (3). It is often accepted that normal mode for modern submarines is dived and, when dived, the presence of the submarines is not easily revealed and this will increase their security.[62] Under the innocent passage regime Indonesia would also have the authority to suspend passage for the reasons of its security under Article 25 (3). The reason of such suspension includes weapon exercises. The US thus proposed additional ASLs to Indonesia, which included east/west routes used for international navigation.[63]
Map 3: Indonesia’s Archipelagic Sea Lanes Proposed by the US
Source: Kustia, A.A., Indonesian Navy Rear Admiral, ‘Hasil Evaluasi Panja TNI-AL tentang Penentuan Alur Laut Kepulauan Indonesia’, MabesAL, Jakarta, 1996
Australia played a vital role in the adoption of Indonesia’s designated ASL proposal. Australia was also concerned with the need for the east/west ASLs for passage through Indonesia’s archipelagic waters. Australian representatives participated in three informal bilateral meetings with Indonesia and in one informal meeting with the U.S. representatives after 1996 to discuss Indonesia’s designated ASL proposal.[64]
Australia suggested that Indonesia should consider the interests of both States in designating Indonesia’s ASL, especially the interests of economic, trade, military and defence activities. It suggested that Indonesia should add another north/south ASL running from the Arafura Sea to the Pacific Ocean through the deeper waters between Maluku and Irian Jaya, as well as one east/west ASL. Australia emphasised that these routes were very important for its trade and military activities.[65]
Relying on Article 53 (4) that all routes be designated, Australia emphasised that Indonesia should not designate partial ASLs.[66] Both Australia and the US were concerned about the application of the innocent passage rules through the east/west route.
Following IMO approval of the north/south ASLs, follow-up action was needed by Indonesia to enact national regulations to establish navigational guidance, to prepare navigational charts complete with its navigational aids through the ASL, and to prepare monitoring, surveillance and control systems. On 28 June 2002, Indonesia enacted a national regulation regarding the implementation of the ASL and archipelagic sea lanes passage.[67] This government regulation was enacted on 28 June 2002 and deposited with the IMO in June 2003. It came into force in December 2002 or six months after it was enacted.[68]
The language of this regulation has resulted in different interpretations between Indonesia and other maritime user States arising from ‘partial’ designation of ASLs. This different interpretation arises because the Indonesian Regulation is not consistent with the LOSC, and with the 19 Rules agreed by Indonesia and other maritime user States (see Annex 1 to this paper).
It was not stated in the regulation whether the designation of three north/south ASLs is a complete or partial designation, considering that there are other routes which have been used for international navigation for many years.[69] Article 3 paragraph 1 of the Government Regulation reads:
Map 4: Indonesia’s Archipelagic Sea Lanes Proposed by Australia
Source: Kustia, A.A., Indonesian Navy Rear Admiral, ‘Hasil Evaluasi Panja TNI-AL tentang Penentuan Alur Laut Kepulauan Indonesia’, MabesAL, Jakarta, 1996
[t]he rights of Archipelagic Sea Lanes Passage [ASLP] through other Indonesian Waters can be exercised in accordance with this Regulation as soon as archipelagic sea lanes have been designated in those waters.[70]
This provision can be interpreted that the ASLP can only be exercised if the ASLs have been designated. This is clearly inconsistent with Article 53 (12) of the LOSC which stated that in the absence of the designated ASLs, ASLP may be exercised through routes normally used for international navigation.
Furthermore, Article 15 of the Government Regulation strongly envisages that ships and aircraft may exercise archipelagic sea lanes passage only through the designated archipelagic sea lanes.[71] From this provision, it seems that the right of archipelagic sea lanes passage cannot be exercised in the other parts of Indonesian waters other than through the designated three north/south ASLs.[72] This is inconsistent with rule 19 of the 19 Rules, which reads:
For the purpose of safety of navigation and the safety of Indonesia, foreign tankers, vessels using nuclear energy, foreign vessels carrying nuclear substances and other dangerous goods, foreign fishing vessels as well as foreign warships passing through Indonesian waters from one part of the Exclusive Economic Zone or High Seas to another Exclusive Economic Zone or High Seas are recommended to pass through the sea lanes.
The designation of archipelagic sea lanes in certain archipelagic waters does not affect the exercise of the right of innocent passage outside the sea lanes in the relevant archipelagic waters in accordance with article 52 paragraph 1 of the LOSC.
Pending the designation of other sea lanes through other parts of the Indonesian archipelagic waters, the right of archipelagic sea lanes passage may be exercised in the relevant archipelagic waters in accordance with the Law of the Sea Convention 1982. (Italics added)
According to rule 19 above, if there are no sea lanes established in the other parts of the Indonesian waters, the right of archipelagic sea lanes passage may be exercised in accordance with the LOSC. This is a reference to Article 53 (12) of the LOSC, which allows ships to exercise archipelagic sea lanes passage through the route normally used for international navigation.
Indonesia’s three north/south ASLs are a successful effort by Indonesia as the leading proponent of the concept of archipelagic states in implementing the LOSC, and in particular Part IV of the LOSC. Although these ASLs are considered as ‘partial ASLs’ by the IMO because they do not include all normal passage routes, in particular the east/west routes, these definite and certain ASLs cover the north/south routes and are better than having none designated.
The absence of the east/west ASL still allows foreign ships to exercise the ASL passage over the east/west routes according to their own versions of what are the normal routes.[73] This way, there is still uncertainty over the east/west navigational routes. There are generally three versions of these normal east/west routes.[74] Informally, Indonesia has proposed one east/west ASL but this has not been published yet.[75] This way, there will be a potential tension between the normal east/west route and the informally proposed routes. Despite this possible tension, Indonesia should go ahead with its east/west proposal in order to improve the management of the safety of navigation for ships traversing Indonesian waters.
Map 5: Indonesia’s Informal proposal on the Indonesian East/West Archipelagic Sea Lanes Passage.
Source: Kustia, A.A., Indonesian Navy Rear Admiral, “Hasil Evaluasi Panja TNI-AL tentang Penentuan Alur Laut Kepulauan Indonesia”, MabesAL, Jakarta, 1996
It is recommended that Indonesia should designate the east/west ASL at the earliest. This is because such designation will remove the possible tension between Indonesia and user maritime States and eliminate the uncertainty on the east/west navigational routes. With the definite east/west ASL, it will be compulsory for foreign ships exercising ASLP over the east/ west routes to navigate through the east/west ASL designated by Indonesia.
Despite the fact that there is some ambiguity in the wording of the critical provisions of the LOSC and potential inconsistency in implementing the ASL provisions, it has been Indonesia’s clear desire and intention to oblige the international community with clear rules concerning navigational rights in waters under its jurisdiction. The routes through Indonesia’s archipelagic waters are important to user maritime States such as Australia and the United States, both economically and politically.
The ‘partial’ designation of Indonesia’s three north/south ASLs and the absence of the east/ west ASL makes the exercise of the ASLP regime over Indonesian waters uncertain. Although Indonesia’s informal proposal on the east/west ASL will cause a possible tension with the user maritime States, which have their own version of normal east/west routes, Indonesia should formally introduce its east/ west ASL. It is important for Indonesia to cooperate with other maritime user States and arrive at a solution that is acceptable to all interested parties.
Thus, the designation of the east/west ASL is very important because this designation will remove the possible tension between Indonesia and user maritime States and make the navigational regime over the east/west routes certain. With the definite and certain east/west ASL all foreign ships exercising ASL passage over the east/west routes will be obliged to navigate only through the east/west ASL designated by Indonesia. This way, the management of the safety of navigation for ships traversing Indonesian waters will be improved.
With regard to Government Regulation 37/2002, Indonesia needs to re-examine and review its provisions to make them consistent with the existing understanding on the issue and with the LOSC itself.
1. Ships in sea lanes will not disturb or threaten the sovereignty, territorial integrity, or independence and national unity of Indonesia. They will not carry out any action that would contravene principles of international law as embodied in the United Nations Charter.
2. Except for situations involving force majeure or distress, aircraft in archipelagic sea lanes passage shall not land in Indonesian territory, including territory in the sea lanes, and shall not deviate more than 25 nautical miles to either side of the axis lines during passage, provided that such aircraft shall not deviate closer to the coast than 10 per cent of the distance between the nearest points on islands bordering the sea lanes.
3. Foreign civil aircraft passing through the sea lanes must comply with international rules of civil aviation as established by the ICAO.
4. While exercising sea lanes passage, foreign warships and foreign military aircraft are not allowed to conduct war exercises or use live ammunition, nor to conduct a war game. They are to proceed without delay through or over the sea lanes in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit.
5. Foreign warships, as well as ships using nuclear energy, passing through sea lanes, are recommended to inform the Indonesian Government (namely the Commander of the Indonesian Armed Forces) in advance for the purpose of safety of navigation and to take the preparatory actions should something untoward happen.
6. Subject to Rule 18, ships carrying nuclear materials, except warships and other government ships operated for non-commercial purposes, are required to notify the Commander of the Indonesian Armed Forces in advance in accordance with the Convention on the Physical Protection of Nuclear Materials; are requested to comply with the code for the safe carriage of irradiated nuclear fuel, plutonium and high level radioactive waste in flasks on board ships (INF code); and are required to comply with other international conventions dealing with transportation or carriage of dangerous goods, hazardous materials and noxious substances, including the IMDG codes and HNS codes.
7. Foreign military aircraft flying above the sea lanes must observe the safety of civil aviation and monitor emergency frequencies, and are requested to maintain contact with the authorised air traffic controllers within controlled air space.
8. Transiting foreign ships should move carefully in sea lanes which are full of economic activities (either fisheries or mining), should exercise caution in limited navigational areas, and are prohibited from entering within (500) (1250) meter safety zones around oil and gas installations, and should always observe and be careful with respect to under water cables and pipelines.
9. Foreign fishing vessels must keep their fishing gear stowed during transit and are prohibited from carrying out fishing activities while in transit.
10. Transiting ships through sea lanes have to follow generally accepted international navigational rule for the safety of navigation and to be careful and show due regard for local shipping as well as activities of local fishermen.
11. Ships in sea lanes passage must comply with all generally accepted international standards regulating pollution of the marine environment from vessels and, in accordance with such standards, shall not discharge poisonous or dangerous materials while in Indonesian waters. Ships using sea lanes shall not dump wastes or other matter while in Indonesian waters.
12. All ships are prohibited from either cleaning tanks and discharging wastes overboard or from polluting Indonesian waters while in transit.
13. All passing ships are not allowed to stop or anchor or to move back and forth while passing without any legitimate reason, except in case of force majeure or in distress. Transiting ships shall navigate in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit.
14. Transiting ships are not allowed to disembark persons or goods and transfer them to other ships or to embark persons/ goods from other ships in contravention of customs, fiscal, immigration or sanitary rules of Indonesia, or to carry out other activities in contravention of those rules.
15. Ships and transiting aircraft are not allowed to carry out survey works or marine scientific research, including taking water samples for the purpose of investigation during passage. They should not interfere with survey or marine scientific research activities carried out by Indonesia in the sea lanes or there above.
16. Transiting ships and aircraft are prohibited from carrying out unauthorised broadcasting or to emit electronic signals that are aimed at interfering with national telecommunications systems and are prohibited from establishing direct communications with unauthorised persons or groups in the territory of Indonesia.
17. Transiting ships shall always meet the generally accepted international requirements for the safety of navigation.
18. To the maximum extent established by applicable international agreements, shippers, cargo owners, and ship owners are liable individually or collectively for the damage caused by them and shall be insured as required by those agreements. Shippers, cargo owners, and ship owners are liable individually or collectively for the damage caused by them, including to pay compensation to Indonesia, by way of applicable international agreements and shall be insured as required accordingly. The flag state of a ship entitled to sovereign immunity shall bear international responsibility for damages caused to Indonesia by the non-compliance of the ship with international law.
19. For purposes of safety of navigation and the safety of Indonesia, foreign tankers, vessels using nuclear energy, foreign vessels carrying nuclear substances and other dangerous goods, foreign fishing vessels as well as foreign warships passing through Indonesian waters from one part of the exclusive economic zone or high seas to another part of exclusive economic zones or high seas are recommended to pass through sea lanes.
The designation of archipelagic sea lanes in certain archipelagic waters does not affect the exercise of the right of innocent passage outside the sea lanes in the relevant archipelagic waters in accordance with Article 52, paragraph 1 of the UNCLOS.
Pending the designation of other sea lanes through other parts of the Indonesian archipelagic waters, the right of archipelagic sea lanes passage may be exercised in the relevant archipelagic waters in accordance with the Law of the Sea Convention, 1982.
Source: Ello, Nicolas P, Indonesian Navy First Admiral, ‘Hasil Sidang IMO dan Konsultasi IHO tentang ALKI dalam rangka Implementasi UNCLOS 1982’, MabesAL-Dishidros, Jakarta, September 1997.
[1] Dhiana Puspitawati, SH (Unair), LLM (Monash), is an Indonesian student completing her PhD through the T.C. Beirne School of Law (Marine & Shipping Law Unit) at the University of Queensland.
[2] H Djalal, ‘The Law of the Sea Convention and Navigational Freedoms’, in DR Rothwell & S Bateman (eds), Navigational Rights and Freedoms and the New Law of the Sea, Martinus Nijhoff Publishers, The Hague, 2000, pp. 1, 5.
[3] Article 53 (12) of the LOSC.
[4] Article 53 (3) of the LOSC.
[5] Article 53 (4) of the LOSC.
[6] Article 53 (6), (7), (8) of the LOSC.
[7] Article 53 (9) of the LOSC.
[8] R Warner, ‘Implementing the Archipelagic Regime in the International Maritime Organization’ in DR Rothwell & S Bateman (eds), op. cit., pp. 170, 174.
[9] Article 53 (9) of the LOSC.
[10] Article 53 (12) of the LOSC reads ‘If an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation.’
[11] Djalal, op. cit., pp. 1, 1-10.
[12] ibid.
[13] B Kwiatkowska & ER Agoes, ‘Archipelagic Waters: An Assessment of National Legislation’ in R Wolfrum, (ed.), Law of the Sea at the Crossroads: The Continuing Search for a Universally Accepted Regime, Proceedings of an Interdisciplinary Symposium of the Kiel Institute of International Law, 10-14 July 1990, Duncker & Humblot, Berlin, 1990, pp. 107, 143.
[14] HP Rajan, ‘Towards Codification of Archipelagos in International Law’, 1973, vol. 13, Indian Journal of International Law, p. 468.
[15] See M Munavvar, Ocean States’ Archipelagic Regimes in the Law of the Sea, Martinus Nijhoff Publishers, 1995, p. 6, stated that there are three main types of archipelago, namely: continental or coastal archipelagos, archipelagos with one or more dominating main islands, and mid-ocean archipelagos also known as outlying archipelagos. See also Rajan, 1973, op. cit., who stated that there are three types of archipelagos, namely continental archipelagos, mid-ocean archipelagos and large islands archipelagos, which are also known as ‘Quasi-archipelagos’.
[16] E Gold, written correspondence and discussion with author on 23 May 2002.
[17] See Article 7 and Part IV of the LOSC.
[18] RR Churchill & AV Lowe, The Law of the Sea, 2nd Edition, Manchester University Press, Manchester, 1999, p. 120.
[19] Article 46 (b) of the LOSC.
[20] Statement made by M Kusumaatmadja, ‘The Legal Regime of Archipelagos: Problems and Issues’ and ‘Supplementary Remarks’, in LM Alexander, ed., The Law of the Sea: Needs and Interest of Developing Countries. Proceedings of the Seventh Annual Conference of the Law of the Sea Institute, 26-29 June 1972, at the University of Rhode Island. Kingston: University of Rhode Island, 1973.
[21] Munavvar, 1995, op. cit., p. 109.
[22] United Nations Conference on the Law of the Sea, 1958, Official Records, VIII, p. 239.
[23] ibid.
[24] As stated by the Indonesian delegation at the Third United Nations Conference on the Law of the Sea, United Nations, Third United Nations Conference on the Law of the Sea, Official Records, vol. 1, United Nations Publication, New York, 1975, p. 187.
[25] H Djalal, Indonesia and the Law of the Sea, Centre for Strategic and International Studies, Jakarta, 1995. See also I Shearer, ‘Navigation issues in the Asian Pacific Region’ in The Law of the Sea in Asian Pacific Region, in J Crawford & DR Rothwell, eds, Martinus Nijhoff Publishers, The Netherlands, vol. 21, 1995, p. 199.
[26] Third United Nations Conference on the Law of the Sea, Official Records, vol. 1, New York, United Nations Publication, 1975, p. 187.
[27] As at 4 March 2004. See the list of territorial claims maintained by the United Nations Department for the Law of the Sea maintained at http://www.un.org/Depts/ los/LEGISLATIONANDTREATIES/PDFFILES/claims_2004.pdf
.
[28] Wawasan nusantara (the Indonesian label for archipelagic doctrine) represents the apex of Indonesia’s political aspiration of one nationality, one language and one homeland. See BA Hamzah, ‘Indonesia’s Archipelagic Regime: Implications for Malaysia’, Marine Policy, no. 4, 1984, p. 30.
[29] Djalal, loc. cit., 1995.
[30] Government Gazette, Stb. 1939, No. 442.
[31] Statement made by Prof. Dr. M Kusumaatmadja, Minister of Justice and Leader of the Indonesian Delegation to the Third United Nations Conference on the Law of the Sea, Caracas, 15 July 1974. When this Government Declaration was made, it was signed by the Prime Minister Ir. H. Djuanda, therefore this government declaration is known as ‘Deklarasi Djuanda’.
[32] Government Gazette No. 22, 1960, explanatory section of the addition of Government Gazette No. 1942.
[33] M Kusumaatmadja, Konsepsi Hukum Negara Nusantara Pada Konferensi Hukum Laut III, Alumni, Bandung, 2003, p. 1.
[34] UU No. 4/Prp/ 1960 Article 1, translated by the author.
[35] UU No. 6/1996 Article 3, translated by the author.
[36] ‘Basic Elements of the archipelagic concept proposed by the delegation of Indonesia, Fiji, the Philippines and Mauritius’ in Kusumaatmadja, op. cit., 2003, p. 31.
[37] Statement made by Prof. M Kusumaatmadja to the Third United Nation Conference on the Law of the Sea in M Kusumaatmadja, Bunga Rampai Hukum Laut, Binacipta, Bandung, 1978. See also Third United Nations Conference on the Law of the Sea, Official Record, vol. 1, New York, United Nations Publication, 1975, p. 187.
[38] Ministry of Marine Affairs and Fisheries RI, ‘Sejarah Perkembangan Hukum Laut Indonesia dan kaitannya dengan Hukum Internasional’, (http://www.dkp.go.id/ ie/berita/Artikel/huklautri.htm
, accessed at 10:26 on 27 March 2003).
[39] NP Ello, ‘Hasil Sidang IMO dan Konsultasi IHO tentang ALKI dalam rangka implementasi UNCLOS 1982’, MabesAL-Dishidros, Jakarta, 1997, p. 1.
[40] This proposal was submitted to the IMO on 30 August 1996. NP Ello, ‘Garis Besar terbentuknya Rejim Negara Kepulauan Indonesia dan Pengajuan Alur Laut Kepulauan Indonesia (ALKI) hingga diadopsi IMO tanggal 19 Mei 1998,’ Dishidros, MabesAL, Jakarta, June 1998, p. 2.
[41] According to Article 53 (4) of the LOSC, the designation of archipelagic sea lanes passage should include all normal passage routes used for international navigation. Article 53 (4) of the LOSC reads: ‘Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent territorial sea and shall include all normal passage routes used for international navigation or overflight through or over archipelagic waters and, within such routes, so far as ships are concerned, all normal navigational channels, provided that duplication of routes of similar convenience between the same entry and exit points shall not be necessary.’ (Emphasis added.)
[42] R Warner, op. cit., 2000, p. 170.
[43] NP Ello, Hasil Sidang IMO dan Konsultasi IHO tentang ALKI dalam rangka Implementasi UNCLOS 1982, MabesAL, DisHidros AL, Jakarta, September 1997. See also Map 1, and Indonesian Navy Headquarters, ‘Hasil Evaluasi Panja TNI-AL tentang Penentuan Alur Laut Kepulauan Indonesia’ (‘The Indonesian Navy Working Group evaluation on Indonesia’s Archipelagic Sea Lanes’). The adoption of the partial system of sea lanes in Indonesian archipelagic waters is also recorded in IMO SN/Circular 200 (26 May 1998) available online at http://www.imo.org/includes/blastData.asp/doc_id= 3477/200.PDF
.
[44] General Provisions on Archipelagic Sea Lanes Passage (GPASL), MSC 71 (69), paragraph 2.2.2 defines a ‘partial archipelagic sea lanes proposals’ as ‘[a]n archipelagic sea lanes proposal by an archipelagic State, which does not meet the requirement to include all normal passage routes and navigational channels as required by LOSC.’
[45] Paragraph 6.7 of the GPASL says: ‘Where a partial archipelagic sea lanes proposal has come into effect, the right of archipelagic sea lanes may continue to be exercised through all normal passage routes used for international navigation or overflight in other parts of archipelagic waters in accordance with LOSC.’
See Map 2 on routes used for international navigation (the US and the British version), emphasised on the east/west routes. See also Komando Operasi Keamanan Laut, ‘Konsep Alur Lat Kepulauan dan Pengaturan Lintas kapal-kapal asing di Perairan Nasional’, MabesAL, Jakarta.
[46] R Warner, op. cit., 2000, pp. 170, 187.
[47] Article 53 (9) of the LOSC.
[48] Warner, loc. cit.
[49] According to Article 54 of the LOSC, Article 39 applies mutatis mutandis to archipelagic sea lanes passage.
[50] ER Agoes, ‘International Maritime Organization (IMO) dan Peranannya dalam Penetapan Alur-alur Kepulauan Indonesia (ALKI)’ in M Komar, ER Agoes & E Damian, Mochtar Kusumaatmadja: Pendidik dan Negarawan, Kumpulan Karya Tulis menghormati 70 Tahun Prof Dr Mochtar Kusumaatmadja, SH, LLM, Alumni, Bandung, 1999, p. 570. Similarly, the competence of the ICAO with regard to Article 54 of the LOSC was also doubted.
[51] In November 1994, the United Nations Division for Ocean Affairs and Law of the Sea issued a table listing which organisations it considers to be the competent international organisation for particular subject areas. It nominated the IMO to be the competent international organisation for the purpose of subject regulated in Article 53 (9) of the LOSC 1982. IMO Doc. MSC 67/7/3, 5 September 1996.
[52] The IMO is a specialised agency of the United Nations, established on 17 March 1958, based on the Convention on the Inter-governmental Maritime Consultative Organization (IMCO). The title of this Convention was amended in 14 November 1974 to be the Convention of the International Maritime Organization.
[53] Australia, IMO Doc MSC 67/7/3 (5 September 1996) paras 7 and 8.
[54] This informal consultation was conducted on 21-22 September 1995, 25 November 1995, 28-29 March 1996 and 17 May 1996 in Jakarta, New York and Bandung, respectively. See M Kusumaatmadja, ‘Alur Laut Kepulauan Indonesia (ALKI)’, Rapat Kerja Nasional mengenai Alur Laut Kepulauan Indonesia, Departemen Luar Negeri, Cisarua, 17-19 January 1995, p. 24. See also E R Agoes, op. cit., 1999, pp. 568, 590-592. Also interview with ER Agoes, Surabaya, 6 October 2003.
[55] This informal consultation was conducted in Jakarta, 23-24 April 1996 and 17 June 1996. See also Agoes, op. cit.
[56] This informal consultation was conducted in Jakarta, 15 February 1996, See also Agoes, op. cit.
[57] The Nineteen Rules. The Nineteen Rules were first introduced by Indonesia during the initial informal consultation with the US on 21-22 September 1995 in Jakarta. Since then during the subsequent meetings on 25 November 1995, 28-29 March 1996 and 17 May 1996, these rules were always the basis of discussion. Australia gave final comment on the Rules at the last informal meeting with Indonesia on 17 June 1996. Indonesia did not make any significant objections to the comments and in fact has incorporated these comments to the final ‘19 Rules’. However, there were no records which clearly stated the time and place of the finalisation of the 19 Rules. The Rules document was not meant to be a binding international agreement between the involved states. This is because such rules resulted from the series of informal consultations.
For the details of the discussion of the 19 Rules between the US, Indonesia and Australia see NP Ello, (First Admiral), loc.it. See also AA Kustia, (Rear Admiral), ‘Hasil evaluasi Panja TNI-AL tentang Penentuan Alur Laut Kepulauan Indonesia’, MabesAL, Jakarta, 1996.
[58] This consultation took place in Monaco, 23 August and 13-16 August 1997, Ello, op. cit., 1997.
[59] Article 53 (4) of the LOSC.
[60] Article 52 of the LOSC reads: ‘Subject to article 53 and without prejudice to article 50, ships of all States enjoy the right of innocent passage through archipelagic waters, in accordance with Part II, section 3. See also RR Churcill & AV Lowe, op. cit., p. 127.
[61] See also Royal Australian Air Force (RAAF), ‘International Status of Military Aircraft and Navigation Rights’, available on-line at http://www.raaf.gov.au/airpower/publications/doctrine/aap1003/highers/Ch_2.pdf
at 14.10.04.
[62] Discussion with Dr Michael White QC, a former submariner and submarine historian, on 16 February 2005.
[63] See Map 3: Indonesia’s Archipelagic Sea Lanes (Proposed by the US), Indonesian Navy Headquarters, ‘Hasil Evaluasi Panja TNI-AL tentang Penentuan Alur Laut Kepulauan Indonesia’ (‘The Indonesian Navy Working Group evaluation on the Indonesia’s Archipelagic Sea Lanes’).
[64] Warner, 2000, op. cit.
[65] See Map 4, Indonesia’s Archipelagic Sea Lanes (Proposed by Australia) File, Indonesian Navy Headquarters, Law Division. Under Article 25 (3).
[66] Indonesian Navy Headquarters, ‘Hasil Evaluasi Panja TNI-AL tentang Penentuan Alur Laut Kepulauan Indonesia’ (‘The Indonesian Navy Working Group evaluation on the Indonesia’s Archipelagic Sea Lanes’), above n. 17.
[67] Indonesian Government Regulation No. 37/2002.
[68] Kolonel Sunaryo, Indonesian Delegation on IMO meetings in approving Indonesia’s Archipelagic Sea Lanes Passage, interview with the author 4 November 2003, the Indonesian Navy Eastern Fleet Headquarters. See also IMO Doc. SN/Sir 200/Add.1.
[69] H Djalal, ‘Alur Laut dan Insiden 3 Juli’, in Tempo, 20 July 2003, p. 41.
[70] Article 3 paragraph 1 of the Government Regulation 37/2002.
[71] Article 15 of the Government Regulation 37/2002.
[72] Djalal, 2003, op. cit.
[73] Article 53 (12) of the LOSC. See also GPASL paragraph 2.2.2 and 6.7. IMO Documents MSC 71 (69).
[74] Prof Hasjim Djalal MA, Interview with the author, Jakarta, 26 October 2003.
[75] See Map 5 of the informal Indonesian east/west ASL proposal.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/MarStudies/2005/1.html