In discussing this topic, there are several subjects which should be considered, namely the nature of the archipelagic waters, the sovereignty and jurisdictions of the archipelagic states in and over their archipelagic waters, the security issues of the archipelagic states, their environmental concerns, and other related issues.

　

With regard to the nature of the archipelagic waters, it should be understood that the archipelagic waters are now part of the national territories of the archipelagic states. Article 49 paragraph 1 of UNCLOS 1982 clearly stated that "the sovereignty of an archipelagic state extends to the waters enclosed by the archipelagic baselines drawn in accordance with Article 47, described as archipelagic waters, regardless of their depth or distance from the coast". Moreover, paragraph 2 of Article 49 stated that "this sovereignty extends to the airspace over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein". In this context, it is very clear that the territorial sovereignty of an archipelagic state, in addition to sovereignty over land territories, also includes (1) territorial sovereignty over archipelagic waters, (2) over the airspace above the waters, (3) over the seabed and subsoil, and (4) over all the resources contained therein, whether natural or otherwise.

　

Although archipelagic waters, internal waters and territorial seas are all territorial in nature, the archipelagic waters should be distinguished from the other kinds of waters. It should be distinguished from internal waters and territorial seas. In internal waters, namely the waters on the landward side of the baselines of the territorial sea, generally there is no right of innocent passage. As such, the right of a state over its internal waters are very similar to its rights over its land territories. In territorial sea, namely the waters within 12 miles seaward of the 'straight baselines' or the 'straight archipelagic baselines', the right of innocent passage of foreign vessels is recognized. In archipelagic waters, the right of innocent passage of foreign vessels is recognized in addition to the right of 'archipelagic sea lanes passages' (ASLP) through 'normal passage routes used as routes for international navigation or overflight' or through specifically designated sea lanes and air routes thereabove (Article 53 of UNCLOS). The

article stipulates further the mechanism in designating such sea lanes, namely that the archipelagic state concerned will prepare a proposal to that effect and will refer them to the competent international organization with a view to their adoption, with the understanding that the Organization may adopt only such sea lanes and traffic separation schemes (TSS) as may be agreed with the archipelagic state, after which the archipelagic state may designate, prescribe, or substitute them.

　

　

In internal waters the right of innocent passage exists only "where the establishment of a straight baseline in accordance with Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such". Article 7 allows the drawing of 'straight baselines' for the purpose of establishing 'internal waters':(1) in localities where the coast line is deeply indented and cut into, or (2) if there is a fringe of islands along the coast in its immediate vicinity, or (3) because of the presence of a delta and other natural conditions where the coast line is highly unstable. Moreover, (4) a closing line may also be drawn at the natural entrance point of a bay if the bay does not exceed 24 nautical miles, and the waters inside the bay would also be internal waters.

　

A closing line to draw internal waters within archipelagic waters can also be drawn to delimit internal waters in accordance with Article 50 of UNCLOS 1982, namely at the mouth of rivers, at the entrance of bays, and in front of ports.

　

The notion of archipelagic waters should also be distinguished from the notion of archipelago. While an archipelagic state must necessarily consist wholly by one or more archipelagos (Article 46 paragraph a), it does not necessarily means that an archipelago, like Japan, will automatically become an archipelagic state, thus may not necessarily create archipelagic waters. An archipelago is a geographical concept, while an archipelagic state is a legal concept. An archipelago means "a group of islands, including parts of islands, inter-connecting 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 had been regarded as such" (Article 46 b of UNCLOS 1982). The waters within an archipelago have generally been regarded as "internal waters" while the waters within archipelagic states are generally regarded as "archipelagic waters", except those designated as 'internal waters' through the deployment of 'closing lines'.

　

There are plenty of differences between the right of innocent passage and the right of archipelagic sealanes passage. First, in innocent passage, submarines and other underwater vehicles are required to navigate on the surface and to show their flags (Article 20 of UNCLOS), while in archipelagic sea lanes passage they are allowed to navigate "in normal mode", allowing the possibility for underwater passage. Second, in innocent passage there is no right of overflight, while in the archipelagic sealanes passage overflight is permitted over the sealanes only. Third, the right of innocent passage can be suspended while the right of archipelagic sealanes passage cannot be suspended, although the sealanes can be substituted. Fourth, in innocent passage an archipelagic state has more power to regulate and to exercise control, while in the archipelagic sealanes passage this right is more limited. Fifth, there is no precise rule of international law with regard to the requirement of prior notification or prior authorization for warships navigating in innocent passage. Some countries require prior notification, some require prior authorization, and some strongly oppose these requirements. The convention is silent on this issue. Sixth, the possibility for cooperation between the user states and the archipelagic states in establishing and maintaining necessary navigational and safety aids or other improvements in aid of international navigation as well as cooperation for the prevention, reduction, and control of pollution from ships, are not clearly regulated in the archipelagic sealanes, although this provision exist clearly in relation to the right of transit passage through straits used for international navigation (Article 43) and at this moment, I believe, should also be applicable to archipelagic sea lanes.

　

While there is no right of other states within internal waters of other states, and limited rights within archipelagic waters, Article 47 paragraph 6 of UNCLOS 1982, however indicated "that if a part of the archipelagic waters of an archipelagic state lies between two parts of an immediately adjacent neighboring state, existing rights and all other legitimate interests which the latter State has traditionally exercised in such waters and all rights stipulated by agreement between those states shall continue and be respected." This is the special case of the rights and interests of Malaysia in the Indonesian archipelagic waters around Anambas and Natuna islands in the South China Sea which separate Peninsula Malaysia in the west and Serawak and Sabah in the east. Indonesia and Malaysia had concluded an agreement in 1982 arranging the exercise of these rights.

　

In archipelagic waters, an archipelagic state shall also respect existing agreements with other states and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighboring states in certain areas falling within archipelagic waters (Article 51 paragraph 1). But the article also stated very clearly that the terms and conditions for the exercise of such rights and activities, including the nature, the extent and the areas to which they apply, shall be regulated by bilateral agreements between them, and that such rights shall not be transferred to or shared with third states or their nationals. So far Indonesia has only signed such agreement with Malaysia in clearly identified archipelagic waters and Indonesian EEZ around Anambas islands in the South China Sea (see chart).

　

In archipelagic waters, an archipelagic state shall respect existing submarine cables laid by other states and passing through its waters without making a landfall, and that the archipelagic state shall permit the maintenance and replacement of such cables upon receiving due notice of their location and the intention to repair or replace them (Article 51 paragraph 2).

　

While an archipelagic state has sovereignty over its archipelagic waters as indicated above, it has also certain jurisdictions regarding the archipelagic waters: It has the right to determine straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago, provided that within such baselines included the main islands and an area in which he ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1 (Article 47 paragraph 1). The lengths of such baselines shall not exceed 100 nautical miles, except that up to 3 percent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. Article 47 further stipulates certain rules in drawing such straight archipelagic baselines. There is no clear rule in UNCLOS regarding the length of straight baselines of a "normal" coastal states, or the ratio of the areas of the sea and the land enclosed by such baselines.

　

Straight Archipelagic Baselines (SAB), should be distinguished from straight baselines (SB) for a normal coastal states. While SAB creates archipelagic waters ensuring a more varied rights of other states in the archipelagic waters, the straight baselines creates internal waters in which there is generally no rights of other states in such waters except, as indicated above, if the drawing of such straight baselines has the effect of enclosing areas which had not previously been considered as internal waters, in which case the right of innocent passage shall exist in those waters (Article 8 paragraph 2).

　

There are similarities, however, between straight archipelagic baselines (SAB) and straight baselines (SB) in the sense that both lines could be used as the basis for measuring territorial sea, contiguous zone, exclusive economic zone (EEZ), and continental shelf (Articles 3, 33, 48, 57, and 76).

　

There is also similar obligation of coastal state and archipelagic state in the sense that "they shall show on charts or prepare a list of geographical coordinates of points of the baselines, specifying their geodetic datum and shall give due publicity of such charts or list of geographical coordinates, and shall deposit a copy of each such chart or list with the Secretary General of the United Nations (Article 16 of UNCLOS 1982) straight baselines. Article 47 paragraph 8 and 9 stipulate similar obligations for an archipelagic state regarding straight archipelagic baselines. As far as Indonesian straight archipelagic baselines are concerned, the Government Regulation No. 38/2002 dated June 30, 2002, has just announced 183 base points of those baselines. Indonesia will certainly deposit a copy of each such chart or list of geographical coordinates with the Secretary General of the United Nations in due cause.

　

Being sovereign over the archipelagic waters, the archipelagic state has also the jurisdictions with regard to the establishment of the archipelagic sea lanes (ASL) and air routes thereabove, through the archipelagic waters, in accordance with Article 53 of UNCLOS, which are suitable for the continuous and expeditious passage of foreign ships and aircraft through or over the archipelagic waters and the adjacent territorial sea between one part of the high seas or an EEZ and another part of the high seas or an EEZ. On the basis of this provision, and after lengthy consultations with maritime powers as well as with the International Maritime Organization in London, and after Indonesian proposal had been adopted by the IMO, Indonesia through the Government Regulation No.37/2002 dated June 30, 2002, had established the axis of the three sea lanes in the direction of north-south through the Indonesian archipelagic waters (see charts). The Government Regulation stipulates clearly the geographical coordinates of the turning points of the axis of the three sea lanes and their branches. In accordance with Article 53 (3) of UNCLOS 1982, the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious, and un-obstructed transit through the sea lanes are recognized, and that ships and aircraft in archipelagic sea lanes passage shall not deviate more than 25 nautical miles to either side of such axis lines during passage, provided that such ships and aircraft shall not navigate closer to the coast than 10% of the distance between the nearest points on islands bordering the sea lane (Article 53 (5)). This kind of limitations does not exist in transit passage through states use for international navigation. In accordance with Article 53 (6) of UNCLOS, Indonesia may also prescribe traffic separation schemes (TSS) for the safe passage of ships through narrow channels in such sea lanes. However, with the exception of TSS in the Straits of Malaka and Singapore, no such TSS has been established in the designated sea lanes through Indonesian archipelagic waters. Although there are similarities between the regimes of transit passage through states used for international navigation (transit passage) and the regime of archipelagic sea lanes passage (ASLP), legally speaking, however, the regime of ASLP is different from the regime of transit passage in other respects. For instance, transit passage is described as 'freedom of navigation and overflight' (Article 38 (2)), and such transit 'shall not be impeded' and 'suspended' (Article 44, while ASLP is described as 'rights of navigation and overflight in the normal mode' which shall not be 'obstructed' (Article 53 paragraph 3), but can be 'substituted' (Article 53 paragraph 7).

　

In accordance with Article 54 of UNCLOS, and based on Article 42, an archipelagic state may also adopt laws and regulations relating to the archipelagic sea lanes passage through the sea lanes in respect of safety of navigation, the prevention of pollution, the prevention of fishing by foreign fishing vessels, as well as the prevention of loading or unloading of any commodity, currency, or person in contravention of the customs, fiscal, immigration, or sanitary laws and regulations of the archipelagic state. Furthermore, based on Article 54 and Article 19, an archipelagic state may also adopt rules and regulations to prevent foreign vessels and aircraft while exercising the right of innocent passage as well as archipelagic sea lanes passage from causing any threat or use of force against its sovereignty, territorial integrity or political independence, or in any other manner in violation of the principles of international law embodied in the Charter of the UN (Article 1 9, 39, and 54) As a consequence of long discussions between Indonesia and the maritime powers, some nineteen rules of navigating and overflying the archipelagic sea lanes of Indonesia have generally been agreed upon (see Annex). Most of these rules have been incorporated into the Government Regulation No.37/2002 of June 30, 2002.

　

Again, as the consequence of its sovereignty over its archipelagic waters, the archipelagic state also has jurisdiction to adopt laws and regulations to protect its marine environment, to regulate and prohibit the conduct of marine scientific research and hydrographic surveys by ships and aircraft while exercising the right of innocent passage as well as the right of archipelagic sea lanes passage, and to prescribe rules and regulations to prevent foreign vessels and aircraft to interfere with its rights and junsdictions to exercise its sovereignty in and over the archipelagic waters and their airspace, bed and subsoil, and the resources contained therein, including the prevention of foreign vessels from fishing while navigating in the archipelagic waters (Article 49 paragraph 4).