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Session 2-3
VARIOUS ISSUES FACING THE SURROUNDING SEA
AREAS OF INDONESIA
Etty R. Agoes
Professor, International Law, Padjadjaran University
The 1982 United Nations Convention on the Law of the Sea which came into force on 16 November 1994 has been regarded as a constitution of the oceans. It creates a structure for the governance and protection of the sea, including the airspace above and the seabed and subsoil below. It also addresses the balance of coastal and maritime States' interests with respect to all areas of the sea.
Maintenance of ocean security and protection of the marine environment and its resources are recognized obligations put forward by the 1982 Convention on all States in all maritime zones. As a country that has ratified the Convention, Indonesia is under the obligation to implement the relevant provisions of this Convention particularly those regarding ocean security, protection of the marine environment and its resources. Indonesia, therefore, have to go through the process of formation and implementation of legal and policy frameworks.
As a State that has ratified the 1982 Convention, the effect or consequence of the entry into force of the Convention for Indonesia can be described through a list of activities classified as legislative and regulatory, enforcement and administrative, and cooperative in nature. As in the case of the formation of the new law of the sea into the 1982 Convention, the implementation of this new law in Indonesia has taken an evolutionary way.
Before the establishment of the new law of the sea in 1982 most of the Indonesian laws and regulation governing sea activities were mostly based on the four 1958 Geneva Conventions on the Law of the Sea. However, after Indonesia ratified the 1982 Convention in 1985, Indonesia has enacted and revised a number of laws and regulations governing the seas and its resources. Indonesia has succeeded in establising its sovereignty and jurisdiction in the territorial sea, archipelagic waters, continental shelf and the exclusive economic zone, however, it has not yet declared its contigous zone, and therefore has not enacted any law or regulation pertaining to it.
This paper tries to give a brief description on some important laws and regulations which may be considered as Indonesia's effort toward implementation of the 1982 UNCLOS, even though some of the, were enacted before the Convention came into force, thereby requires further analysis on whether it should be revised accordingly. It signifies the importance of the 1982 Convention for the maintenance of ocean security, protection and preservation of the marine environment and its resources to an archipelagic State like Indonesia. Establishment and implementation of legal and policy frameworks are needed to enable Indonesia to benefit from this new law of the sea.
VARIOUS ISSUES FACING THE SURROUNDING SEA
AREAS OF INDONESIA
Etty R. Agoes
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Position: Professor, International Law, Padjadjaran University, Indonesia
Education: Doctor of Law, Padjadjaran University, Indonesia, LL.M., the University of California Law School, United States, S.H., Parahyangan University Law School, Indonesia
Agoes has taught at Padjadjaran Law School since 1974 and is executive director of the Indonesian Center for the Law of the Sea and Marine Affairs. She has carried out various researches on different topics such as law of the sea, economic law, environment law, fisheries law, coastal zone management and human rights. While she taught at several universities as non-permanent members of faculty, she served as a legal advisor for Indonesian government, including Ministry of Marine Affairs and Fisheries. She has also participated in many academic and professional organizations, such as Southeast Asian Project on Ocean Law (SEAPOL) as a member of the Board of Directors, International Law Association as a member of the EEZ and Marine Pollution Committees. She has published more than 100 articles and several books on various topics mostly on international law and law of the sea.
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INTRODUCTION
The 1982 United Nations Convention on the Law of the Sea, 1 which came into force on 16 November 1994 has been regarded as a constitution of the oceans. It creates a structure for the governance and protection of the sea, including the airspace above and the seabed and subsoil below. It also provides a framework for the allocation of sovereignty, jurisdiction, rights and duties among States that was carefully tailored to balance the interests of States in controlling activities off their coasts and the interests of all States in protecting the freedom to use ocean spaces beyond national jurisdictions without undue interference.
The 1982 Convention addresses the balance of coastal and maritime States' interests with respect to all areas of the sea. From absolute sovereignty that every State exercises over its land territory, internal waters (and in the case of archipelagic States its archipelagic waters), the adjacent belt of territorial sea and the superjacent airspace, the exclusive rights and control that the coastal State exercises over maritime areas off its coast diminish in stages as the distance from the coastal State increases, through the contiguous zone, exclusive economic zone, continental shelf, high seas and the international sea-bed area. On the other hand, the rights and freedoms of maritime States are at their maximum on the high seas and gradually diminish in ocean zones closer to the coastal State.
Maintenance of ocean security and protection of the marine environment and its resources are recognized obligations put forward by the 1982 Convention on all States in all maritime zones. As a country that has ratified the Convention, Indonesia is under the obligation to implement the relevant provisions of this Convention regarding those matters, particularly those regarding ocean security, protection of the marine environment and its resources. Indonesia, therefore, have to go through the process of formation and implementation of legal and policy frameworks.
Given the requirement to limit the length of the paper and presentation, this paper will focus the discussion mostly on the legal issues facing Indonesia in the implementation of the 1982 Convention. Further, I will define the "surrounding sea areas of Indonesia" as only those maritime zones which fall within the sovereignty and jurisdiction of Indonesia, thus excluding the high seas and the international sea-bed area.
MARITIME ZONES WITHIN THE SOVEREIGNTY AND JURISDICTION OF INDONESIA
The 1982 Convention provides a framework for the allocation of sovereignty, jurisdiction, rights and duties among States. Being an archipelagic state, Indonesia's sovereignty and jurisdiction can be exercised in various maritime zones, as follows:
Internal waters
Article 8(1) defines internal waters as the waters on the landward side of the baseline from which the breadth of the territorial sea is measured. This definition carries forward the traditional definition of internal waters found in Article 5 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone. Article 50 of the 1982 Convention, however, recognizes another part of internal waters resulted from the drawing of closing lines within archipelagic waters.
Archipelagic waters
Recognition of an archipelagic State sovereignty over its archipelagic waters is given by Article 2(1) of the 1982 Convention, and further regulated in Articles 47(6), 49 and 53(4). Nowhere in the 1982 Convention could we find an exact definition of archipelagic waters, however, since Article 2(1) recognized it as having the same status as internal waters of a "normal" coastal State, archipelagic waters then can be described as waters on the landward side of the straight archipelagic baselines including the interconnecting waters between the islands within the archipelagic State, or it can also be described as waters encircled by the straight archipelagic baselines of an archipelagic State.
Territorial sea
Article 2 describes the territorial sea as a belt of sea which is measured seaward from the baseline of the coastal State and subject to its sovereignty, which also extends to the airspace above and the seabed and subsoil. In the case of an archipelagic State, the territorial sea lies seaward from the straight archipelagic baselines encircling the outermost islands of the archipelago. Under Article 3, the coastal State (including the archipelagic State) has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 miles, measured from the baselines determined in accordance with the 1982 Convention.
The contiguous zone, exclusive economic zone (EEZ) and continental shelf
These maritime zones begin at the seaward limit of the territorial sea and are are measured from the same baselines used in determining the outer limit of the territorial sea. The contiguous zone may extend to a maximum distance of 24 miles from the baselines, while the EEZ maximum distance is 200 miles from the same baselines. The continental shelf may extend to a distance of 200 miles from the baselines or, if the continental margin extends beyond that limit, to the outer edge of the continental margin as defined by the 1982 Convention. The regime of the continental shelf applies to the seabed and subsoil and does not affect the status of the superjacent waters or airspace.
ISSUES CONCERNING IMPLEMENTATION
As a State that has ratified the 1982 Convention, the effect or consequence of the entry into force of the Convention for Indonesia can be described through a list of activities classified as legislative and regulatory, enforcement and administrative, and cooperative in nature. 2
1. Legislative and regulatory, for instance through:
a. establishment of sovereignty or jurisdiction in the various maritime zones such as the territorial sea, archipelagic waters, contiguous zone, continental shelf and the exclusive economic zone;
b. elaboration of activities in the territorial sea, contiguous zone, straits used for international navigation, archipelagic waters, exclusive economic zone and continental shelf by regulations;
c. regulations relating to vessels and aircraft, right of access, transit, sovereign rights over natural resources, protection and preservation of the marine environment, and conduct of marine scientific research; and
d. regulations relating to submarine cables and pipelines, navigation, aviation and communication, custom, fiscal, immigration and sanitary.
2. Enforcement and administrative, through arrangements for, among others:
a. establishment of limits;
b. establishment of sea lanes, air routes, traffic separation schemes, safety zones and routing systems;
c. maritime administration;
d. customs, fiscal, immigration and sanitary regulations;
e. rights of access and transit;
f. fisheries administration;
g. environmental administration;
h. marine scientific research;
i. development and transfer of marine technology; and
j. administrative aspects of surveillance, control and enforcement.
3. Co-operative:
Activities of co-operative nature with other States or through international organizations for, among others:
a. safety of navigation and regulation of maritime and air traffic;
b. conservation, management and utilization of living resources;
c. protection and preservation of the marine environment;
d. marine scientific research; and
e. development and transfer of marine technology.
In addition to the activities and arrangements listed above, effect of the entry into force of the Convention also includes some scientific and technical aspects, such as hydrographic surveying and charting for the purposes of navigational safety and the establishment of sovereignty and jurisdiction.
Given the length and complexity of the Convention, policy makers and their advisers need to have a close analytical scrutiny of the Convention, in order to have an adequate understanding of this new law of the sea. It is equally important for policy makers and their advisers to have an understanding of the Convention in its historical perspectives, to enable them to appreciate the relationship between the new rules and those of customary law and earlier treaties, in particular the 1958 Geneva Conventions.
As in the case of the formation of the new law of the sea into the 1982 Convention, the implementation of this new law in Indonesia has taken an evolutionary way. Before the establishment of the new law of the sea in 1982 most of the Indonesian laws and regulation governing sea activities were mostly based on the four 1958 Geneva Conventions on the Law of the Sea.
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