HUKUM LAUT INTERNASIONAL ALUR LAUT KEPULAUAN INDONESIA (ALKI)

1. HUKUM LAUT INTERNASIONALALUR LAUT KEPULAUAN INDONESIA (ALKI) FAKULTAS HUKUM UNIVERSITAS BRAWIJAYA DhianaPuspitawati, SH, LLM, PhD

3. REJIM ALUR LAUT KEPULAUAN INDONESIA • Dengan diakuinya konsep negara kepulauan oleh masyarakat internasional, kedaulatan negara kepulauan diperpanjang sampai perairan kepulauan subject to rejim alur laut kepulauan atau Archipelagic Sea Lanes Passage (ASLP) sebagaimana diatur dalam pasal 53 LOSC • Article 53 (2) defines ASLP as “the exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely by the purpose of continuous, expeditious and unobstructed transit between one part of high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone”

4. HISTORICAL BACKGROUND PEMBUATAN ALKI UTARA-SELATAN • RATIFIKASI LOSC pada 3 FEBRUARY 1986 (http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm) • FORUM STRATEGI AL 1991—Proposal Tiga ALKI Utara-Selatan diajukan • CISARUA MEETING—awal 1995 oleh Deplu berdasarkan surat dari Menteri PolHankam kepada Menlu No. B.153/Menko/Polkam/12/1994 tanggal 7 December 1995—proposal ALKI Utara-Selatan disetujui (domestically) • Konsultasi with IHO, user maritime States (UK, Japan, the USA and Australia) and neighbouring States (Malaysia, Singapore and Thailand) • Submission to IMO—a competence international organization under Article 53 (9) of UNCLOS—bahas bu etty

5. IMO’s competence in adopting ASL(s) • Article 53 (9) LOSC • Tidak ada satu pasalpun dalam LOSC yang menunjuk IMO sebagai ‘competence organization’ yg dimaksud dalam article 53 (9) LOSC. • Article 39 (2) (a) LOSC merujuk ke COLREG (International Regulation on Preventing Collision at Sea, annex VIII LOSC – dalam bidang navigasi, polusi laut expert organisation a/ IMO – IMO’s competence is obvious • Prof.Etty Agoes mempertanyakan bahwa kompetensi IMO hanyalah terbatas pada teknik navigasi kapal komersiil – no such limitation • PBB menunjuk IMO sbg organisasi yg kompeten lihat IMO Doc. MSC 67/7/3, 5 September 1996, Sea Lanes in archipelagic waters: IMO Procedures for adopting archipelagic sea lanes under Article 53 (9) of the United Nations Convention on the Law of the Sea (UNCLOS), submitted by Australia.

6. Article 1 of the Convention of the International Maritime Organization “the purposes of the organizations are (a)…to encourage and facilitate the general adoption of the highest practicable standards in matters concerning maritime safety, efficiency of navigation…”

7. The designation of archipelagic sea lanes is closely related to maritime safety and efficiency of navigation. Therefore, all inferences clearly point to giving the IMO the responsibility to deal with the adoption of ASLs proposals under LOSC – traffic separation scheme o/ IMO For similar point of view see Batongbacal, Jay, “Barely Skimming the Surface: Archipelagic Sea Lanes Navigation and the IMO”, in Elfrink, A.G. Oude and Rothwell, Donald R (eds), Oceans Management in the 21st Century: Institutional Frameworks and Responses, Koninklijke Brill NV, (2004), 49-68.

8. The USA and Australia suggested that the Indonesia’s ASLs should include the East/West navigational routes. – This is a reference to Article 53 (4) of UNCLOS which required the ASLs to include all normal passage routes used for international navigation. • The informal agreement on rules to be applied in exercising the regime of ASLP through Indonesian Waters, known as “The 19 Rules”, was reached between the USA, Australia and Indonesia. • The neighbouring States as well as the UK and Japan also the IHO did not raise any crucial objection to the Three North/South ASLs.

9. INDONESIA’S ASLs (NORTH/SOUTH ROUTES)

10. INDONESIA’S ASLs PROPOSED BY THEUS

11. INDONESIA’S ASLs PROPOSED BY AUSTRALIA

12. ADOPTION OF THE PROPOSED INDONESIA’S THREE NORTH/SOUTH ASLs BY THE IMO • The proposed Indonesia’s ASLs were adopted by the IMO on 19th May 1998 within the General Provisions on the Archipelagic Sea Lanes Proposal (GPASL) as “Partial ASLs”—owing to the absence of the east/west ASLs. • “Partial ASLs” is defined as 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 UNCLOS.” (Par. 2.2.2. of the GPASL, IMO Doc. MSC 69/22/Add.1) • Although the efforts made by Indonesia to implement Part IV of UNCLOS should be respected (Indonesia is the only archipelagic States who has formally designated ASLs) , however, it was unfortunate for Indonesia to go ahead with the proposed ASLs which was not complete

13. KASUS BAWEAN

14. LOCATION OF BAWEAN INCIDENT OF 3RD JULY 2003

15. BAWEAN INCIDENT • According to Regulation 37/2002 Art. 3 and 15 the passage of USS Carl Vincent though the east/west route should be under IP – this is in contrary with UNCLOS and Indonesia’s international position which allows the right of ASLP upon such routes. • According to UNCLOS, Indonesia’s international position, 19 Rules and GPASL explained above, it is the right of the USS Carl Vincent to exercise ASLP through the east/west routes in the absence of designated sea lane through such route. • The disparity between Indonesia’s international and domestic position poses a difficulty for transiting vessels.

16. For the implementation of such adoption, Indonesia has enacted Indonesian Regulation No. 37/2002 regarding the Rights and Obligations of Foreign Ships and Aircraft exercising the Right of ASLP through designated ASLs Article 3 of Regulation 37/2002 stated: “The rights of archipelagic sea lanes passage through other Indonesian waters can be exercised in accordance with this Regulation as soon as archipelagic sea lanes have been designated in those waters.” Article 15 of Regulation 37/2002 stipulated: “Six months after this government regulation was enforced, foreign ships and aircraft can exercise the right of archipelagic sea lanes passage only through the designated Indonesian archipelagic sea lanes as stipulated in this government regulation.” (Italics added) Those provisions implied that ships transiting through other routes outside the three designated ASLs would be limited to IP—this is in contrary with UNCLOS INDONESIAN GOVERNMENT REGULATION NO. 37/2002

17. UNCLOS AND 19 RULES • UNCLOS requires the designated sea lanes to include all normal passage routes used for international navigation and in the absence of the designated sea lanes, the right of ASLP can be exercised through routes normally used for international navigation (Article 53 par. 4 and 12 of UNCLOS) • Rule 19 of the 19 Rules stated: Pending to 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 -– This is a reference to the above point

18. IMO DOCUMENTS • GPASL par. 6. 7 (IMO Doc. MSC 69/22/Add.1): “Where a partial archipelagic sea lanes proposal has come into effect, the right of archipelagic sea lanes passage may be continue to be exercised through all normal passage routes used as routes for international navigation or overflight in other parts of archipelagic waters in accordance with UNCLOS.”—this is a reference to Article 53 (4) and (12) of UNCLOS • IMO Doc. MSC 67/7/2 dated 30 August 1996 (Note by Indonesia), par. 11: “Pending the designation of other sea lanes through other parts of the archipelagic waters, the right of sea lanes passage may be exercised in the relevant archipelagic waters in accordance with the Law of the Sea Convention 1982.”--this is a reference to Article 53 (4) and (12) of UNCLOS

19. DISADVANTAGES OF PARTIAL ASLs • Article 53 (12) stated “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.” • Thus, ships may exercise the regime of ASLP through the east/west routes (currently there are three version of routes normally used for international navigation through the east/west routes)—refer to map • That way, the Indonesian archipelagic waters, especially the east/west routes will be widely open • It would be very difficult for Indonesia to monitor the passage of foreign ships through its waters in order to provide and assist on the safety of navigation.

21. INDONESIA’S REASONS TO EXCLUDE THE EAST/WEST ROUTES • CONCERN OF JAVA SEA, OVER WHICH TRADITIONAL FISHING GROUNDS AND AREAS OF EXPLOITATION AND EXPLORATION OF NATURAL RESOURCES, INCLUDING OFF-SHORE OIL ARE LOCATED, BECOME OVER CROWDED WITH TRADING VESSELS. --- COMPARED TO ASLs I (SOUTH CHINA SEA TO SUNDA STRAIT), JAVA SEA IS LESS CROWDED. MALUKU SEA (ASLs III) FISHERIES ACTIVITIES AS WELL AS EXPLORATION AND EXPLOITATION AND NATURAL RESOURCES ALSO EXISTS. • JAVA SEA CONTAINS OF SHALLOW SEA – THE USA HAVE ALWAYS NAVIGATED THROUGH JAVA SEA AND FOUND NO DIFFICULTIES. • SECURITY POINT OF VIEW—INDONESIAN ARMY TEND TO SEE THE DESIGNATION OF EAST/WEST ASLs WOULD ENDANGER THE SECURITY OF INDONESIA.

22. ADVANTAGES OF THE DESIGNATION OF EAST/WEST ASLs • By designating the east/west ASLs, the passage of foreign ships through the east/west routes is allocated to an exact sea lane where the regime of ASLP can be exercised. • This way, the monitoring of foreign ships will be a lot easier and it will also a lot easier for Indonesia to assist the voyages of foreign ships traversing the archipelago. • It would also easier for Indonesia to promote national security by ensuring that foreign ships’ activities can be placed under efficient and effective monitoring and surveillance.

23. INFORMAL INDONESIAN PROPOSAL ON THE EAST/WEST ASLs

24. CONCLUSION AND RECOMMENDATION • INDONESIA HAS DONE SIGNIFICANT EFFORTS TO IMPLEMENT THE PROVISIONS OF PART IV OF UNCLOS, HOWEVER, WITH REGARD TO THE DESIGNATION OF ASLs, SUCH IMPLEMENTATION IS STILL UNSATISFACTORY OWING TO THE ABSENCE OF THE EAST/WEST ASL. • INDONESIA SHOULD DESIGNATE THE EAST/WEST ASL IN THE SOONEST REALISTIC TIME IN ORDER TO MAKE SUCH ROUTES CERTAIN AND THUS IT WOULD BE EASIER FOR INDONESIA TO MONITOR THE PASSAGE OF FOREIGN SHIPS.