Archipelagic Sea-Lanes in Indonesia - Their legality in International Law

• Author: Chris Carl Forward
• Position: Graduate Lawyer at Mallesons Stephen Jaques, Perth. Chris previously served for 16 years in the Royal Australian Navy, predominantly as a submarine navigating officer, which introduced him to the importance of the Indonesian Archipelagic Sea Lanes in South East Asia. Thanks go to Kate Lewins (editor A&NZ Mar LJ) for her patience in the editing...
• Pages: 143-156

(2009) 23 A&NZ Mar LJ

ARCHIPELAGIC SEA-LANES IN INDONESIA – THEIR LEGALITY IN INTERNATIONAL

LAW

Chris Forward*

1. Introduction

In May 1996, Indonesia submitted the first (and only) proposal for the designation of three Archipelagic Sea Lanes

(ASLs) within its archipelago to the International Maritime Organisation (IMO). The IMO has claimed the mandate of

being the ‘competent international organisation’ referred to in the United Nations Convention on the Law of the Sea

(LOSC)1 for designating ASLs.2 After significant protests from major maritime countries including Australia and the

United States (a prominent non-signatory to the LOSC),3 the IMO declared Indonesia’s submission a ‘partial

designation’ of ASLs.4 This has provided maritime countries a significant victory as the declaration has rendered the

Indonesian ASLs practically useless because because there is no compulsion for maritime countries to use them.

Maritime countries, through their influence over the IMO, have maintained almost complete and unfettered access for

shipping within the archipelagic waters of Indonesia. This paper examines the Indonesian submission to determine the

validity of the IMO’s declaration at international law. Specifically, it examines the authority of the IMO as a self

professed ‘competent international organisation’, the role it has undertaken in the process, and the legality of its

determination that Indonesia’s ASL submission was a ‘partial declaration’.

This paper makes three assertions. First, despite claims to the contrary,5 the LOSC is not a universal codification of the

law of the sea nor is it a ‘Constitution for the Oceans’.6 It is a fundamental treaty which numerous states are bound to

adhere through being signatories. However, numerous important non-signatories, the significant quantity of

declarations on the interpretation of its provisions and the failure of the treaty to declare its jurisdiction over non-

signatories mean the treaty is not a full embodiment of universally applicable customary law. The LOSC has universal

application where it can be shown that it codifies existing customary law. However, the treaty has introduced

significant new concepts such as the archipelagic state, archipelagic sea-lane passage (ASLP) and ASLs. To be

universally applicable (that is applicable to all states, including non-signatories), it must be demonstrated that the

international legal concepts pioneered by LOSC have been accepted as representing customary international law.7

This paper argues that as there has been no complete implementation of the process for designating ASLs through the

process designated by the LOSC, the process cannot be accepted as valid international customary law. Therefore the

process is only binding on countries who are party to the treaty. Secondly, in the absence of being specifically named in

the LOSC treaty, the IMO must show it has been recognised as having the mandate as the ‘competent maritime

authority’ to designate ASLs.8 It is argued that the IMO does not have this mandate yet, despite its declaration to the

contrary. Finally, the paper analyses the conduct of the IMO in its consideration of Indonesia’s submission for

recognition of ASLs within its territory and specifically the legality of its declaration of the submission as being a

‘partial submission’.

2. Historical Introduction

The Law of the Sea is a unique field of international law. From a practical point, legal regimes differ between the

oceans and land due to their existence in fundamentally different environments. Today, it is an accepted concept that

oceans are open and free to all users in the regions beyond the territorial control of any state (the ‘freedom of the seas

* Graduate Lawyer at Mallesons Stephen Jaques, Perth. Chris previously served for 16 years in the Royal Australian Navy, predominantly as a

submarine navigating officer, which introduced him to the importance of the Indonesian Archipelagic Sea Lanes in South East Asia. Thanks go to

Kate Lewins (editor A&NZ Mar LJ) for her patience in the editing process, and Pat Saraceni, (Special Counsel at Mallesons Stephen Jaques,) for her

support and encouragement to submit this article for publication.

1 United Nations Convention on the Law of the Sea (UNCLOS), opened for signature 9 Dec 1982, ATS 31, 21 ILM 1261, (entered into force 16 Nov

1994).

2 Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, IMO Doc LEG/MISC.5 (2007)

[Part II] , <www.imo.org> at 15 August 2009.

3 Constance Johnson, ‘A Rite of Passage: The IMO Consideration of the Indonesian Archipelagic Sea-Lanes Submission’, (2000) 15(3) The

International Journal of Marine and Coastal Law 326-327.

4 Ibid 329.

5 John O'Sullivan, ‘Lost is right: the U.S. should steer clear of the Law of the Sea treaty’ (2007) 59 National Review 16.

6 Tommy Koh, A Constitution for the Oceans, <http://www.un.org/Depts/los/convention_agreements/texts/koh_english.pdf> at 16 November 2008.

7 Peter Malanczuk, Modern Introduction to International Law, (7th ed, 2004), 44-5.

8 David Freestone, Richard Barnes and David Ong (eds), The Law of the Sea, Progress and Prospects (2006), 12.

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