Sabtu, 29 Maret 2014

Legal regime of archipelagic states (2)

Legal regime of archipelagic states (2)

Nugroho Wisnumurti  ;   A former member of the Indonesian delegation to the UN Third Conference on the Law of the Sea and former Ambassador/permanent representative of Indonesia to the UN in New York and in Geneva. He is currently an Of Counsel at Ali Budiardjo, Nugroho, Reksodiputro (ABNR) Counselors at Law in Jakarta
JAKARTA POST, 28 Maret 2014
Efforts to galvanize support for archipelagic state principles were made in different forums outside the third UN Conference on the Law of the Sea, such as the Asia-Africa Legal Consultative Committee (AALCC), the group of developing countries (Group of 77) and ASEAN, which sent special missions to different countries.

These efforts continued to be pursued concurrently with a series of negotiations and lobbying during the sessions of the conference. A decisive factor that had also helped Indonesia’s success was a series of bilateral negotiations with neighboring countries and with major maritime states such as the US, UK, Soviet Union and Australia.

Negotiations with Malaysia had been focused on the rights of navigation through the waters connecting East Malaysia and West Malaysia, which would be cut off by the Indonesian waters, and on the existing fisheries rights in the Indonesian waters. Negotiations with Singapore and Thailand were concentrated on the traditional fisheries rights in and navigational rights through the Indonesian waters.

Difficult negotiations with Malaysia finally led to the agreement reached in 1982 under which Malaysia recognized the legal regime of archipelagic states while Indonesia recognized Malaysia’s existing rights in the Indonesian waters. The traditional fishing rights of Singapore and Thailand had been accommodated in the 1982 Convention.

Equally difficult were negotiations with major maritime states represented basically by the US and the Soviet Union. The focus of the negotiations was on the right of navigation of foreign vessels through the designated sea lanes and the overflight of foreign aircraft above the sea lanes in archipelagic waters, and also on the obligations of foreign vessels traversing the sea lanes and foreign aircraft flying above the sea lanes to respect the sovereignty and the national interest of the archipelagic state.

The last of the series of negotiations took place in 1977 in New York between the core members of the Indonesian delegation chaired by then foreign minister Mochtar Kusumaatmadja and the core members of the US delegation chaired by Ambassador Elliot L. Richardson, former US attorney general.

The negotiations that proceeded in a very tense atmosphere finally succeeded in reaching an agreement on certain outstanding crucial legal provisions, thereby completing the whole set of legal regimes on archipelagic state, later accepted by the conference.

It should be kept in mind that the negotiations on archipelagic states were closely related to negotiations and agreements reached on the legal regime of transit passage through straits used for international navigation, including the Malacca and Singapore straits.

The success of Indonesia’s diplomacy and negotiations to gain international recognition of archipelagic states could have not been achieved without the sustained systematic and integrated collective efforts of the various players. First and foremost was the pivotal role of the chairman of the Indonesian delegation, Prof. Kusumaatmadja, then Indonesian foreign minister and previously the justice minister.

It is also necessary to note the important role played by the three vice chairmen of the delegation, Ambassador Chaidir Anwar Sani, Ambassador Abdullah Kamil and Air Marshall Soedarmono. The significant contribution of the negotiators in the field, especially Dr. Djalal who acted as the chief negotiator, also deserves recognition.

It is also essential to recognize the important role of Pankorwilnas, a high level coordinating national committee chaired by Soedarmono, in building national consensus on issues before the conference.

It is in Pankorwilnas that the Indonesian position on various aspects of sovereignty and jurisdiction, maritime delimitation, natural resources, marine environments and marine scientific research were discussed and formulated and brought before the sessions of the conference.

It is worth mentioning also the importance of the doctrine “Wawasan Nusantara” (archipelagic outlook), developed especially by the National Resilience Institute (Lemhannas) to serve as a conceptual framework for the Indonesian position on archipelagic states. “Wawasan Nusantara” represents the national outlook of the nation on itself and its environment, which is essentially the national unity and territorial integrity of Indonesia.

The international recognition of the legal regime on archipelagic states significantly enlarged the Indonesian waters under its sovereignty and jurisdiction and has opened the opportunity for Indonesia to utilize these gains for its national development. Indonesia’s development has so far given too much emphasis to land-based development.

It is time now for the new government to complement it with maritime-based development through integrated strategies and policies, inter alia on inter-insular shipping (including cabotage), utilization of living and non-living marine resources, marine environments, marine scientific research and national defense.

For this purpose, it is necessary to establish a high level coordinating body like Pankorwilnas under the President, with a comprehensive mandate. This will be a challenge facing the new government.

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