Jumat, 28 Maret 2014

Legal regimes of archipelagic states

Legal regimes of archipelagic states

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 a counsel at Ali Budiardjo, Nugroho, Reksodiputro (ABNR) Counselors at Law in Jakarta
JAKARTA POST,  27 Maret 2014
As we celebrate the 80th birthday of Prof. Hasjim Djalal, the renowned expert on the law of the sea, we are reminded of the long drawn-out struggle to gain international recognition for the legal regime of this archipelagic state.

It all started with the declaration of the Indonesian government in 1957 that the country’s territorial sea of 12 nautical miles was drawn from straight baselines connecting the outermost points of the outermost Indonesian islands, where the waters enclosed by the straight baselines are internal waters subject to Indonesia’s sovereignty while allowing the innocent passage of foreign vessels.

The declaration, widely known as the Djuanda Declaration of 1957, was later reaffirmed in the Government Regulation in lieu of Law No. 4/1960 on Indonesian territorial seas and Government Regulation No. 8/1962 on the innocent passage of foreign vessels.

The Djuanda Declaration of 1957 constituted a very important breakthrough in fostering Indonesia’s national interests in the fields of law, politics, economy, culture and the protection of territorial integrity and national unity. The major contributions of former prime minister Djuanda Kartawidjaja, then-veterans’ affairs minister Chaerul Saleh and Mochtar Kusumaatmadja, expert on the law of the sea, in this respect are widely recognized.

The Djuanda Declaration of 1957 was immediately opposed by major maritime states like the United States, United Kingdom, Soviet Union as well as the Netherlands and Australia, which considered the declaration to be in violation of international laws on freedom of navigation.

The first attempt to gain international recognition of the archipelagic state principles was at the first UN Conference on the Law of the Sea in Geneva in 1958. The Indonesian delegation at the conference was chaired by Achmad Soebardjo, Indonesian Ambassador to Switzerland and former foreign minister. The efforts by Indonesia and the Philippines at the conference failed. Likewise, their attempts at the second conference in 1960 ended in failure.

Indonesian diplomacy gained momentum when the UN held the third conference. The conference, initiated on the basis of a proposal by ambassador Arvid Pardo, permanent representative of Malta to the UN, was originally to be convened to regulate the use of mineral resources on the seabed beyond the national jurisdiction, which constitute “common heritage of mankind”.

Finally it was agreed that the mandate of the third conference would include a review of the Geneva conventions of 1958 on territorial seas, the high seas, fisheries and the continental shelf.

The conference also considered the jurisdiction of coastal states on the living resources beyond national jurisdiction (that eventually led to the adoption of the legal regime of the Exclusive Economic Zone, or EEZ), as well as the rights of transit passage through straits used for international navigation. As a result of the joint diplomacy by Indonesia and the Philippines, the legal regime of archipelagic states was added to the agenda of the conference.

Indonesia’s diplomacy and negotiations had been long drawn-out, facing difficult challenges, from the time that Indonesia became a member of the preparatory committee of the conference, known as the “Seabed Committee” (1970-1973), until the adoption of the Convention on the Law of the Sea in 1982.

On March 22, 1971, the Indonesian delegation to the Seabed Committee, chaired by ambassador Umarjadi Notowijono, permanent representative of Indonesia to the UN in Geneva, as well as Kusumaatmadja as vice chairman, reintroduced the concept of archipelagic state. Subsequently, Indonesia collaborated with the Philippines, Fiji and Mauritius as the so-called archipelagic states group. The group for the first time submitted to the Seabed Committee three principles on archipelagic states, as contained in a 1973 document of the Seabed Committee.

The diplomatic struggle continued at the third conference, the first session of which was held in Caracas and lasted for three months, the longest ever session of an international conference.

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