HUKUM LAUT INTERNASIONALHUKUM LAUT INTERNASIONALALUR LAUT KEPULAUAN INDONESIA (ALKI)ALUR LAUT KEPULAUAN INDONESIA (ALKI)

FAKULTAS HUKUMFAKULTAS HUKUMUNIVERSITAS BRAWIJAYAUNIVERSITAS BRAWIJAYA

Dhiana Puspitawati, SH, LLM, PhDDhiana Puspitawati, SH, LLM, PhD

REJIM ALUR LAUT KEPULAUAN INDONESIAREJIM ALUR LAUT KEPULAUAN INDONESIA

Dengan diakuinya konsep negara kepulauan oleh masyarakat Dengan diakuinya konsep negara kepulauan oleh masyarakat internasional, kedaulatan negara kepulauan diperpanjang sampai internasional, kedaulatan negara kepulauan diperpanjang sampai perairan kepulauan perairan kepulauan subject tosubject to rejim alur laut kepulauan atau rejim alur laut kepulauan atau Archipelagic Sea Lanes Passage (ASLP) sebagaimana diatur Archipelagic Sea Lanes Passage (ASLP) sebagaimana diatur dalam pasal 53 LOSCdalam pasal 53 LOSC

Article 53 (2) defines ASLP as “the exercise in accordance with Article 53 (2) defines ASLP as “the exercise in accordance with this Convention of the rights of navigation and overflight in the this Convention of the rights of navigation and overflight in the normal mode solely by the purpose of continuous, expeditious normal mode solely by the purpose of continuous, expeditious and unobstructed transit between one part of high seas or an 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 and another part of the high seas or an exclusive economic zone”exclusive economic zone”

HISTORICAL BACKGROUND PEMBUATAN ALKI HISTORICAL BACKGROUND PEMBUATAN ALKI UTARA-SELATANUTARA-SELATAN

RATIFIKASI LOSC pada 3 FEBRUARY 1986 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 FORUM STRATEGI AL 1991—Proposal Tiga ALKI Utara-Selatan diajukandiajukan

CISARUA MEETING—awal 1995 oleh Deplu berdasarkan surat CISARUA MEETING—awal 1995 oleh Deplu berdasarkan surat dari Menteri PolHankam kepada Menlu No. dari Menteri PolHankam kepada Menlu No. B.153/Menko/Polkam/12/1994 tanggal 7 December 1995—B.153/Menko/Polkam/12/1994 tanggal 7 December 1995—proposal ALKI Utara-Selatan disetujui (domestically)proposal ALKI Utara-Selatan disetujui (domestically)

Konsultasi with IHO, user maritime States (UK, Japan, the USA Konsultasi with IHO, user maritime States (UK, Japan, the USA and Australia) and neighbouring States (Malaysia, Singapore and Australia) and neighbouring States (Malaysia, Singapore and Thailand)and Thailand)

Submission to IMO—a competence international organization Submission to IMO—a competence international organization under Article 53 (9) of UNCLOS—bahas bu ettyunder Article 53 (9) of UNCLOS—bahas bu etty

IMO’s competence in adopting ASL(s)IMO’s competence in adopting ASL(s)

Article 53 (9) LOSCArticle 53 (9) LOSC

Tidak ada satu pasalpun dalam LOSC yang menunjuk IMO Tidak ada satu pasalpun dalam LOSC yang menunjuk IMO sebagai ‘competence organization’ yg dimaksud dalam article 53 sebagai ‘competence organization’ yg dimaksud dalam article 53 (9) LOSC.(9) LOSC.

Article 39 (2) (a) LOSC merujuk ke COLREG (International Article 39 (2) (a) LOSC merujuk ke COLREG (International Regulation on Preventing Collision at Sea, annex VIII LOSC – Regulation on Preventing Collision at Sea, annex VIII LOSC – dalam bidang navigasi, polusi laut expert organisation a/ IMO – dalam bidang navigasi, polusi laut expert organisation a/ IMO – IMO’s competence is obviousIMO’s competence is obvious

Prof.Etty Agoes mempertanyakan bahwa kompetensi IMO Prof.Etty Agoes mempertanyakan bahwa kompetensi IMO hanyalah terbatas pada teknik navigasi kapal komersiil – no such hanyalah terbatas pada teknik navigasi kapal komersiil – no such limitationlimitation

PBB menunjuk IMO sbg organisasi yg kompeten lihat PBB menunjuk IMO sbg organisasi yg kompeten lihat IMO Doc. IMO Doc. MSC 67/7/3, 5 September 1996, MSC 67/7/3, 5 September 1996, Sea Lanes in archipelagic Sea Lanes in archipelagic waters: IMO Procedures for adopting archipelagic sea lanes waters: IMO Procedures for adopting archipelagic sea lanes under Article 53 (9) of the United Nations Convention on the Law under Article 53 (9) of the United Nations Convention on the Law of the Sea (UNCLOS), submitted by Australiaof the Sea (UNCLOS), submitted by Australia..

Article 1 of the Convention of Article 1 of the Convention of the International Maritime the International Maritime

OrganizationOrganization

““the purposes of the organizations the purposes of the organizations are (a)…to encourage and facilitate are (a)…to encourage and facilitate the general adoption of the highest the general adoption of the highest practicable standards in matters practicable standards in matters concerning maritime safety, concerning maritime safety, efficiency of navigation…” efficiency of navigation…”

The designation of archipelagic sea lanes is The designation of archipelagic sea lanes is closely related to maritime safety and closely related to maritime safety and efficiency of navigation. Therefore, all efficiency of navigation. Therefore, all inferences clearly point to giving the IMO the inferences clearly point to giving the IMO the responsibility to deal with the adoption of responsibility to deal with the adoption of ASLs proposals under LOSCASLs proposals under LOSC – traffic separation – traffic separation scheme o/ IMOscheme o/ IMO

For similar point of view see Batongbacal, Jay, For similar point of view see Batongbacal, Jay, “Barely Skimming the Surface: Archipelagic “Barely Skimming the Surface: Archipelagic Sea Lanes Navigation and the IMO”, in Elfrink, Sea Lanes Navigation and the IMO”, in Elfrink, A.G. Oude and Rothwell, Donald R (eds), A.G. Oude and Rothwell, Donald R (eds), Oceans Management in the 21st Century: Oceans Management in the 21st Century: Institutional Frameworks and ResponsesInstitutional Frameworks and Responses, , Koninklijke Brill NV, (2004), 49-68. Koninklijke Brill NV, (2004), 49-68.

The USA and Australia suggested that the Indonesia’s ASLs The USA and Australia suggested that the Indonesia’s ASLs should include the East/West navigational routes. – This is a should include the East/West navigational routes. – This is a reference to Article 53 (4) of UNCLOS which required the ASLs reference to Article 53 (4) of UNCLOS which required the ASLs to include all normal passage routes used for international to include all normal passage routes used for international navigation. navigation.

The informal agreement on rules to be applied in exercising the The informal agreement on rules to be applied in exercising the regime of ASLP through Indonesian Waters, known as “The 19 regime of ASLP through Indonesian Waters, known as “The 19 Rules”, was reached between the USA, Australia and Rules”, was reached between the USA, Australia and Indonesia.Indonesia.

The neighbouring States as well as the UK and Japan also the The neighbouring States as well as the UK and Japan also the IHO did not raise any crucial objection to the Three North/South IHO did not raise any crucial objection to the Three North/South ASLs.ASLs.

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

INDONESIA’S ASLs PROPOSED BY THEINDONESIA’S ASLs PROPOSED BY THE USUS

INDONESIA’S ASLs PROPOSED BY AUSTRALIAINDONESIA’S ASLs PROPOSED BY AUSTRALIA

ADOPTION OF THE PROPOSED INDONESIA’S THREE ADOPTION OF THE PROPOSED INDONESIA’S THREE NORTH/SOUTH ASLs BY THE IMONORTH/SOUTH ASLs BY THE IMO

The proposed Indonesia’s ASLs were adopted by the IMO on 19The proposed Indonesia’s ASLs were adopted by the IMO on 19thth May May 1998 within the General Provisions on the Archipelagic Sea Lanes 1998 within the General Provisions on the Archipelagic Sea Lanes Proposal (GPASL) as “Partial ASLs”—owing to the absence of the Proposal (GPASL) as “Partial ASLs”—owing to the absence of the east/west ASLs. east/west ASLs.

““Partial ASLs” is defined as archipelagic sea lanes proposal by an Partial ASLs” is defined as archipelagic sea lanes proposal by an archipelagic State, which does not meet the requirement to include all archipelagic State, which does not meet the requirement to include all normal passage routes and navigational channels as required by normal passage routes and navigational channels as required by UNCLOS.” (Par. 2.2.2. of the GPASL, IMO Doc. MSC 69/22/Add.1)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 Although the efforts made by Indonesia to implement Part IV of UNCLOS should be respected (Indonesia is the only archipelagic States who has should be respected (Indonesia is the only archipelagic States who has formally designated ASLs) , however, it was unfortunate for Indonesia to formally designated ASLs) , however, it was unfortunate for Indonesia to go ahead with the proposed ASLs which was not completego ahead with the proposed ASLs which was not complete

KASUS BAWEAN

KASUS BAWEAN

LOCATION OF BAWEAN INCIDENT OF 3LOCATION OF BAWEAN INCIDENT OF 3RDRD JULY 2003 JULY 2003

BAWEAN INCIDENTBAWEAN INCIDENT

According to Regulation 37/2002 Art. 3 and 15 the passage of USS 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 Carl Vincent though the east/west route should be under IP – this is in contrary with UNCLOS and Indonesia’s international position is in contrary with UNCLOS and Indonesia’s international position which allows the right of ASLP upon such routes.which allows the right of ASLP upon such routes.

According to UNCLOS, Indonesia’s international position, 19 According to UNCLOS, Indonesia’s international position, 19 Rules and GPASL explained above, it is the right of the USS Carl Rules and GPASL explained above, it is the right of the USS Carl Vincent to exercise ASLP through the east/west routes in the Vincent to exercise ASLP through the east/west routes in the absence of designated sea lane through such route. absence of designated sea lane through such route.

The disparity between Indonesia’s international and domestic The disparity between Indonesia’s international and domestic position poses a difficulty for transiting vessels.position poses a difficulty for transiting vessels.

INDONESIAN GOVERNMENT REGULATION NO. 37/2002INDONESIAN GOVERNMENT REGULATION NO. 37/2002

For the implementation of such adoption, Indonesia has For the implementation of such adoption, Indonesia has enacted Indonesian Regulation No. 37/2002 regarding the enacted Indonesian Regulation No. 37/2002 regarding the Rights and Obligations of Foreign Ships and Aircraft exercising Rights and Obligations of Foreign Ships and Aircraft exercising the Right of ASLP through designated ASLs the Right of ASLP through designated ASLs

Article 3 of Regulation 37/2002 stated:Article 3 of Regulation 37/2002 stated:““The rights of archipelagic sea lanes passage through other The rights of archipelagic sea lanes passage through other Indonesian waters can be exercised in accordance with this Indonesian waters can be exercised in accordance with this Regulation as soon as archipelagic sea lanes have been Regulation as soon as archipelagic sea lanes have been designated in those waters.”designated in those waters.”

Article 15 of Regulation 37/2002 stipulated:Article 15 of Regulation 37/2002 stipulated:““Six months after this government regulation was enforced, Six months after this government regulation was enforced, foreign ships and aircraft can exercise the right of archipelagic foreign ships and aircraft can exercise the right of archipelagic sea lanes passage sea lanes passage onlyonly through the designated Indonesian through the designated Indonesian archipelagic sea lanes as stipulated in this government archipelagic sea lanes as stipulated in this government regulation.” (Italics added)regulation.” (Italics added)

Those provisions implied that ships transiting through other Those provisions implied that ships transiting through other routes outside the three designated ASLs would be limited to routes outside the three designated ASLs would be limited to IP—this is in contrary with UNCLOSIP—this is in contrary with UNCLOS

UNCLOS AND 19 RULESUNCLOS AND 19 RULES

UNCLOS requires the designated sea lanes to include UNCLOS requires the designated sea lanes to include all normal passage routes used for international all normal passage routes used for international navigation and in the absence of the designated sea navigation and in the absence of the designated sea lanes, the right of ASLP can be exercised through lanes, the right of ASLP can be exercised through routes normally used for international navigation routes normally used for international navigation (Article 53 par. 4 and 12 of UNCLOS)(Article 53 par. 4 and 12 of UNCLOS)

Rule 19 of the 19 Rules stated: Rule 19 of the 19 Rules stated: Pending to the designation of other sea lanes through Pending to the designation of other sea lanes through other parts of the Indonesian archipelagic waters, the other parts of the Indonesian archipelagic waters, the right of archipelagic sea lanes passage may be right of archipelagic sea lanes passage may be exercised in the relevant archipelagic waters in exercised in the relevant archipelagic waters in accordance with the Law of the Sea Convention 1982 -– accordance with the Law of the Sea Convention 1982 -– This is a reference to the above pointThis is a reference to the above point

IMO DOCUMENTSIMO DOCUMENTS

GPASL par. 6. 7 (IMO Doc. MSC 69/22/Add.1):GPASL par. 6. 7 (IMO Doc. MSC 69/22/Add.1):““Where a partial archipelagic sea lanes proposal has come into Where a partial archipelagic sea lanes proposal has come into effect, the right of archipelagic sea lanes passage may be effect, the right of archipelagic sea lanes passage may be continue to be exercised through all normal passage routes used continue to be exercised through all normal passage routes used as routes for international navigation or overflight in other parts as routes for international navigation or overflight in other parts of archipelagic waters in accordance with UNCLOS.”—this is a of archipelagic waters in accordance with UNCLOS.”—this is a reference to Article 53 (4) and (12) of UNCLOSreference to Article 53 (4) and (12) of UNCLOS

IMO Doc. MSC 67/7/2 dated 30 August 1996 (Note by Indonesia), IMO Doc. MSC 67/7/2 dated 30 August 1996 (Note by Indonesia), par. 11:par. 11:““Pending the designation of other sea lanes through other parts Pending the designation of other sea lanes through other parts of the archipelagic waters, the right of sea lanes passage may be of the archipelagic waters, the right of sea lanes passage may be exercised in the relevant archipelagic waters in accordance with exercised in the relevant archipelagic waters in accordance with the Law of the Sea Convention 1982.”--this is a reference to the Law of the Sea Convention 1982.”--this is a reference to Article 53 (4) and (12) of UNCLOSArticle 53 (4) and (12) of UNCLOS

DISADVANTAGES OF PARTIAL ASLsDISADVANTAGES OF PARTIAL ASLs

Article 53 (12) stated “if an archipelagic State does not Article 53 (12) stated “if an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through the routes normally lanes passage may be exercised through the routes normally used for international navigation.”used for international navigation.”

Thus, ships may exercise the regime of ASLP through the Thus, ships may exercise the regime of ASLP through the east/west routes (currently there are three version of routes east/west routes (currently there are three version of routes normally used for international navigation through the normally used for international navigation through the east/west routes)—refer to mapeast/west routes)—refer to map

That way, the Indonesian archipelagic waters, especially the That way, the Indonesian archipelagic waters, especially the east/west routes will be widely openeast/west routes will be widely open

It would be very difficult for Indonesia to monitor the passage It would be very difficult for Indonesia to monitor the passage of foreign ships through its waters in order to provide and of foreign ships through its waters in order to provide and assist on the safety of navigation.assist on the safety of navigation.

INDONESIA’S REASONS TO EXCLUDE THE EAST/WEST INDONESIA’S REASONS TO EXCLUDE THE EAST/WEST ROUTESROUTES

CONCERN OF JAVA SEA, OVER WHICH TRADITIONAL FISHING CONCERN OF JAVA SEA, OVER WHICH TRADITIONAL FISHING GROUNDS AND AREAS OF EXPLOITATION AND EXPLORATION OF GROUNDS AND AREAS OF EXPLOITATION AND EXPLORATION OF NATURAL RESOURCES, INCLUDING OFF-SHORE OIL ARE LOCATED, NATURAL RESOURCES, INCLUDING OFF-SHORE OIL ARE LOCATED, BECOME OVER CROWDED WITH TRADING VESSELS. --- COMPARED TO BECOME OVER CROWDED WITH TRADING VESSELS. --- COMPARED TO ASLs I (SOUTH CHINA SEA TO SUNDA STRAIT), JAVA SEA IS LESS ASLs I (SOUTH CHINA SEA TO SUNDA STRAIT), JAVA SEA IS LESS CROWDED. MALUKU SEA (ASLs III) FISHERIES ACTIVITIES AS WELL AS CROWDED. MALUKU SEA (ASLs III) FISHERIES ACTIVITIES AS WELL AS EXPLORATION AND EXPLOITATION AND NATURAL RESOURCES ALSO EXPLORATION AND EXPLOITATION AND NATURAL RESOURCES ALSO EXISTS.EXISTS.

JAVA SEA CONTAINS OF SHALLOW SEA – THE USA HAVE ALWAYS JAVA SEA CONTAINS OF SHALLOW SEA – THE USA HAVE ALWAYS NAVIGATED THROUGH JAVA SEA AND FOUND NO DIFFICULTIES.NAVIGATED THROUGH JAVA SEA AND FOUND NO DIFFICULTIES.

SECURITY POINT OF VIEW—INDONESIAN ARMY TEND TO SEE THE SECURITY POINT OF VIEW—INDONESIAN ARMY TEND TO SEE THE DESIGNATION OF EAST/WEST ASLs WOULD ENDANGER THE DESIGNATION OF EAST/WEST ASLs WOULD ENDANGER THE SECURITY OF INDONESIA.SECURITY OF INDONESIA.

ADVANTAGES OF THE DESIGNATION OF EAST/WEST ADVANTAGES OF THE DESIGNATION OF EAST/WEST ASLsASLs

By designating the east/west ASLs, the passage of foreign ships By designating the east/west ASLs, the passage of foreign ships through the east/west routes is allocated to an exact sea lane through the east/west routes is allocated to an exact sea lane where the regime of ASLP can be exercised. where the regime of ASLP can be exercised.

This way, the monitoring of foreign ships will be a lot easier and it 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 will also a lot easier for Indonesia to assist the voyages of foreign ships traversing the archipelago.ships traversing the archipelago.

It would also easier for Indonesia to promote national security by It would also easier for Indonesia to promote national security by ensuring that foreign ships’ activities can be placed under ensuring that foreign ships’ activities can be placed under efficient and effective monitoring and surveillance.efficient and effective monitoring and surveillance.

INFORMAL INDONESIAN PROPOSAL ON THE INFORMAL INDONESIAN PROPOSAL ON THE EAST/WEST ASLsEAST/WEST ASLs

CONCLUSION AND RECOMMENDATIONCONCLUSION AND RECOMMENDATION

INDONESIA HAS DONE SIGNIFICANT EFFORTS TO IMPLEMENT INDONESIA HAS DONE SIGNIFICANT EFFORTS TO IMPLEMENT THE PROVISIONS OF PART IV OF UNCLOS, HOWEVER, WITH THE PROVISIONS OF PART IV OF UNCLOS, HOWEVER, WITH REGARD TO THE DESIGNATION OF ASLs, SUCH REGARD TO THE DESIGNATION OF ASLs, SUCH IMPLEMENTATION IS STILL UNSATISFACTORY OWING TO THE IMPLEMENTATION IS STILL UNSATISFACTORY OWING TO THE ABSENCE OF THE EAST/WEST ASL.ABSENCE OF THE EAST/WEST ASL.

INDONESIA SHOULD DESIGNATE THE EAST/WEST ASL IN THE INDONESIA SHOULD DESIGNATE THE EAST/WEST ASL IN THE SOONEST REALISTIC TIME IN ORDER TO MAKE SUCH ROUTES SOONEST REALISTIC TIME IN ORDER TO MAKE SUCH ROUTES CERTAIN AND THUS IT WOULD BE EASIER FOR INDONESIA TO CERTAIN AND THUS IT WOULD BE EASIER FOR INDONESIA TO MONITOR THE PASSAGE OF FOREIGN SHIPS.MONITOR THE PASSAGE OF FOREIGN SHIPS.