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Jakarta Post

The archipelagic-state concept a quid pro quo

  • Damos Dumoli Agusman and Gulardi Nurbintoro

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Jakarta   /   Sat, December 14, 2019   /   01:37 pm
The archipelagic-state concept a quid pro quo Eden Charles (centre), Chargé d´affaires at the Permanent Mission of Trinidad and Tobago to the UN and Chair of the Preparatory Committee for the development of an international legally binding instrument under the United Nations Convention on the Law of the Sea (UNCLOS) on the Conservation and Sustainable Use of marine biological diversity of areas beyond national jurisdictions (BBNJ), briefs journalists on the on the occasion of the first meeting of the Preparatory Committee. (UN Photo/Rick Bajornas)

On Dec. 13, 1957, then-prime minister Djuanda Kartawidjaja declared that Indonesia drew baselines connecting the outermost points of Indonesia’s outermost islands. The waters within the baselines should then fall within Indonesia’s sovereignty as internal waters with innocent passage for foreign vessels permissible.

The Djuanda Declaration, as it became known, rejected the traditional concept of drawing a baseline surrounding each island disregarding the archipelagic nature of a country. This latter ancient method had left countries like Indonesia vulnerable to foreign threats as pockets of international waters existed between Indonesian islands.

Djuanda’s “unilateral” declaration born 62 years ago was met with numerous protests from foreign countries, particularly those with major interests in maritime navigation. Indonesia’s brightest scholars and diplomats were immediately called upon to devise a strategy to counter these protests while simultaneously seeking international recognition for the archipelagic-state concept.

A prominent international law professor, Mochtar Kusumaatmadja, then translated the Djuanda political declaration into a legal concept, which was inspired by the straight baseline ruling of the 1951 Anglo–Norwegian Fisheries Case at the International Court of Justice, making it more acceptable to many international lawyers.

Acceptance by international lawyers alone was certainly not enough. Indonesia had to persuade countries to recognize its archipelagic-state concept. The attempts to seek recognition in the first and second United Nations Conference on the Law of the Sea (UNCLOS) were not particularly successful.

Through sheer determination and formidable diplomacy, Indonesia’s negotiators were able to get the issue of the archipelagic state discussed as a separate agenda item in the third conference in 1973.

These tireless efforts bore fruit when the archipelagic-state concept was successfully adopted into part 4 of the 1982 UNCLOS. Indonesia was now entitled to draw an archipelagic baseline connecting its outermost points of its outermost islands as demanded by the declaration. The waters within the baseline became archipelagic waters, within the full sovereignty of the archipelagic state.

The mission was accomplished. It was one of the greatest achievements in the history of Indonesian diplomacy. It did not come, however, without a price. As in any negotiation, the quid pro quo, or give-and-take, process not only took place but was the apparent “rule of the game” characterizing the UNCLOS negotiations. So did Indonesia get everything that the Djuanda Declaration wanted? If not, what was the “quid” that was granted for gaining the “quo”?

Certainly, Indonesia could not get all it wanted. The archipelagic concept as adopted in the Convention had slight differences.

There are at least three “quids” granted to the international community (including to our neighbors) in exchange for the “quo” of being recognized as an archipelagic state.

The first was the right of archipelagic sea lane passage as stated in Article 53 of UNCLOS. This is the right granted to all ships and aircrafts to navigation and overflight through specific sea lanes and air routes in the archipelagic waters. Another two “quids” were for our neighbors. The second is stated in Article 51, which stipulates that an archipelagic state must “recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighboring countries in certain areas falling within archipelagic waters”.

This particular article was proposed by Indonesia’s neighbors. It was initially submitted by Thailand and was eventually taken over by Singapore, whose interests were at stake. The wording of this provision was the outcome of a joint proposal by Indonesia and Singapore during the 1976 convening of UNCLOS.

Furthermore, Article 47 paragraph 6 was a third “quid” to accommodate Malaysia’s interests. It stipulates that an archipelagic state should respect existing rights and other legitimate interests when archipelagic waters lie between two parts of an immediately adjacent neighboring state.

This fitted the situation of Malaysia, where archipelagic waters, as the result of drawing the archipelagic baseline, lie between Peninsular Malaysia and Sabah.

These provisions did not exist in the Djuanda Declaration but were later incorporated into the UNCLOS as a compromise.

This shows the inevitable regard for the interests of other countries, which were affected by the new emergence of the archipelagic-state concept. Indonesia had to accept certain proposals in order to gain its recognition.

As the convention entered into force, it was thus incumbent upon all states, archipelagic and non-archipelagic, to respect the above “quid pro quos”. As a beneficiary of UNCLOS, Indonesia deserves to celebrate the “quo” it painstakingly gained. Indonesia not only acquired archipelagic-state status but was further entitled to expand its maritime zones from its archipelagic baselines. Indonesia should also respect the “quids” that it promised under the Convention.

As we commemorate the 62nd anniversary of the Djuanda Declaration, Indonesians, especially the younger generation, should have proper knowledge and perspective about how the archipelagic-state concept came about and the price paid for gaining that recognition, so we can better preserve this legacy for generations to come.

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The writers have been involved as negotiators for maritime boundary delimitation with the Foreign Ministry.

Disclaimer: The opinions expressed in this article are those of the author and do not reflect the official stance of The Jakarta Post.