ARCHIPELAGIC SEA LANES PASSAGE
\nAND MARITIME SECURITY
\nIN ARCHIPELAGIC SOUTHEAST ASIA<\/p>\n
ABSTRACT
\nTitle of Dissertation: Archipelagic Sea Lanes Passage and Maritime Security
\nin Archipelagic Southeast Asia
\nDegree: Master of Science
\nThis dissertation examines the regimes of archipelagic waters and archipelagic
\nsea lanes passage in the context of the two primary proponents of the archipelagic
\nprinciple in the United Nations Convention on the Law of the Sea, in light of new
\ndevelopments in maritime security.
\nThe assessment undertaken in this dissertation deals with the unprecedented
\nefforts of the Philippines and Indonesia to persuade the international community to
\nrecognize the archipelagic concept, that a group of islands and the waters around,
\nbetween and connecting the islands belong to one state should be treated as one single
\nentity for the purpose of delimiting the maritime zone to achieve prosperity and
\ndevelopment free from external pressure. In order to uphold the traditional freedom of
\nnavigation of the international community in seeming opposition to the concept, the
\nright of archipelagic sea lanes passage through archipelagic waters was granted to
\nforeign vessels. This concession was given for purposes of reconciling the conflicting
\ninterests in a manner acceptable to all concerned.
\nChapter IV highlights the experience of Indonesia, as the first archipelagic state
\nto designate archipelagic sea lanes passage while Chapter V looks at the concerns of the
\nPhilippines with regard to the issue of designating such sea lanes.
\nThe concluding chapters contain an analysis of the factors influencing the
\ndesignation and the exercise of the right of archipelagic sea lanes passage, and an
\niv
\nassessment of whether the compromise results in a balance. Relevant recommendations
\nare made with regard to Indonesia and the Philippines.
\nKEYWORDS: Archipelago, Archipelagic States, Archipelagic Waters,
\nArchipelagic Sea Lanes Passage, UNCLOS<\/p>\n
v
\nTABLE OF CONTENTS
\nDECLARATION ——————————————————————— i
\nACKNOWLEDGEMENT ———————————————————– ii
\nABSTRACT ————————————————————————— iii
\nLIST OF ABBREVIATIONS ——————————————————- vii
\nLIST OF FIGURES AND TABLES ———————————————– viii
\nCHAPTER I – INTRODUCTION ———————————————– 1
\nCHAPTER II – THE ARCHIPELAGIC REGIME —————————- 9
\n2.1 Development of the Regime under UNCLOS 1982 ————- 9
\n2.2 Concept of Archipelagic State ————————————– 15
\n2.3 Struggles to Gain Recognition of the
\nArchipelagic Principles —————————————— 19
\nCHAPTER III – BOUNDARY SETTING IN RELATION TO SECURITY 24
\n3.1 Archipelagic Boundary Delimitation ——————————- 25
\n3.2 Introduction of Archipelagic Sea Lanes Passage (ASLP) —— 30
\n3.3 Aspects of the Right of Archipelagic Sea lane Passage ——— 33
\n3.4 Maintaining Territorial Integrity ———————————– 38
\nCHAPTER IV – INDONESIA\u2019S COMPLIANCE —————————— 40
\n4.1 The Indonesian Submission —————————————– 43
\n4.2 The User States\u2019 Perceptions on
\nIndonesia\u2019s Partial ASLP Designation ————————— 46
\n4.3 Present Interpretation of Archipelagic
\nSea Lanes Passage ———————————————— 49
\n4.4 Factors Affecting the Archipelagic Sea Lanes —————— 50
\nCHAPTER V – THE PHILIPPINES OUTSTANDING CONCERNS ——- 53
\n5.1 Perspective as an Archipelagic State ——————————- 55
\n5.2 Philippines Archipelagic Sea Lanes Proposal ——————– 56
\nvi
\n5.3 Issues Covering the Philippine Proposal ————————– 59
\n5.3.1 Legal Issues ————————————————– 59
\n5.3.2 Environmental Issues ————————————– 61
\n5.3.3 Major Maritime Security Issues ————————– 62
\nCHAPTER VI – MARITIME SECURITY CHALLENGES —————— 66
\n6.1 Facing Maritime Threats ——————————————— 68
\n6.1.1 Maritime Terrorism —————————————– 70
\n6.1.2 Piracy and Maritime Terrorism ————————— 71
\n6.2 Securing Maritime Domain —————————————— 73<\/p>\n
6.3 Advantages of ASLP ————————————————– 77
\nCHAPTER VII – CONCLUSION ————————————————– 80<\/p>\n
BIBLIOGRAPHY ——————————————————————– 83<\/p>\n
ANNEXES
\nAnnex 1. Adoption of Amendments to the General Provisions
\nof Ships\u2019 Routeing
\n(RESOLUTION A.572(14), as amended) —————- 89
\nAnnex 2. Resolution MSC 72(69) ————————————- 96
\nAnnex 3. Government Decree No. 37\/2002 ————————- 108
\nAnnex 4. IMB Piracy Prone Areas and Warnings —————– 129
\nAnnex 5. IMB Report January – March 2005 to 2010 ———— 130
\nvii
\nLIST OF ABBREVIATIONS
\nASL archipelagic sea lanes
\nASLP archipelagic sea lanes passage
\nASL I Archipelagic Sea Lanes Passage I (Indonesia)
\nASL II Archipelagic Sea Lanes Passage II (Indonesia)
\nASL III Archipelagic Sea Lanes Passage III (Indonesia)
\nALKI Alur Laut Kepulauan Indonesia
\nEEZ exclusive economic zone
\nGPASLP General Provisions for the Adaption, Designation and Substitution
\nof Archipelagic Sea Lanes Passage
\nIMB International Maritime Bureau
\nIMO International Maritime Organization
\nMSC Maritime Safety Circular
\nRA Republic Act
\nRECAAP Regional Cooperation Agreement on Combating Piracy and
\nArmed Robbery against Ships in Asia
\nUN United Nations
\nUNCLOS United Nations Convention on the Law of the Sea, 1982
\nUNCLOS I The First United Nations Conference on the Law of the Sea,
\n1958, Geneva
\nUNCLOS II The Second United Nations Conference on the Law of the Sea,
\n1960, Geneva
\nUNCLOS III The Third United Nations Conference on the Law of the Sea
\n1973-1982
\nUS United States of America
\nviii
\nLIST OF FIGURES AND TABLES
\nFIGURES
\nFigure 1 Map of the Republic of Indonesia
\nFigure 2 Indonesian Archipelagic Sea Lanes Passage I, II, III
\nFigure 3 Philippine Proposed Archipelagic Sea Lanes Passage
\nFigure 4 Map of Southeast Asia Transit Region
\nTABLES
\nTable 1 Estimate of Ship Movements Passing through World\u2019s
\nShipping Lanes Relating to Australia\u2019s Trade 2004-05
\nTable 2 Estimate of Australia\u2019s Trade Passing Through World\u2019s
\nShipping Lanes 2004-05
\n1
\nCHAPTER I
\nINTRODUCTION
\nOne of the oldest and most recognized principles governing ocean space is
\nfreedom of the sea enshrined in the chapter \u2018De Mare Liberum\u2019 of Hugo Grotius\u2019s \u2018De
\nIure Praedae\u2019.1
\nThe principle upholds the free use of the sea for commercial purposes
\nand at the same time rejects the claim of exclusive use and possible establishment of
\nsovereignty over parts of the sea.2
\nIt overshadowed national interests in coastal fisheries
\nand most of the extravagant claims to maritime sovereignty were abandoned.3<\/p>\n
During post World War II period, Grotius\u2019s approach to freedom of the seas
\nbegan to be limited by claims of coastal states to sovereign rights over waters adjacent to
\ntheir coast. 4 Claims to historic bays and archipelagic waters were among the few
\nexceptional cases to this principle.5
\nThe codification of the United Nations Convention
\non the Law of the Sea of 10 December 1982 (UNCLOS 1982) gave way to expand the<\/p>\n
1
\nR\u00fcdiger Wolfrum, Freedom of Navigation: New Challenges in Myron H. Nordquist, Tommy T.B. Koh
\nand John Norton Moore (Editors), Leiden: Martinus Nijhoff Publishers, 2008 at p. 79
\n2
\nKarl Zemanek, Was Hugo Grotius Really in Favour of the Freedom of the Seas? Journal of the History
\nof International Law Vol.1 No.1 1999 at pp. 48-60
\n3
\nR.R. Churchill and A.V. Lowe, The Law of the Sea, 3rd Edition, Manchester: Manchester University
\nPress, 1999 at p. 204
\n4
\nAgustin Blanco-Bazan, Freedom of Navigation: An Outdated Concept? Background concepts to the
\nlecture delivered by Dr. Agust\u00edn Blanco-Baz\u00e1n at the IFLOS Summer Academy on 17 August 2007
\nhttps:\/\/monkessays.com\/write-my-essay\/iflos.org 3 August 2010 5 Supra, footnote 3 at p. 205
\n2
\nlaw of the sea to recent developments concerning the interests of individual groups of
\nstates and the international community as a whole.6<\/p>\n
UNCLOS 1982 created a new regime for the sea-bed and the ocean floor and
\nsubsoil thereof, beyond the limits of national jurisdiction; a special regime for
\narchipelagic waters was introduced and increasingly recognized along with other ground
\nbreaking principles in international law.7
\nThe regimes of archipelagic waters and midocean archipelagos are perhaps some of the most difficult and complex problems in
\ninternational law considering that geopolitics, economics and security interests as well
\nas countless of attendant factors posed a monumental challenge.8<\/p>\n
The archipelagic states in Southeast Asia, the Philippines and Indonesia, pressed
\nthe international community for some time to recognize their right to establish a system
\nof straight baselines around their archipelago.9
\nThe geographical features of these two
\nstates can be described as landmasses connected by waters. Both states regard the waters
\nlandward of territorial sea as extensions of land territory. The seas around, between and
\nconnecting the landmasses need to be governed similarly to land territory. Their primary
\nconsideration for the recognition of the archipelagic principle is the preservation of the
\nintegrity of the archipelago.10 Another concern is directed at the presence in their waters
\nof ships with special characteristics such as warships, surveillance vessels, unauthorized
\nfishing vessels and vessels engaged in the carriage of contraband.11 For the reason that
\nthe Philippine and Indonesia lie in the crossroads of the Indian and Pacific Oceans, the
\ngeographical locations of these two major archipelagos constitute a barrier for maritime<\/p>\n
6
\nBudislav Vukas, Law of the Sea: Selected Writings, Leiden: Brill Academic Publishers, 2004 at p. 263
\nhttp:\/\/site.ebrary.com\/lib\/wmulib 3 August 2010 7 Ibid. 8
\nHiran W. Jayewardene, The Regime of Islands in International Law, AD Dordrecht: Martinus Nijhoff
\nPublishers, 1990 at p. 103
\n9
\nE. D. Brown, International Law of the Sea, Aldershot: Dartmouth Publishing Company, 1994 at p. 20 10 Supra, footnote 8 at p. 103 11 Ibid., at p. 112
\n3
\nmovement between the two great oceans.12 Also, most of the major straits in Southeast
\nAsia pass through the waters of either of these two states.13
\nUnder the archipelagic regime, the traditional high seas freedom of navigation
\nbetween islands of the archipelagic state has been replaced by a sui generis legal regime
\nunder archipelagic waters. 14 The establishment of baselines enclosing the entire
\narchipelago would regard the waters in, between and around the islands and extending
\noutward from the perimeter boundary line as forming part and parcel of the territory of
\nthese archipelagic states. 15 This very concept was opposed by the international
\ncommunity particularly by maritime powers that needed unrestricted freedom for their
\nnavies because of the crucial importance of free navigation of submarines to their
\ninterests.16 Their concerns stem from the fundamental concept of freedom of the sea
\nderived from customary law. The high seas are free and open to the use of all nations
\nand channels traditionally used for international shipping, where the right of free passage
\nhave been present and exercised long before, should be respected. 17 Further, this
\nsituation poses a threat to international navigation in the waters that would be enclosed
\nby the straight baselines drawn around the outermost islands of archipelagos.18
\nIn view of the complexity of the problem, a major compromise was made in
\nfavour of inclusive interests, which permitted the right of passage through archipelagic
\nwaters.19 Two rights of passage were granted to third states within the archipelagic<\/p>\n
12 Mark J. Valencia and James Barney Marsh, Access to Straits and Sea lanes in Southeast Asian Seas:
\nLegal, Economic and Strategic Considerations, Journal of Maritime Law and Commerce, Vol. 16 No. 4
\n1985 at p. 513 13 Barbara Kwiatkowska, Archipelagic Regime in the Philippines and Indonesia, International Journal of
\nEstuarine and Coastal Law, Vol. 6 No. 1 1991 at p. 30
\nhttps:\/\/monkessays.com\/write-my-essay\/ingentaconnect.com\/content\/mnp\/ijec\/1991 7 July 2010 14 Supra, footnote 13 at p. 2 15 Supra, footnote 8 at p. 104 16 Ibid., at pp. 112-113 17Ibid., at p. 112 18 Mohamed Munawar, Ocean States, Archipelagic Regimes in the Law of the Sea, AD Dordrecht:
\nMartinus Nijhoff Publishers 1995 at p. 10
\n19 Supra, footnote 8 at p. 55
\n4
\nwaters: the right of innocent passage and a newly defined right of archipelagic sea lanes
\npassage.20 Innocent passage is for transit by ships through all other archipelagic waters
\nexcept for internal waters of an archipelagic state; whereas archipelagic sea lanes
\npassage is for transit by ships and aircraft in the designated sea lanes or through routes
\nnormally used for international navigation. 21 The right of innocent passage can be
\nsuspended whenever it is essential for the protection of the security of the archipelagic
\nstate 22 whereas, the right of archipelagic sea lanes passage is a non-suspendable right. 23
\nIt reflects a level of freedom of passage by foreign shipping \u2013 with an arguably high seas
\ncharacter akin to those guaranteed under the regime of straits used for international
\nnavigation. 24 Passage under this regime is concerned with transit and carries no
\nrequirement of innocence.25 It also allows transit in \u2018normal mode\u2019, which includes
\nsubmerged submarine transit, flight operations by aircraft carriers, and the undertaking
\nof all usual shipboard activities and security measures.26 Johnson pointed out that this
\nadditional freedom is very significant to military vessels and aircrafts and considered as
\none of the principal concessions granted by archipelagic states to third states in the
\nnegotiation process.27 This compromise is intended to create a balance between the
\narchipelagic states, with regard to their interests to exercise sovereignty over adjoining
\nwaters, and international community as the user states or third states on their desire to<\/p>\n
20 Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World, Leiden: Martinus
\nNijhoff Publishers at p. 12
\n21 Satya N. Nandan and Shabtai Rosenne, United Nations Convention on the Law of the Sea 1982 A
\nCommentary, AD Dordrecht: Martinus Nijhoff Publishers, 1993 at p. 401 22 Supra, footnote 20 at p. 12 23 Constance Johnson, A Right of Passage: the IMO Consideration of the Indonesian Archipelagic Sea
\nLanes Submission, The International Journal Of Marine and Coastal Law, Vol. 15 No. 3 2000 at p. 319 24 Timothy C. Perry, Blurring the Ocean Zones: The Effect of the Proliferation Security Initiative on the
\nCustomary International Law of the Sea, Ocean Development & International Law 2006, Vol. 37 No.1 at
\npp. 33-53
\n25 Supra, footnote 23 at p. 318 26 Stuart Kaye, Freedom of Navigation in the Indo-Pacific Region, Papers in Australian Maritime Affairs
\nNo.22 2008 at p.33 https:\/\/monkessays.com\/write-my-essay\/navy.gov.au\/publication 25 July 2010 27 Supra, footnote 23
\n5
\nretain historical freedom of the seas. Consequently, the specialized passage regime for
\narchipelagic sea lanes was codified in Part IV Article 53 of UNCLOS 1982.
\nPrescott states that \u201conce a coastal state has declared archipelagic status it places
\nupon itself considerable responsibilities to the international community, perhaps the
\ngreatest of which is the right of archipelagic sea lanes passage for international routes
\nthrough the archipelago.\u201d28 Presently, among the claimants of archipelagic status, it is
\nonly Indonesia that has designated archipelagic sea lanes. In 1996 Indonesia submitted a
\nproposal to the International Maritime Organization (IMO)29 for the adoption of various
\nsea lanes and air routes covering north-south routes through and over its archipelagic
\nwaters.30 The absence of other routes used for international navigation specifically the
\neast-west route led to significant international protests from maritime states, including
\nAustralia, the United States, the United Kingdom and Japan. 31 In this regard, the
\nproposal was regarded only as partial designation and other archipelagic sea lanes will
\nbe required to satisfy the requirements of IMO.32 Also, it leaves the way open for user
\nstates to regard any route used for international navigation as available for archipelagic
\nsea lanes passage. 33 Although it was held by IMO as a partial designation, it was
\nsubsequently approved on May 1998 and duly entered into force through Indonesian
\nGovernment Decree No. 37\/2002 dated 22 June 2002.
\nOn the other hand, the Philippines has yet to submit a similar proposal to IMO
\nalthough it has already identified the routes where archipelagic sea lanes will be
\ndesignated. There are legal issues surrounding the case of the Philippines considering<\/p>\n
28 Supra, footnote 20 at p. 12 29 A specialized agency of the United Nations with main tasks of developing and maintaining a
\ncomprehensive regulatory framework for shipping , safety, environmental concerns, legal matters,
\ntechnical co-operation, maritime security and the efficiency of shipping. https:\/\/monkessays.com\/write-my-essay\/imo.org 10 July 2010 30 Supra, footnote 23 at p. 317 31 Supra, footnote 16 at p. 16 32 Supra, footnote 20 at p. 13 33 Supra, footnote 16 at p. 16
\n6
\nthat it regards the archipelagic waters as internal waters.34 This implies that rights of
\ninnocent passage and archipelagic sea lanes passage may not be recognized in these
\nwaters. It has not also enacted legislation to govern routes used for international
\nnavigation. Be that as it may, its state practice complies with the requirements of
\nUNCLOS 1982 in terms of allowing passage of foreign vessels through its archipelagic
\nwaters.35
\nUnder UNCLOS 1982, an archipelagic state is not required to designate
\narchipelagic sea lanes. Should it choose to do so, however, it shall cover all routes used
\nfor international navigation. UNCLOS also provides that if no archipelagic sea lanes are
\ndesignated, the right of passage may be exercised through routes normally used for
\ninternational navigation. Given that the right of archipelagic sea lanes passage is nonsuspendable under any circumstances, different factors that may affect the designation or
\nnon-designation of these sea lanes, primarily the security of such sea lanes, their
\nadjacent coasts and waters, and that of the state itself, will be the very focus of this
\nstudy.
\n1.1 Objective and Significance of the Study<\/p>\n
The events of September 11 changed the perception of the world to terrorism and
\nincreased the concern of all states with regard to their national security. This is
\nillustrated by the notion that terrorists can turn ordinary means of transportation into
\ndevastating weapon against wide variety of targets, not only governmental but also
\neconomic lifelines.36 A large percentage of the global economy is facilitated through the<\/p>\n
34 Supra, footnote 13 at p. 4 35 Mary Ann Palma, The Philippine as an Archipelagic and Maritime Nation: Interests, Challenges and
\nPerspective, RSIS Working Paper 2009 at p. 7 https:\/\/monkessays.com\/write-my-essay\/rsis.edu.sg\/publication 25 June 2010 36 Catherine Zara Raymond, Maritime Terrorism, A Risk Assessment: The Australian Example in Joshua
\nHo and Catherine Zara Raymond (Editors) The Best of Times, The Worst of Times, Nanyang: Institute of
\nDefence and Strategic Studies 2005 at p. 184
\n7
\nsea which makes shipping and seaborne trade attractive targets for terrorist attacks. This
\nvulnerability is aggravated by difficulties of enforcement both in port and at sea and
\nquantities of cargo involved which could be exploited by terrorist to launch an attack on
\nshipping and port infrastructure that could cause massive economic disruption.37
\nA significant volume of world trade, particularly those between East Asia and the
\nrest of the world, passes through the important sea lanes and international routes of
\nIndonesia and the Philippines. Any maritime threat that would result in the blocking of
\nstraits and international routes would affect the global economy and security of maritime
\ndomain of the archipelagic state. With this development, the maritime security concerns
\nof these two archipelagos have increased further. For a long period of time, both states
\nhave been facing challenges regarding their respective strategic straits, sea lanes and
\nother parts of the maritime domain. These challenges are brought about by the threats of
\npiracy38, armed robbery against ships39 and maritime terrorism along with other crimes
\ncommitted through the use of the sea. They also deal with the issue of intrusion of
\nforeign vessels on their waters as a result of varying interpretation by third states of the
\nstatus of archipelagic waters and sea lanes passage. Taking into consideration these
\nchallenges, this dissertation sets the following objectives:
\n1. Assess the importance of archipelagic sea lanes to the archipelagic states and
\nthe relevance of same to modern day maritime security concerns;<\/p>\n
37 Sam Bateman, Assessing the Threat to Maritime Terrorism: Issues for Asia-Pacific Region, Security
\nChallenges Vol. 2 No. 3 2006 at p. 78 https:\/\/monkessays.com\/write-my-essay\/securitychallenges.org.au 12 July 2010 38 Article 101 UNCLOS – (a) any illegal acts of violence or detention, or any act of depredation,
\ncommitted for private ends by the crew or the passengers of a private ship or a private aircraft, and
\ndirected:(i) on the high seas, against another ship or aircraft, or against persons or property on board such
\nship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any
\nState; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of
\nfacts making it a pirate ship or aircraft;(c) any act of inciting or of intentionally facilitating an act
\ndescribed in subparagraph (a) or (b).
\n39 International Maritime Bureau definition -Armed Robbery Against Ship \u2013 any unlawful act of violence
\nor detention or any act of depredation or threat thereof, other than act of piracy directed against a ship or
\nagainst persons or property on board such ships, within a state\u2019s jurisdiction over such offences.
\n8
\n2. Determine whether the right of archipelagic sea lanes passage affect
\nterritorial integrity of the archipelagic states;
\n3. Evaluate whether the designation is necessary to have a systematic
\nmanagement of passage for foreign vessels through the archipelagic waters;
\n4. Examine the so called balance of interests between archipelagic states and the
\nuser states relative to the designation of archipelagic sea lanes;
\n5. Attempt to recommend measures relevant to the present status of the two
\nbiggest archipelagic states.
\n1.2 Areas Covered and Research Method Applied
\nThis study will trace the historical development of the archipelagic regime under
\nUNCLOS 1982 in which the right of archipelagic sea lanes passage was introduced. In
\nanalyzing the rationale for Article 53 (Right of Archipelagic Sea Lanes Passage), it is
\nnecessary to look into state practices, experience of Indonesia in complying Article 53
\nand the preliminary concerns of the Philippines in holding in abeyance the
\nimplementation of this Article, in the light of the new developments in maritime
\nsecurity.
\nThe research method applied in this study involves qualitative research in order
\nto analyze the concept and entire framework of designation of archipelagic sea lanes and
\nits impact on both the archipelagic states and the user states or third states. Literature
\nreviewed in this regard included academic books, journal articles, thesis, conference
\npapers and reports. Also utilized were articles taken from online libraries, relevant texts
\nfrom internet websites and newspapers, concerning information that is not readily
\navailable in the WMU library. Interviews to the government officials of either the
\nPhilippines or Indonesia dealing with maritime security issues were not conducted due
\nto lack of material time.
\n9
\nCHAPTER II
\nARCHIPELAGIC STATE REGIME
\n2.1 Development under United Nations Convention of the Law of the Sea
\nThe great efforts to draft a text on the special status for archipelagos started as
\nearly as the 1920s where the concept had been suggested in different international fora,
\nsuch as the International Law Association, the Institute of International Law and the
\nAmerican Institute of International Law. It was also discussed at the Hague Codification
\nConference of 1930 but without conclusive results because technical information on the
\nmatter was inadequate. 40 The question of archipelagos particularly that of coastal
\narchipelagos was taken up mostly in connection with the question of coastal baseline.41
\nIt was first raised in the Institute de Droit International and was discussed only
\nin 1927 and 1928 where the following proposals were made by the Fifth Committee. 42
\nWhere a group of islands belong to one coastal State and where
\nthe islands of the periphery of the group are not further apart
\nfrom each other than the double breadth of the marginal sea, this
\ngroup shall be considered a whole and the extent of the marginal
\nsea shall be measured from a line drawn between the outermost
\nparts of the island.
\nWhere archipelagos are concerned, the extent of the marginal
\nsea shall be measured from the outermost island or islets<\/p>\n
40 Supra, footnote 21 at p. 399 41 UN DOALOS Legislative History of Part IV UNCLOS, New York: United Nations 1990 at p. 1 42 Supra, footnote 9 at p. 102
\n10
\nprovided that the archipelago is composed of islands and islets
\nnot further apart from each other than twice the breadth of the
\nmarginal sea and also provided that the islands and islets nearest
\nto the coast of the mainland are not situated further out than
\ntwice the breath of the marginal sea.
\nWhile the question on archipelagos was also considered by the International Law
\nAssociation (ILA), the proposal in this regard did not provide for the permissible
\ndistance between the islands of archipelagos but only states that \u201cthe islands thereof
\nshall be considered as a whole and the extent of the territorial waters laid down in article
\n4 shall be measured from the islands situated most distant from the centre of the
\narchipelago\u201d. 43 Similarly, the proposal of American Institute of International Law
\npublished in 1926 did not lay down the maximum distance but only provides that in case
\nof archipelago, the islands and keys composing it shall be considered as forming a
\nunit.44 The subject was also not dealt with in the Plenary of The Hague Codification
\nConference in 1930 although a proposed article thereof was drafted. 45 Seemingly, after a
\nconsiderable debate on the issue of whether the rule that every island can generate a
\nterritorial sea should apply to a group of islands or whether there should be a special
\nregime to govern it, the subject did not gain support among international bodies dealing
\nwith law of the sea.
\nIt was the decision of the International Court of Justice in the Anglo-Norwegian
\nFisheries case, 1951 ICJ Reports 116, 128 and 139 that gave rise to the discussion of a
\ncoastal archipelago concept.
\n46 It may be recalled that under this case, the United
\nKingdom challenged the legality of the lines of delimitation of the Norwegian fisheries
\nzone which was established based on the July 1935 Decree and was found by the Court<\/p>\n
43 Ibid., at p. 103 44 Ibid. 45 Ibid., at p. 104 46 Supra, footnote 41 at p. 41
\n11
\nto coincide with the territorial sea of Norway. 47 The ICJ held that the method of straight
\nbaselines employed by Norway in connecting the outermost islands adjacent to its coast
\nwas not contrary to international law. 48 Taking into consideration the ICJ judgement,
\nthe International Law Commission included in its first draft several provisions allowing
\nstraight baselines to be used in case a state has fringe of islands in the immediate
\nvicinity of its coast and it further analysed whether other types of archipelagos should
\nfall under special regime or be treated similarly with isolated islands for purposes of
\ndelimitation of territorial waters. 49 However, the provisions on groups of islands were
\nnot included in the articles because of complexities brought by formations of different
\narchipelagos where some were compact groups of islands with overlapping territorial
\nseas while others were scattered and that there was no agreement on the breath of
\nterritorial sea. 50 It may be noted that the Anglo Norwegian Fisheries case judgment was
\nthe very first legal development and a concrete foundation to support the scheme but
\nakin to previous proposals and submissions, the issue of archipelagos was left
\nunresolved.
\nAnother attempt was made in the first United Nations Convention on the Law of
\nthe Sea (UNCLOS I) where Indonesia raised the issue of archipelagos with draft articles
\nsponsored by Yugoslavia and the Philippines with the intention to apply the method of
\nstraight baselines to archipelagos. Under this principle, it was proposed to draw straight
\nbaselines around the outermost points of a coastal archipelago and connect them to the
\nmain island. 51 This is in effect applying by analogy the principle used by ICJ in the
\nAnglo-Norwegian Fisheries case to mid-ocean archipelagos like the Philippines and<\/p>\n
47 Supra, footnote 9 at p. 24 48 Supra, footnote 41 49 Supra, footnote 21 at p. 400 50 Ibid. 51 Supra, footnote 3 at p. 118
\n12
\nTonga. 52 However, the proposal was subsequently withdrawn for lack of international
\nsupport. 53 Had the proposal been adopted, its application would enclose huge areas of
\nwater. 54
\nIn the second Law of the Sea Conference, the issue was raised again by the
\nPhilippines and Indonesia, pressing the claim for the special rules on the delimitation
\nand status of archipelagic waters but the discussion did not reach any conclusion55.
\nThere was no major development on the issue of the archipelagic regime although the
\nmatter was continuously brought to the attention of the Conference.
\nIt was in 1971 that the subject matter was finally considered when the Committee
\non the Peaceful Uses of the Sea-Bed and Ocean Floor Beyond the Limits of National
\nJurisdiction (Sea-bed Committee), particularly Sub Committee II, took note of the
\ninterests of the concerned states and the subject of archipelagos was placed as item 16 of
\nits agenda. Attention was given to the special needs and interests of archipelagic states
\nby setting out the principles which shall govern the regime of archipelagic waters
\nincluding the provision of innocent passage through the designated sea lanes for
\ninternational navigation through those waters. 56 Consequently, discussion of the issue
\nbegan in 1973 where a group of four archipelagic states; the Philippines, Indonesia,
\nMauritius and Fiji submitted two proposals entitled \u201cArchipelagic principles as proposed
\nby the Delegations of Fiji, Indonesia, Mauritius and the Philippines\u201d concerning the
\ngeneral principles of archipelagic state and the draft articles on archipelagos57. The draft
\nGeneral Principles and Articles submitted by the proponent States contains the following
\nprovisions 58<\/p>\n
52 Ibid. 53Supra, footnote 41 at p. 2 54 Supra, footnote 9 at p. 106 55 Supra, footnote 41 at p. 2 56 Ibid., at p. 3 57 Supra, footnote 21 at p. 401 58 Supra, footnote 41 at p. 7
\n13
\nGeneral Principles
\n1. An archipelagic State, whose component islands and other natural
\nfeatures form an intrinsic geographical, economic and political entity
\nand historically have or may have been regarded as such, may draw
\nstraight baseline connecting the outermost points of the outermost
\nislands and drying reefs of the archipelago from which the extent of
\nthe territorial sea of the archipelagic State is or may be determined.
\n2. The waters within the baselines, regardless of their depth or
\ndistance from the coast, sea bed and the subsoil, and the superjacent
\nair space, as well as their resources, belong to and are subject to the
\nsovereignty of the archipelagic State.
\n3. Innocent passage of foreign vessels through the waters of the
\narchipelagic State shall be allowed in accordance with its national
\nlegislation, having regard to the existing rules of international law.
\nSuch passage shall be through sea lanes as may be designated for that
\npurpose by the archipelagic State.
\nArticles
\n2. An archipelagic State is a State constituted wholly or mainly by
\none or more archipelago.
\n3. For purposes of these articles an archipelago is a group of islands
\nand other natural features which are so closely interralated that the
\ncomponent islands and other natural features form an intrinsic
\ngeographical, economic and political entity or which historically have
\nbeen regarded as such.
\nThis proposal is considered as comprehensive and covers the whole range of
\narchipelagic regimes, different from the proposals made during UNCLOS I, further
\ngiving a clear and concise picture of the general position of states claiming archipelagic
\nstatus. 59 It also provides the drawing up of sstraight baselines connecting the outermost<\/p>\n
59 Supra, footnote 18 at p. 91
\n14
\npoints of the outermost islands for the purpose of delimiting the territorial sea and
\nfurther establishing a regime in the regime inside the baseline which is considered as sui
\ngeneris. 60 Relatively, the United Kingdom also submitted a proposal that sought to
\nestablish \u201cobjective criteria and to elaborate the legal status\u201d of archipelagic states in
\norder to determine which states composed of groups of islands would be eligible for
\napplication of the concept and to preclude other States with remotest archipelagic claim
\nfrom using the archipelagic principles to expand their national domain by including vast
\nocean spaces. 61 The discussion in the Sea Bed Committee did not only recognize the
\npressing needs of the archipelagic states but it also provides a legal framework for the
\narchipelagic regime. It may be noted that the issue is too complex as it involves the
\nenclosure of waters previously used in international navigation to form part of the
\nnational territory of one State.
\nThe enclosure of waters was the primary reason for the opposition from the
\nmajor maritime states as it would overlap the important shipping routes and would result
\nin the loss of navigational rights for both their naval and commercial vessels,
\nparticularly in the case of archipelagos like the Philippines and Indonesia. 62
\nNotwithstanding, the issue on special archipelagic regimes was substantively discussed
\nand pursued in Sub Committee II taking into account the special position of archipelagic
\nstates in international law and various criteria which would determine whether groups of
\nislands would constitute archipelagos, as well as the nature of passage through
\narchipelagic waters and straits. 63 During the Tenth Session of Sub Committee II in 1981,
\nthe concept of archipelago was laid down based on the proposed General Principles and
\nArticles submitted by proponent states which eventually became part of UNCLOS
\n1982, where the status of enclosed waters and the rights of passage through archipelagic<\/p>\n
60 Ibid. 61 Supra, footnote 21 at p. 401 62 Supra, footnote 3 at p. 119 63 Supra, footnote 41 at p. 3
\n15
\nwaters were defined. 64 It may be easily understood that the intentions of these states are
\nfounded on the security and integrity of their respective territories. Considering the
\nconfiguration of the states concerned, all the islands shall be unified and treated as one
\nentity by drawing a straight baseline that would connect one island to another to prevent
\nfragmentation.
\n2.2 Concept of Archipelagic State under International Law
\nThe concept of the new regime of archipelagos as laid down under Part IV of
\nUNCLOS 1982 has the following essential features: first, it permits straight baselines to
\nbe drawn around the outermost islands of archipelagos; second, it creates a new legal
\nconcept of archipelagic waters designed to accommodate the navigational interests of
\nmaritime states65. Article 46 of UNCLOS 1982 defines an archipelagic state as \u201ca state
\nconstituted wholly by one or more archipelagos and may include other islands.\u201d
\nIn order to have a better view of the concept of an archipelagic state, the
\ndefinition of archipelago should be discussed first. Archipelago has been defined in
\nArticle 46 (b) as \u201ca group of islands, including parts of islands, interconnecting waters
\nand other natural features which are so closely inter-related that such islands, waters and
\nother natural features form an intrinsic geographical, economic and political entity, or
\nwhich historically have been regarded as such.\u201d In its strict geographical terms,
\narchipelago means a formation of two or more islands which geographically may be
\nconsidered as a whole. 66 It includes not just insular natural formations but also noninsular formations, like reefs, and the areas of the sea around them among which there
\nmust be a close interrelationship thereby constructively forming a single physical and<\/p>\n
64 Ibid., at p, 101 65 Supra, footnote 3 at p. 120 66 Clive R. Symmons, The Maritime Zones of Islands in International Law, Leiden: Martinus Nijhoff
\nPublishers, 1979 at p. 60
\n16
\neconomic entity. 67 The two or more islands must be so situated as to be capable of being
\ngeographically considered as a whole or a unit. 68 In this regard, the mere existence of
\nislands does not qualify as an archipelago if they are not closely situated physically
\nthrough interconnecting waters to form as a whole.
\nTaking into consideration the definition and descriptions of an archipelago, an
\narchipelagic state is comprised of groups of islands that are described in paragraph (b)
\nArticle 46. There are several aspects to be noted in the definition of an archipelagic
\nstate.69 First, it was adopted to reflect the actual situation of states having archipelagic
\nclaims such as Papua New Guinea which is comprised of a main archipelago and two
\nother archipelagos, or Fiji which has far flung islands, or in case of Indonesia and the
\nPhilippines which both have only one archipelago. Secondly, the requirements of Article
\n46 must be complied with where a group of islands cannot constitute an archipelagic
\nstate if the islands are not closely interrelated as to form an intrinsic geographical,
\neconomic and political entity or have not been historically regarded as such.
\nIn line with this, if a particular country consists of a group of islands,
\ninterconnecting waters and other natural features, it may establish its claim as
\narchipelagic state provided that the islands form an intrinsic geographical, economic and
\npolitical entity or the islands must be subject to a single government. 70 Additionally, a
\ncountry may establish a claim upon the condition that the islands, parts of islands,
\nintervening waters and other natural features have historically been regarded as an
\nintrinsic geographical, economic and political entity. 71 The historical factor is an
\nalternative to geographical, economic and political requirements rather than additional<\/p>\n
67 Ibid. 68 Ibid. 69 Supra, footnote 18 at p. 126 70 Supra, footnote 20 at p. 171 71 Ibid., at p. 171
\n17
\nthereto. 72 Hence, the primary consideration to be regarded as an archipelago is the
\nproximity of groups of islands to one another in order to form one geographical entity.
\nRelated to the definition provided under paragraph (a), it requires that an
\narchipelagic state be constituted wholly by one or more archipelagos. 73 It further
\nrequires the exclusion of continental states which possess non-coastal archipelagos like
\nDenmark, with respect to the Faroes; Equador pertaining to the Galapagos Islands and
\nSpain with regard to the Canaries. 74 This means that these States cannot draw
\narchipelagic baselines around such islands. 75 Simply put, the archipelagic regime is not
\napplicable to groups of islands belonging to continental states.
\nConsequent to the concept of archipelagic states is the archipelagic waters or the
\nwaters within or enclosed by the archipelagic straight baseline system which falls under
\nspecial legal regime. Such waters are neither internal waters nor territorial sea although
\nthey bear similarities with the latter. 76 Article 47 of UNCLOS states that \u201can
\narchipelagic state may draw straight archipelagic baselines joining the outermost points
\nof the outermost islands and drying reefs of the archipelago…\u201d It bears stressing that
\nbaselines have a direct connection to the outer limits of maritime zones because the
\nbreadth of the territorial sea, the contiguous zone, exclusive economic zone and
\ncontinental shelf of an archipelagic state are measured initially from the baseline. For
\npurposes of delimiting its internal waters, the archipelagic state may draw closing lines
\nacross the mouth of a river, the mouth of a bay or the outermost harbour works. 77 The
\nwaters so enclosed are internal waters, not archipelagic waters based on Article 50
\nconsidering that it is within the archipelagic baseline. 78 This means that closing lines<\/p>\n
72 Supra, footnote 66 at p. 61 73 Supra, footnote 18 at p. 126 74 Supra, footnote 3 at p. 120 75 James C. F. Wang, Handbook on Ocean Politics and Law, Westport, CT: Greenwood Press, 1992 at p.
\n48 http:\/\/books.google.se 10 June 2010 76 Supra, footnote 3 at p. 125 77 S.P. Jagota, Maritime Boundary, Leiden: Martinus Nijhoff Publisher, 1985 at p. 33 78 Supra, footnote 3 at p. 125
\n18
\napply only with respect to the mouth of the rivers, across bays and using permanent
\nharbour works in accordance with Articles 9, 10 and 11 of UNCLOS, respectively, and
\ndelimitation under Article 50 refers to the establishment of a line delimiting the internal
\nwaters and separating those waters from archipelagic waters. 79 However, before an
\narchipelagic state may draw archipelagic baselines, it must satisfy the objective criteria
\nunder Article 47, as well as the requirement that it consists of one or more
\narchipelagos.80
\nIt may be recalled that among the opposing views to the establishment of this
\nnew regime in international law is the absence of objective criteria to which the regime
\nshould apply. 81 However, this issue was basically addressed by Article 47 by providing
\nobjective standards for drawing archipelagic baselines which include: maximum length
\nof baseline (not exceeding 100 nautical miles); the minimum and maximum water-toland ratios within those baselines; conformity of the baselines to the general
\nconfiguration of the archipelago and the restrictions on the point to and from which
\nbaselines shall be drawn. 82 Article 47 also addressed the problem of protecting and
\npreserving the rights of neighbouring states which may be affected by the adoption of
\narchipelagic baselines, through paragraph 5 and 6, respectively, which specifically
\nprovides that the baseline shall not be applied is such a manner as to cut off from the
\nhigh seas or the exclusive economic zone and territorial sea of another State and that
\nexisting rights and all other legitimate interests traditionally exercised by the
\nneighbouring state shall continue and be respected. 83 In effect, these principles meet the
\nobjectives of the archipelagic states to effectively control its territory and at the same
\ntime recognize the interests of other states.<\/p>\n
79 Supra, footnote 21 at p. 445 80 Ibid., at p. 415 81Ibid., at p. 418 82 Ibid. 83 Ibid.
\n19
\nIn line with being an archipelagic state, it exercises sovereignty over the waters
\nenclosed by the archipelagic baseline including the superjacent airspace, subjacent
\nseabed and subsoil and all the resources contained therein, pursuant to Article 49. This
\nright is subject to a number of rights enjoyed by third states deriving from existing
\nagreements so as to prevent conflict between the rights of archipelagic states under
\nUNCLOS and its obligation under these agreements. 84
\n2.3 Struggle to Achieve Recognition of the Archipelagic Principle
\nAs the forerunners for the recognition of archipelagic principles, the Philippines
\nand Indonesia together with Fiji and Mauritius waited a long period of time for the
\ninternational community to recognize the archipelagic principle. These states being
\noceanic nations submitted documents to the Sub-Committee II to seek the establishment
\nof fundamental principles applicable to an archipelagic state to include its rights over the
\nwaters within its baselines as well as the right to innocent passage by other states. 85
\nEmphases were made on the right of every state to exercise control over its territory and
\nthe difficulty in exercising it by reason of the complicated island networks as well as the
\nabsence of international rules to govern archipelagos. It is worth mentioning that the
\nclaim for special regime was based on the concept of the right of the state to draw
\nstraight baselines around its outermost islands for purposes of measuring its territorial
\nsea from the baseline and to further consider the waters enclosed as internal waters. 86<\/p>\n
84 Supra, footnote 3 at p. 125 85 Supra, footnote 41 at p. 40 86 Supra, footnote 21
\n20
\nState Practice
\nPrior to UNCLOS III, the Philippines and Indonesia already had an established
\nstate practice regarding the delimitation of their territorial waters and determining the
\nstatus around and surrounding their islands87. In the case of the Philippines, it submitted
\na note verbale to the Secretary General of United Nations in 1955, claiming exclusive
\nrights over waters within the coordinates of the Treaty of Paris of 1898 which provides
\nfor the cession of the Philippine archipelago by Spain to the United States and specifies
\ngeographical coordinates for the area of the ceded territory. 88 It claimed that \u201call waters
\naround, between and connecting different islands belonging to the Philippine
\narchipelago, irrespective of their width and dimension form an integral part of the
\nnational or inland water, subject to the exclusive sovereignty of the Philippines. \u201d
\nAlso, in 1961, the Philippine Congress enacted the Republic Act 3048 (as
\namended by RA 5446) defining specifically the seventy-nine (79) baselines drawn from
\nthe outermost points of the archipelago, averaging 35 miles each in length and further
\ndescribing the waters enclosed by these baselines as internal waters placed under the
\nsovereignty of the Philippines. 89 In its 1973 Constitution, particularly in Article 1, it
\ndefines national territory as \u201ccomprising of all islands and waters and all other territories
\nbelonging to the Philippines by historic rights or legal title including the territorial sea,
\nthe air space, the subsoil, the seabed, the insular shelves and other submarine areas over
\nwhich the Philippines has sovereignty and jurisdiction. The waters around, between and
\nconnecting the islands of the archipelago, irrespective of their breadth and dimension,
\nform part of the internal waters of the Philippines. \u201d90<\/p>\n
87 Supra, footnote 18 at p. 62 88 Ibid., at p. 63 89 Ibid., at p. 64 90 Philippine Constitution of 1973
\n21
\nOn the other hand, Indonesia proclaimed in 1957 its archipelagic concept and
\nissued a Government Declaration concerning the Water Areas of the Republic of
\nIndonesia otherwise known as Djuanda Declaration. 91 It defines both Indonesia\u2019s
\nterritorial waters and internal waters by declaring that \u201cthe delimitation of territorial sea
\nis measured from the baselines connecting the outermost points of the islands of
\nIndonesia\u201d and it provides that \u201call waters surrounding, between and connecting the
\nislands constituting the Indonesian state, regardless of their extension and breadth, are
\nintegral parts of the territory of the Indonesian state, and therefore, parts of the internal
\nor national waters which are under the exclusive sovereignty of the Indonesian state. \u201d92
\nBoth the Philippines and Indonesia received protests from major maritime
\npowers during that time including the United States, United Kingdom, Australia and the
\nNetherlands with the view that the declaration violated international law and constituted
\na major encroachment on freedom of movement on the world\u2019s ocean. 93 They expressed
\nconcern about passage through the archipelagic waters particularly with reference to
\nwarships. 94 The oppositions were based on their view that the freedom of their
\nrespective fleets, whether commercial or military, to navigate through the waters of the
\ntwo biggest archipelagic countries would be curtailed and hampered.
\nThe proposal for the recognition of a special regime is founded on the protection
\nof national territory and promotion of unity within the country. It may be recalled that
\nduring the deliberation before the Sub Committee II in 1974, Indonesia, the Philippines,
\nFiji and Mauritius stressed that the concept was essential to the national unity, political
\nstability, economic, social cultural cohesiveness and territorial integrity. 95 Their waters<\/p>\n
91 John G. Butcher, Becoming an Archipelagic State: The Djuanda Declaration of 1957 and the Struggle
\nto Gain International Recognition of the Archipelagic Principle in Robert Cribb and Michael Ford
\n(Editors), Indonesia Beyond the Water\u2019s Edge: Managing an Archipelagic State, Pasir Panjang: ISEAS
\nPublishing, 2009 at p. 39
\n92 Ibid. 93 Ibid. 94 Supra, footnote 18 at p. 64 95 Supra, footnote 41 at p. 39
\n22
\nwould become separating rather than unifying factors if not enclosed and that this would
\nform pockets of the high seas, open to the activities which might endanger the unity,
\nsecurity and territorial integrity of the country. 96 The sovereignty of the archipelagic
\nstates and the preservation of same are vital to their basic national unity and the
\nprotection of their waters from intrusion is crucial to their national security97. Although
\nmany countries supported the proposal, it was pointed out that the regime would entail
\nproblems concerning the existing uses of the sea considering that some archipelagic
\nwaters are situated in the middle of inter-oceanic commercial navigation, hence, passage
\nthrough said waters should be unrestricted and recognized and should be more than
\nsimple right of innocent passage. 98 The proponents were in effect criticised on the
\nabsence of formulated rules on passage through archipelagic waters.
\nIt is in this regard that the proposal was amended to include provisions on the
\nright of innocent passage, the extent to which the state could regulate such passage as
\nwell as the designation of sea lanes and set limitations on their powers to make laws and
\nregulations on the innocent passage of foreign ships through archipelagic waters. 99 It
\nwas emphasised that a delicate balance had to be struck to ensure minimum interference
\nwith interests of maritime states as well as the legitimate interest of transit State. 100
\nHence, in order to reconcile the conflicting interests of the sponsoring states and other
\nStates opposed to the regime, they had to limit their powers to enact rules and
\nregulations that would govern the passage of foreign vessels through their waters,
\nthereby putting first the interests of other States in order to gain recognition of
\narchipelagic principle. Based on the foregoing, it is worth mentioning that the great
\nefforts of these states to seek a regime that would unify their respective territories for the
\nsake of security and integrity paved the way subject to the interests of other states.<\/p>\n
96 Ibid., 97 Ibid., at p. 45 98 Ibid. 99 Ibid. at p. 59 100 Ibid.
\n23
\nConsequently, a new maritime regime of a hybrid nature has been accepted in the
\nemerging law of the sea and the division of the seas into high seas, territorial seas and
\ninternal waters now includes archipelagic waters. 101 In their 25 year struggle for
\nrecognition as an oceanic archipelagic regime, they have gained advantage by unifying
\ntheir respective territories. As pointed out by these states, sovereignty and exclusive
\njurisdictions over the waters that serves as links of communication to every island were
\nvital to archipelagic states, not only to their economy but also to their national security
\nand territorial integrity. 102 Another advantage is that the extent of the interconnecting
\nwaters is utilized by the inhabitants of the islands for economic purposes, to include the
\nexploitation of the resources thereof for food and wealth. 103
\nAs previously discussed, the very intention of archipelagic states is to protect
\ntheir territorial integrity and national security. This new approach reflected the national
\noutlook of the archipelagic states as nation states and their aspiration to acquire
\nterritorial unity. 104 The claim for recognition for a special regime does not imply
\nacquiring extended territory but for self preservation. It is crucial for them to establish
\nmaritime boundaries that would define their territorial limits as sovereign states.<\/p>\n
101 Supra, footnote 66 at p. 70 102 Supra, footnote 41 103 Supra, footnote 18 at p. 124 104 Ibid., at p. 154
\n24
\nCHAPTER III
\nBOUNDARY SETTING IN RELATION TO SECURITY
\nThere are five key maritime zones which the coastal state may claim: internal
\nwaters, territorial waters, the contiguous zone, the exclusive economic zone (EEZ) and
\nthe continental shelf and in case of an archipelagic state, it may claim archipelagic
\nwaters within archipelagic baselines. 105 These maritime zones established under
\nUNCLOS 1982 are of crucial importance to coastal states because they afford them
\nsecurity in the face of threats of cross-border crimes such as smuggling, illegal migration
\nand ultimately the threat of terrorism and the use of military force. 106 For this reason,
\ncoastal states assert their right to maritime zones and at the same time set their respective
\nborders in order to determine span of control over their territory.
\nIt is in this regard that the archipelagic states particularly the Philippines and
\nIndonesia have become conscious of their national security taking into account the
\nconfiguration of the territory where islands spanning a large part of the ocean have made
\nit difficult for them to exercise effective central authority together with ease of intrusion
\nby outsiders107. Insofar as the exclusive interest is concerned, the most important fact
\nhere is that a political entity is comprised of a group of islands separated by expanses of
\nwater where exchange and travel between various parts of the state greatly depends on<\/p>\n
105 Supra, footnote 20 at p. 42 106 Ibid., at p. 9 107 Kriangsak Kittichaisaree, The Law of the Sea and Maritime Boundary Delimitation in Southeast Asia,
\nNew York: Oxford University Press 1987 at p. 151
\n25
\nthe use of the ocean108 . It becomes extraordinarily difficult to exercise control of
\nimplementation of local policies and matters of special importance to all states such as
\nimmigration, entry of alien and import and export problems109. Also, the military aspect
\nof security has become complicated because of the geographical situation. The state can
\nhardly maintain a regular watch over all means of access to the various islands or even
\nto a large island since the ocean areas involved are so vast which makes espionage and
\nsurveillance from the outside less difficult. 110 Hence, there is the desire to enclose their
\nrespective islands and interconnecting waters within a single unit to insulate them from
\noutside intrusion111.
\nAs sovereign States, it is customary for archipelagic states to take special and
\nvital interest over their maritime zones. They have to find or establish measures within
\nthe bounds of international law to delimit their boundaries to protect their territorial
\nintegrity.
\n3.1 Archipelagic Boundary Delimitation
\nThe recognition of archipelagic principle in international law allows archipelagic
\nstates to delimit their respective boundaries and draw baselines that will delineate the
\nareas of waters and land that are to be measured. Article 47 of UNCLOS prescribes
\nboundary delimitation of the archipelagic State to determine the general extent of the
\narchipelago. It also deals with rules for safeguards for neighbouring states which might
\nbe affected as well as the recording and publication of archipelagic baselines.112 The
\nfollowing provisions of Article 47 of UNCLOS illustrate boundary delimitation:<\/p>\n
108 Myres S. McDougal and William T. Burke, The public Order of the Oceans, A Contemporary
\nInternational Law of the Sea, New Haven: New Haven Press 1987 at p. 412 109 Ibid. 110 Ibid. 111 Supra, footnote 107 at p. 151 112 UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nation Convention
\non the Law of the Sea, New York: United Nations Publications, 1989 at p. 35
\n26<\/p>\n
1. An archipelagic State may draw straight archipelagic baselines
\njoining the outermost islands and drying reefs of the archipelago
\nprovided that within such baselines are included the main islands and
\nan area in which the ratio of the area of the water to the land area of
\nthe land, including atolls, is between 1 to 1 and 9 to 1.
\n2. The length of such baselines shall not exceed 100 nautical miles,
\nexcept that up to 3 percent of the total number of baselines enclosing
\nany archipelago may exceed that length, up to a maximum length of
\n125 nautical miles.
\n3. The drawing of such baselines shall not depart to any appreciable
\nextent from the general configuration of the archipelago.
\n4. Such baselines shall not be drawn to and from low-tide elevations,
\nunless lighthouses or similar installations which are permanently
\nabove sea level have been built on them or where a low tide elevation
\nis situated wholly or partly at a distance not exceeding the breath of
\nthe territorial sea from the nearest island.
\n5.The system of such baselines shall not be applied by an
\narchipelagic State in such a manner as to cut off from the high seas or
\nthe exclusive economic zone or the territorial sea of another State.
\n6. If a part of the archipelagic waters of archipelagic State lies
\nbetween two parts of an immediately adjacent neighbouring State,
\nexisting rights and all other legitimate interests which the latter State
\nhas traditionally exercised in such waters and all rights stipulated by
\nagreement between those States shall continue to be respected.
\n7. For purposes of computing the ratio of water to land under
\nparagraph 1, land areas may include waters lying within the fringing
\nreefs of islands and atolls, including that part of a steep-sided oceanic
\nplateau which is enclosed or nearly enclosed by a chain of limestone
\nislands and drying reefs lying on the perimeter of the plateau.
\n8. The baselines drawn in accordance with this article shall be shown
\non charts of a scale or scales adequate for ascertaining their position.
\nAlternatively, lists of geographical co-ordinates of points, specifying
\nthe geodetic datum, may be substituted.
\n27
\n9. The archipelagic State shall give due publicity to such charts or
\nlists of geographical coordinates and shall deposit a copy of each
\nsuch chart or list with the Secretary-General of the United Nations.
\nBased on the foregoing, the following rules must be satisfied by the archipelagic
\nstate in drawing baselines: the archipelagic state must include the main islands; the
\ndesignated baseline must enclose an area of sea at least as large as the area of enclosed
\nland but not more than nine times that of the land area; the baseline may not exceed 100
\nnautical miles in length except that up to three percent of the total number of baselines
\nenclosing any archipelago may exceed that length, up to a maximum length of 125
\nnautical miles and it must not deviate from the general configuration of the archipelago
\nto any appreciable extent.113
\nAlso, regarding the first requirement, \u201cmain island\u201d may be construed, depending
\non the interest of the archipelagic state, as the largest island of the archipelago or the
\nmost populous island or most economically productive islands or the most pre-eminent
\nin a historical or cultural sense.114
\nFurther, the purposes of water-to-land ratio of 1:1 and 9:1 are to provide
\nobjective criterion for the concept of an archipelagic state, to limit its application to
\nrelatively compact oceanic island groups and to meet the claims of archipelagic states
\nparticipating in the Conference. 115 The lower ratio was selected to exclude those
\narchipelagos that are dominated by one or two large islands or parts of islands between
\nwhich there are comparatively small areas of interconnecting seas such as, the United
\nKingdom, Madagascar and Cuba; whereas the upper ratio excludes those widely
\ndispersed archipelagos because it is impossible to enclose large areas of seas within<\/p>\n
113 UN DOALOS, Handbook on the Delimitation of Maritime Boundaries, New York: United Nations
\nPublications, 2002 at p. 7
\n114 Ibid., at p. 8 115 Supra, footnote 21 at p. 429
\n28
\narchipelagic baselines as in the case of Tuvalu and Kiribati.116 In this regard, the
\ncountries that could enclose waters approximately within the prescribed ratio are
\nIndonesia and the Philippines with 1:1.8 and 1.1.2, respectively.117
\nIn sum, the very idea of Article 47 is to have a compact and integrated territory
\nthrough straight archipelagic baselines that would connect the islands and waters of the
\narchipelagic State. The archipelagic baseline is the starting point from which the extent
\nof territorial sea, contiguous zone, the exclusive economic zone and continental shelf
\nwill be measured.
\nRelatedly, there are baseline options for archipelagic states that are consistent
\nwith UNCLOS which could be identified from existing state practices. 118 First is the
\nsingle baseline system. This option allows the inclusion of all the islands and other
\nnatural features and the interconnecting waters that constitute the archipelagic State
\nwithin a single composite baseline system. The states like Indonesia, the Philippines and
\nCape Verde have applied this system in enclosing their respective archipelagos. Second
\noption is the multiple baseline system which allows the drawing of archipelagic
\nbaselines around each archipelago forming the archipelagic state. However, each
\narchipelago should be consistent with Article 46(b) and each enclosure should satisfy
\nArticle 47 on the drawing of archipelagic baselines. The country that was able to apply
\nthis option is Solomon Islands with five archipelagos and has drawn baseline around
\neach archipelagos. Third is the non-archipelagic straight baseline system. This option
\ncan be applied by States which fall within the definition of archipelagic state and
\npredominantly consist of one large island. They may draw straight baselines which tie
\nthe coastal islands to the main island, similar to mainland coasts that are fringed by
\ncoastal islands or coastal archipelagos. The advantage of this is that the waters inside the<\/p>\n
116 Supra, footnote 20 at p. 176 117 Supra, footnote 3 at p. 123 118 Supra, footnote 18 at pp. 135-136
\n29
\nstraight baselines then become internal waters rather than archipelagic waters.
\nMadagascar and Cuba have chosen this option in their respective legislations.
\nStatus of Waters Enclosed and Rights Accorded to the Archipelagic State
\nThere are various terms used to describe the status of archipelagic waters. There
\nare views that waters landward of straight archipelagic baselines should be described in
\nthe same manner as in the case of waters enclosed landward of the straight baseline
\nsystem as provided under the 1958 Convention on the Territorial Sea which was
\ndescribed as internal119. However, in order not to deviate from the accepted categories of
\ninternal waters, territorial sea and straits used for international navigation, the 4-State
\nDrafts and the United Kingdom emphasized the sui generis character of the waters
\nenclosed by archipelagic baselines by adopting a new term archipelagic waters. 120
\nHence, the waters within or enclosed by the archipelagic baselines are referred as
\narchipelagic waters.
\nThe legal status of archipelagic waters is embodied in Article 49 of UNCLOS
\nwhere it specifically states the following:
\n1. The sovereignty of an archipelagic State extends to the waters
\nenclosed by the archipelagic baselines drawn in accordance Article 47,
\ndescribed as archipelagic waters, regardless of their depth or distance
\nfrom the coast.
\n2. Their sovereignty extends to the air space over archipelagic waters,
\nas well as to their bed and subsoil, and the resources contained therein.
\n3. This sovereignty is exercised subject to this Part.<\/p>\n
119 Supra, footnote 66 at p. 68 120 Supra, footnote 9 at p. 114
\n30
\n4. The regime of archipelagic sea lanes established in this Part shall
\nnot in other respects affect the status of the archipelagic waters
\nincluding the sea lanes, or the exercise by the archipelagic State of its
\nsovereignty over such waters and their air space, bed and subsoil, and
\nthe resources contained therein.
\nThe archipelagic waters should be distinguished from internal waters. The
\nconcept of internal waters is retained for bays, river mouths and ports in accordance with
\nArticles 9, 10 and 11. The internal waters in this regard are those created by delimiting
\nclosing lines across bays, rivers and ports, therefore, subject to normal rules while
\narchipelagic waters are those enclosed by or within the archipelagic baselines. There is
\nno right of foreign passage over internal waters.121 On the other hand, the archipelagic
\nstate exercises sovereignty over archipelagic waters including seabed and subsoil therein
\nregardless of their depth or distance from the coast but the exercise thereof is subject to
\nsome limitations in favour of rights of passage for foreign ships and aircrafts.122
\nThese distinctions connote that the archipelagic state exercises absolute
\njurisdiction over its internal waters while its rights over archipelagic waters are subject
\nto certain conditions. It is similar to rights over territorial sea where foreign vessels
\nenjoy innocent passage and transit passage. With regard to the boundary setting of the
\narchipelagic state, it meets the objective and requirements of unity and national integrity
\nof the archipelagic state. It may be understood that if the waters will not be enclosed by
\nbaselines, they will possess the character of international straits where passage of foreign
\nvessels is a matter of right.
\n3.2 Introduction of Archipelagic Sea Lanes Passage (ASLP)
\nIt may be recalled that the issue of passage through archipelagic waters was
\ncontroversial during the deliberation stage of UNCLOS III. The opposition of major<\/p>\n
121 Supra, footnote 107 at p. 164 122 Ibid., at p. 162
\n31
\nmaritime powers and other states was overwhelming by reason of the obstacles they
\nwould face in commercial navigation, strategic movement of military forces as well as
\nthe right of innocent passage and other existing rights in the event that waters would be
\nenclosed and placed under jurisdiction of the archipelagic states.
\nOppositions contended that once the archipelagic state acquired the exclusive
\nrights over the waters previously regarded as high seas but now placed under the
\nsovereignty of that state, foreign military aircrafts or vessels would have no right to
\nnavigate or fly over those waters. On the other hand, the archipelagic states argued on
\nthe grounds of territorial integrity and national security. In order that the archipelagic
\nconcept be acceptable to maritime powers and other states, negotiation and compromise
\non navigational rights over archipelagic waters were made. This is where the concept of
\narchipelagic sea lane passage was introduced as a compromise for gaining archipelagic
\nstate status.
\nRights of passage of all states through and over archipelagic waters are the major
\nlimitation to the sovereignty of the archipelagic state123. Worth mentioning are the two
\ngroups of rights of other states over archipelagic waters introduced in UNCLOS III;
\nthese are non-navigational and navigational rights. The former consists of previous
\nrights being exercised by neighbouring States in archipelagic waters by virtue of
\nagreement prior to becoming as such; whereas, the latter includes right of innocent
\npassage which had been present since UNCLOS I and the new concept of archipelagic
\nsea lane passage124.
\nThe existing agreements are those entered into by the archipelagic States with
\nother States that will be affected once an archipelagic State draws its baseline. Taken as
\nexample are the immediately adjacent States of Malaysia and Indonesia. They entered<\/p>\n
123 Robert Beckman, Archipelagic Sea Lanes Passage In Southeast Asia, in Chong Guan Kwa, John
\nKristen Skogan Maritime security in Southeast Asia, New York: Routledge, 2007 at p. 119,
\nhttp:\/\/books.google.com 22 February 2010 124 Supra, footnote 18 at p. 158
\n32
\ninto an agreement on 25 February 1982 on the breadth of navigational corridor entitled
\nThe Treaty Between Malaysia and the Republic of Indonesia Relating to the Legal
\nRegime of Archipelagic State and the Rights of Malaysia in the Territorial Sea and
\nArchipelagic Waters as well as in the Airspace above the Territorial Sea and
\nArchipelagic Waters and the Territory of the Republic of Indonesia Lying Between East
\nand West Malaysia, (otherwise known as Jakarta Treaty)125. The treaty provides a 20
\nmile corridor between their borders particularly on east and west part for navigation
\npurposes. It means that the stipulations regarding the use of waters enclosed by
\narchipelagic baselines stay although such waters were placed under the jurisdiction of
\nIndonesia.
\nRelatedly, non-navigational rights include the interest of other States in lying
\nsubmarine cables within the scope of \u201cdirect communication\u201d126. The establishment of
\narchipelagic baselines does not affect this particular right of other States.
\nOn the other hand, navigational rights involve right of innocent passage and
\narchipelagic sea lanes passage. Similar to the innocent passage rights that could be
\nexercised by a State over the territorial sea of another State, it could also be exercised
\nthrough archipelagic waters pursuant to Article 52 of UNCLOS. The rule on innocent
\npassage shall be governed by Part II Section 3 of UNCLOS127. Passage, in this regard,
\nmeans navigation through the territorial sea for the purpose of (a) traversing that sea
\nwithout entering internal waters or calling at a roadstead or port facility outside internal
\nwaters or (b) proceeding to or from internal waters or a call at such roadstead or port
\nfacility and it shall be continuous and expeditious except for anchoring in normal access
\nof navigation, in force majeure or when Helping another vessel128. Also, Article 19 of<\/p>\n
125 Ibid., at p159 126 Supra, footnote 9 at p. 117 127 UNCLOS Article 52 \u2013 (1) Subject to article 53 and without prejudice to article 50, ships of all States enjoy the
\nright of innocent passage through archipelagic waters, in accordance with Part II, section 3. (2) The archipelagic
\nState may, without discrimination in form on in fact among foreign ships if such suspension is essential for the
\nprotection of its security. Such suspension shall take effect only after having been duly published. 128 UNCLOS Article 18
\n33
\nUNCLOS provides that a vessel exercising the right of innocent passage must not
\nengage in conduct which is prejudicial to the peace, good order or security of the coastal
\nstate. Further, it is a requirement under Article 21 for foreign vessels exercising the right
\nof innocent passage through archipelagic waters to comply with laws and regulations of
\nthe archipelagic State as well as the international rules against collision at sea.
\nAnother navigational right is referred to as the specialized regime of the right of
\narchipelagic sea lane passage. Based on Article 53 of UNCLOS, archipelagic sea lane
\npassage means the exercise of the rights of navigation and overflight in normal mode
\nsolely for the purpose of continuous, expeditious and unobstructed transit between one
\npart of the high seas or an exclusive economic zone and another part of the high seas or
\nan exclusive economic zone129. This right could be exercised in two instances, first, in
\nall normal passage routes used for international navigation or over flight through or over
\narchipelagic waters and its adjacent territorial sea; second, in sea lanes or air routes
\nwhich the concerned archipelagic state has specifically designated130.
\n3.3 Aspects of Right of Archipelagic Sea lane Passage
\nThis particular regime guarantees that ships and aircrafts of other States have the
\nright to pass through and over archipelagic waters on designated sea lanes and air
\nroutes131. It is very much different from innocent passage. The following instances
\nconstitute distinctions between two principles of innocent passage and archipelagic sea
\nlane passage with regard to passage through archipelagic waters132:<\/p>\n
129 Supra, footnote 12 at p. 522 130 Supra, footnote 23 at p. 318 131 Supra, footnote 123 at p. 119 132 Hashim Djalal, Indonesia\u2019s Archipelagic Sea Lanes, in Robert Cribb and Michelle Ford (Editors)
\nIndonesia Beyond the Water\u2019s Edge, Pasir Panjang: ISEAS Publishing at p. 60
\n34
\n1. The right of innocent passage requires that submarines and
\nother under water vehicles should navigate on the surface,
\nshowing their flags; whereas in archipelagic sea lane passage,
\nunderwater vehicle is allowed to navigate under normal mode
\nwhich is possible that it pass underwater;
\n2. There is no right of over flight in areas where innocent
\npassage is allowed while in archipelagic sea lane, over flight is
\npermitted;
\n3. The right of innocent passage could be suspended in certain
\ncases like when there is military exercise or the State has to deal
\nwith local crises but archipelagic sea lane passage cannot be
\nsuspended, it may only be substituted;
\n4. With regard to warships, there are no precise rules under
\ninternational law that would require countries to give prior notice
\non innocent passage of warships; other countries necessitate
\nprior notice while some do not require but in archipelagic sea
\nlane passage, prior notification on the passage of warship
\nthrough it is explicitly not required;
\n5. The provisions on archipelagic sea lane do not include the
\npossibility of cooperation between the archipelagic State and
\nuser States in terms of establishment of safety rules on
\nnavigation and the prevention and control of pollution from ship
\nthrough archipelagic sea lane are not covered by this concept.
\nIt may be understood from the above mentioned distinctions that the rules on
\ninnocent passage are more stringent than that of the archipelagic sea lane passage.
\nViolations of conditions on innocent passage that would affect national security of the
\nState will give rise to suspension of the right. However, the same cannot be done in
\narchipelagic sea lane passage because it is designed for continuous, unobstructed and
\nexpeditious passage of foreign vessels.
\nAnother aspect of archipelagic sea lane passage is that it is almost similar to the
\nright of transit passage through and over straits used for international navigation. Transit
\npassage means the exercise of freedom of navigation and overflight, in accordance with
\nPart III UNCLOS, solely for the purpose of continuous and expeditious transit of the
\n35
\nstrait between one part of the high seas or an exclusive economic zone and another part
\nof the high seas or an exclusive economic zone (Article 38). It is the same as freedom of
\nthe high seas in the aspect of continuous and expeditious passage133. Moreover, Article
\n54 of UNCLOS specifically states that provisions on transit passage shall be applied
\nmutatis mutandis to the regime of archipelagic sea lane passage. Emphasis should be
\nmade on the following similarities134:
\n1. The rights of transit passage and archipelagic sea lane passage include
\noverflight for aircraft as well as navigation for ships;
\n2. Ships exercising right of transit or archipelagic sea lane passage may
\nuse their normal mode of transit, hence, surface warship may pass
\nthrough sea lane in a manner necessary for their security to include
\nformation steaming and recovery of aircraft;
\n3. Both rights may never be suspended for reason of national security,
\neven temporarily.
\nThe foregoing circumstances do not apply to right of innocent passage. On the
\nother hand, these rights differ from one another under the following aspects:135
\n1. Transit passage signifies exercise of freedom, while archipelagic sea
\nlanes passage is the exercise of the rights of navigation or overflight;
\n2. As a matter of general right, ships and aircrafts enjoy right of transit passage
\nthrough straits. On the other hand, they enjoy a general right of sea lanes
\npassage if the archipelagic state designates; otherwise this right \u201cmay\u201d be
\nexercised through the routes used for international navigation;
\n3. Unlike in the case of transit passage, both sea lanes and air routes must be
\nestablished on axis lines within archipelagic waters;<\/p>\n
133 Supra, footnote 9 at p. 89 134 Supra, footnote 123 at p. 119 135 Supra, footnote 13 at p. 25
\n36
\n4. All normal passage routes used for international navigation should be
\nincluded in designating archipelagic sea lanes and air routes, whereas; it is
\nnot a requirement in transit passage;
\n5. The right of overflight under archipelagic sea lanes passage is restricted to
\nair routes above sea lanes, unlike in the freedom of overflight within transit
\npassage regime. This means that overflight should be made strictly above the
\ndesignated sea lanes or routes normally used for international navigation, in
\nthe absence of designated sea lanes.<\/p>\n
Additionally, although its designation is not mandatory as the phrase \u2018may
\ndesignate\u2019 is expressly stated in Article 53, the right of archipelagic sea lane passage
\napplies by default because of paragraphs (4) and (12) thereof which provide that sea
\nlanes shall include all passage routes used for international navigation through
\narchipelagic waters and that if no sea lanes are designated, the right may be exercised
\nthrough routes normally used for international navigation136.
\nIn the event the archipelagic sea lane will be established in narrow channels, the
\narchipelagic State may prescribe traffic separation scheme for the safe passage of ships
\nbased on Article 53 (6). Also, the proposal to establish a sea lane has to be approved by
\na competent international organization, in this case the International Maritime
\nOrganization (IMO) which has jurisdiction over shipping and navigation questions137.
\nOnce the proposal for its designation is approved by the IMO, ships and aircraft of all
\nstates, to include military ships and aircraft, may enjoy the right of archipelagic sea lane
\npassage continuously and expeditiously through the archipelagic waters138.
\nConsidering that archipelagic sea lane passage is similar to transit passage in
\nmajor aspects, the rights afforded to archipelagic states over archipelagic sea lane are
\nvery limited. It grants maritime nations non-suspendable rights of passage through an<\/p>\n
136 Supra, footnote 132 at p. 62 137 Supra, footnote 18 at p. 169 138 Supra, footnote 123 at p. 120
\n37
\narchipelago 139 . This is the greatest among the considerable responsibilities of the
\narchipelagic States to the international maritime community and the price they have to
\npay for the advantages of gaining archipelagic status140.
\nPurpose of Archipelagic Sea Lanes
\nAs provided under Article 53 of UNCLOS, an archipelagic state may designate
\nsea lanes and air routes above them for continuous and expeditious passage of foreign
\nships and aircraft through its archipelagic waters and territorial sea and air space above.
\nIt shall include normal routes used for international navigation. The sea lane connects
\none part of the high seas or exclusive economic zone to another part of the high seas or
\nEEZ or territorial sea of another state. In order to reach the other part of the high seas,
\nthe vessel could traverse through the archipelagic sea lane. Although it is similar to
\ntransit passage in straits used for international navigation, it is adjusted to reflect the
\ndifferences between the vast expanses of ocean that become archipelagic waters as well
\nas narrow passages that comprise most straits used for international navigation141.
\nBasically, archipelagic sea lanes cater to the needs of user states so they could
\nhave uninterrupted navigation through archipelagic waters. They facilitate the
\nunobstructed passage of military vessels and aircrafts over the waters of the archipelagic
\nstate142.
\nIn order to protect its maritime security in relation to the establishment of
\narchipelagic sea lane passage, the archipelagic state may, under Article 42 UNCLOS,
\nadopt laws and regulations relating to sea lane passage in respect of safety of navigation,<\/p>\n
139 Chris Forward, Archipelagic Sea Lanes in Indonesia \u2013 Their Legality in International Law, Maritime
\nJournal 2009 at p 153 http:\/\/martimejournal.murdoch.edu.au 21 June 2010 140 Supra, footnote 20 at p. 178 141 Supra, footnote 21 at p. 466 142 Supra, footnote 18 at p. 168
\n38
\nprevention and control of pollution, prevention of fishing and the loading and unloading
\nof any commodity, currency or person or sanitary laws or regulation.
\n3.4 Maintaining Territorial Integrity
\nIn asserting their rights to maritime spaces, the archipelagic states have to agree
\nto the establishment of sea lanes for passage of foreign ships in the archipelagic waters.
\nAlthough the archipelagic states preferred the use of these sea lanes to be subject to the
\nrule of innocent passage, demands from maritime states eventually led to a regime of
\npassage comparable to transit passage which is less stringent143. The interests of the user
\nstates have been taken into account in order that their freedom of navigation will not be
\nobstructed.
\nHowever, the archipelagic states have to balance their interests of maintaining
\nterritorial integrity with the right of user states to navigate uninterruptedly through the
\narchipelagic waters. The two biggest archipelagic states and the primary proponents of
\narchipelagic principles, Indonesia and the Philippines have to consider their respective
\nsecurity interests, economic interests as well as the environment.
\nIn protecting the security interest, archipelagic state may limit the number of sea
\nlanes designated and may chose the shortest possible routes or it may limit certain types
\nof vessels or vessels carrying certain types of cargos 144 . The archipelagic state is
\npermitted to adopt laws or regulations that will govern the exercise of archipelagic sea
\nlanes passage but should not result to hampering or impairing the relevant right of
\npassage145 The vessels and aircrafts are obliged to comply with the following conditions<\/p>\n
143 Supra, footnote 107 at p. 161 144 Supra, footnote 18 at p. 170 145 Supra, footnote 23 at p. 319
\n39
\nunder Articles 39 and 40 of UNCLOS while exercising the right of archipelagic sea lanes
\npassage: 146
\n1. ships and aircraft exercising right of archipelagic sea lane
\npassage shall proceed without delay;
\n2. they are not allowed to cause any threat to the security of
\narchipelagic State;
\n3. ships shall comply with international rules for preventing
\ncollisions between ships;
\n4. they shall take necessary precautionary measures to prevent
\ncausing of pollution to the marine environment.
\nWhile it is true that designating archipelagic sea lane passage is the ultimate
\nresponsibility of archipelagic States to the international community, it shall also be
\nconsidered that maintaining territorial integrity is paramount to other obligations. There
\nare certain important interests which the archipelagic state cannot give up, for instance
\nits maritime security, to satisfy concerns of the user states. Hence, designation of
\narchipelagic sea lanes shall be viewed as the greatest contribution of archipelagic states
\nto the international community, particularly to major maritime powers because their
\nright to navigation through archipelagic waters is being upheld and guaranteed.<\/p>\n
146 Supra, footnote 21 at p. 334
\n40
\nCHAPTER IV
\nINDONESIA\u2019S COMPLIANCE<\/p>\n
The archipelagic sea lanes passage (ASLP) is extremely important to
\ninternational commercial and naval navigation particularly through Indonesian and
\nPhilippine archipelagic waters and international straits. 147 Major maritime powers
\nclaimed uninterrupted passage through these archipelagos for reasons of international
\ntrade and strategic security, like the United States for the transit of its submarine to and
\nfrom Guam, as well as Japan for the passage of its oil tankers to and from the Persian
\nGulf.148 From the view point of these maritime powers these archipelagic states hamper
\nfree navigation because they lie at the crossroad of two great oceans, Indian and Pacific
\nOceans. Indonesia, in particular, the largest archipelagic state in the world with 5.8
\nmillion square kilometres consisting of 0.3 million square kilometres of territorial sea,
\n2.8 million square kilometres of archipelagic waters and 2.7 million square kilometres of
\nEEZ, is lying not only between these oceans but also between two continents, Asia and
\nAustralia.149 Hence, absence of sea lanes would considerably delay navigation activities
\nof their commercial and military fleets because they have to take a long route.<\/p>\n
147 David L. Larson, Innocent, Transit and Archipelagic Sea Lane Passage Ocean Development and
\nInternational Law Vol. 18 No. 4, 1987 at p. 417
\n148 Ibid. 149 Arif Havas Oegroseno, Indonesia\u2019s Maritime Boundaries in Robert Cribb and Michelle Ford (Editors)
\nIndonesia Beyond the Water\u2019s Edge, Pasir Panjang ,ISEAS Publishing 2009 at p. 49
\n41
\nFigure 1 Map of the Republic of Indonesia
\nSource: Ministry of Marine Affairs and Fisheries, Republic of Indonesia https:\/\/monkessays.com\/write-my-essay\/dkp.go.id 5 July 2010
\nIt was previously pointed out that it is not mandatory upon the archipelagic state
\nto designate archipelagic sea lanes passage. However, if it chooses to designate, Article
\n53(4) requires that the designation includes all normal passage routes used for
\ninternational navigation. From the Indonesian perspective, this means that it can only
\nexercise its full sovereignty over its archipelagic waters if it designates a full regime of
\narchipelagic sea lanes through its waters. 150 The fact that a number of straits are also
\nlocated in Indonesia like the Straits of Malacca and Singapore, the Sunda Strait and
\nLombok Strait, means that there is a need to designate sea lanes which are not
\nduplicative for purposes of enhancing safety of navigation, protection of the
\nenvironment and strengthening the security of the maritime domain. 151<\/p>\n
150 Supra, footnote 132 at p. 62 151 Arif Havas Oegroseno, Archipelagic Sea Lanes: The Indonesian Experience in Myron H. Nordquist,
\nTommy T. B. Koh and John Norton Moore (Editors), Freedom of the Seas, Passage Rights and the 1982
\nLaw of the Sea Convention, Leiden: Martinus Nijhoff Publishers 2008 at p. 388
\n42
\nIn this regard, Indonesia started the process of designating archipelagic sea lanes
\npassage in its waters in 1994 by conducting national surveys, and in 1995 it undertook
\nnational inter-agency coordination. 152 In 1996, it began its consultations with the
\nInternational Hydrographic Organization and with interested user states such as
\nAustralia, Japan, the United States and the United Kingdom on the designation of
\narchipelagic sea lanes as well as the rules that will govern the same. 153 Since the
\nbeginning of the negotiation, it has been the intention of the United States, whose prime
\nmission is to strengthen the capability to provide global reach through sea power, to
\nensure that all normal routes and transit through the area would be properly included in
\nthe designation. 154 With regard to Australia, its concern is not only regional security but
\nalso economic aspects in case of any erosion of free access through the sea-air gap to
\ntheir north. 155
\nOn the other hand, Indonesia had taken into account important factors, from
\ntechnical requirements to environmental matters, before the axis of sea lane was
\ndecided. These include the presence of maritime installations and structures, underwater
\ncables and pipelines, the needs of international vessels and aircraft that intend to pass
\nthrough or over Indonesian waters, the capability of law enforcement agencies to
\nmonitor the archipelagic sea lanes, the maintenance of peace, stability and security in the
\ncountry\u2019s heavily populated coastal zones, the intensity of fishing activities and the need
\nto protect marine parks and ecosystems. 156 Considering that the establishment of
\narchipelagic sea lanes is on territorial waters of the archipelago, it has to re-adjust its
\narchipelagic starting lines in the Natuna Sea.157<\/p>\n
152Ibid. 153 Supra, footnote 132 at p. 63 154 Mark F. Mayer, Archipelagic Sea Lanes: Designation Factors and Effects on Operational Art, Naval
\nWar College Report, 1999 at p. 4 https:\/\/monkessays.com\/write-my-essay\/dtic.mil 10 May 2010 155 Ibid. 156 Supra, footnote 1132 at p. 63 157 Indonesia Diplomatic Handbook, Washington, DC: International Business Publications 2008 at p. 137
\nhttp:\/\/books.google.se 30 June 2010
\n43
\nAdditionally, Indonesia had indicated that an east \u2013 west sea lane through the
\nJava Sea, which is a major normal route for international navigation, was not likely to be
\nincluded in the proposal. The United States and Australia which are concerned about the
\nnon-inclusion of other normal routes opposed the proposal stressing on the requirements
\nof UNCLOS 1982 that all normal routes should be included in designation of
\narchipelagic sea lanes, hence it urged Indonesia not to submit a proposal unless it
\ninclude all normal routes. 158 Notwithstanding, Indonesia submitted in 1996 its proposal
\nto IMO for the designation of archipelagic sea lanes passage in accordance with Article
\n53(9), with rules to govern their use which resulted from coordination with the user
\nstates.159
\n4.1 The Indonesian Submission
\nThe United States maintains its position that the Indonesian submission should
\nbe regarded as a partial designation only; that the right of archipelagic sea lanes passage
\nshall continue to be applied in routes used for international navigation through the
\narchipelago and that the right of innocent passage should not be affected by the
\ndesignation of archipelagic sea lanes passage.160 Australia\u2019s view in this regard is that
\nthe proposed mechanism shall be interpreted in line with the issue of normal passage
\nroutes, number and location of sea lanes and that the outcome of the consideration of the
\nproposal shall reflect the balance of interests of the user states and archipelagic state.161
\nIn line with the Indonesian proposal, the IMO issued Resolution MSC. 71(69) entitled
\nAdoption of Amendments to the General Provisions of Ships\u2019 Routing (RESOLUTION<\/p>\n
158 Jonathan P. Edwards, The Development and Operational Impact of Indonesia\u2019s Approved Partial
\nSystem of Archipelagic Sea Lane, Naval War College Report 1999 at p. 16 https:\/\/monkessays.com\/write-my-essay\/dtic.mil 10 May
\n2010
\n159 Supra, footnote 132 at p. 64 160 Supra, footnote 23 at p. 328 161 Ibid.
\n44
\nA.572(14), as amended) where the General Provisions for the Adoption, Designation
\nand Substitution of Archipelagic Sea Lanes (GPASL) is embodied in Annex 2 thereof to
\nserve as guidelines for the adoption of proposals on archipelagic sea lanes (see Annex
\n1). GPASL provides the concept of a \u201cpartial archipelagic sea lane proposal\u201d which
\nmeans the proposal made by an archipelagic state which does not meet the requirement
\nto include all normal passage routes and navigational channels as required by UNCLOS
\n(paragraph 2.2). In 1998, in its 69th Maritime Safety Committee session through
\nResolution MSC 72(69) (see Annex 2) the IMO accepted the proposal as partial
\ndesignation of archipelagic sea lanes because it represented only north\/south routes.162
\nThis means that routes used for international navigation which were not covered in the
\nproposal remain available for archipelagic sea lanes passage while the remainder of
\narchipelagic waters is available for innocent passage.163 With regard to the east-west
\nroute from the southern end of the Malacca Strait to the Arafura Sea, it will be required
\nto satisfy the IMO rules on designation of archipelagic sea lanes passage.
\nThe accepted proposal of Indonesia consists of the following three north-south
\nroutes of archipelagic sea lanes passage:164
\nASL I: Sunda Strait \u2013 Karimata Strait \u2013 Natura Sea \u2013 South China Sea
\nASL II: Lombok Strait \u2013 Makasar Strait \u2013 Sulawesi Sea
\nASL III A: Sawu Sea \u2013 Ombai Strait \u2013 Banda Sea (West part of Burn Islands)
\n\u2013 Seram Sea (Eastern part of Mongole Island) \u2013 Maluku Sea –
\nPacific Ocean
\nASL III B: Timor Sea \u2013 Leti Strait \u2013 Banda Sea (West part of Burn Islands) \u2013
\nSeram Sea (Eastern part of Mongole Island) \u2013 Maluku Sea –
\nPacific Ocean<\/p>\n
162 Supra, footnote 20 at p. 13 163 Ibid. 164 UN DOALOS, Bulletin No.52, New York: United Nations 2003 at p 23; Indonesia Diplomatic
\nHandbook at p 137 http:\/\/books.google.se 30 June 2010
\n45
\nASLIII C: Arafura Sea \u2013 Banda Sea (West part of Burn Islands) \u2013 Seram Sea
\n(Eastern part of Mongole Island) \u2013 Maluku Sea – Pacific Ocean
\nASL I facilitates navigation from the Indian Ocean, through Sunda Strait while
\nASL II, the central route, facilitates navigation from Indian Ocean through Lombok
\nStrait and Makassar Strait and to Sulawesi Sea and Pacific Ocean and Philippine waters
\nand lastly ASL III, which is in the southern part with three branches, facilitates the
\nnavigation from Timor Sea and Arafura Sea to the Pacific Ocean through Sawu Sea,
\nBanda Sea, Seram Sea and Molucca Sea. 165 All these routes were indicated in the map
\nsubmitted to the IMO. It may be noted that the designation did not include east-west
\nroute although the user states insist on this issue.
\nFigure 2 Indonesian Archipelagic Sea Lanes I, II and III
\nSource: Resolution MSC.72(69) https:\/\/monkessays.com\/write-my-essay\/imo.org at p. 9
\nThe IMO Resolution was subsequently implemented through Indonesian
\nGovernment Decree No. 37\/2002 dated 28 June 2002 and referred to as Alur Laut<\/p>\n
165 Ibid.
\n46
\nKepulauan Indonesia (ALKI) which made it the very first archipelagic State to designate
\narchipelagic sea lanes passage (Annex 3).166 This decree was primarily based on the
\nrules of UNCLOS 1982 and the outcome of consultations with the user states. It
\nacknowledges certain rights of user states.167 Article 2(1) thereof provides the right of
\ninnocent passage of foreign vessels through Indonesian territorial seas and archipelagic
\nwaters for transiting from one part of the EEZ or high seas to another part of the EEZ or
\nhigh seas; Articles 2, 3 and 11 prescribe the right of archipelagic sea lane passage
\nthrough certain parts of the Indonesian territorial seas and archipelagic waters referred to
\nin the Decree as specific archipelagic sea, while Article 4(1) provides the right to
\nnavigate in normal mode solely for the purpose of continuous, direct, expeditious
\npassage and unobstructed transit in line with Article 53 (3) of UNCLOS. The Decree
\nalso requires that ships and aircrafts exercising the right of archipelagic passage and
\noverflight are not allowed to deviate more than 25 nautical miles from the axis of the
\narchipelagic sea lane and may not navigate or fly closer to the coast than 10% of the
\ndistance between the nearest points on the islands bordering the sea lane.168
\nWith the adoption of the proposal and its subsequent enactment into national
\nlegislation, Indonesia has indicated its intention to balance the interests of the user states
\nwith its own national interest although the user states continue to press the issue on
\nadditional routes.
\n4.2 The User States\u2019 Perceptions on Indonesia\u2019s Partial ASLP
\nDesignation
\nThe prerogative given by UNCLOS to the archipelagic states to submit sea lanes
\nthat they want to be approved may give rise to a situation where they may only propose<\/p>\n
166 Supra, footnote 132 at p. 63 167 Ibid. at p. 66 168 Ibid.
\n47
\na small number of sea lanes for designation that best serve their interest.169 This is
\nreflected in the submission of Indonesia which has become the primary concern of the
\nUnited States and Australia because an east-west passage is not included in the
\ndesignation of archipelagic sea lanes passage although it is a normal route under
\nUNCLOS. According to a study conducted in the US Naval War College in 1998,
\npotential consequences to operational planning elements may impact the operational
\ncommander in the case that Indonesia fails to provide or designate a sufficient number of
\nsea lanes particularly through the east-west corridor. 170 These include effects on the
\nsequencing and synchronization of forces if the routes in the archipelago are insufficient
\nbecause alternative routing will be employed; it will expand or extend the overall force
\nstructure and logistics trail thereby committing more assets to support movements,
\ndeception actions and operational protection requirements and an increased risk to force
\nstructure is immediately present because of the funnelling of forces created as both
\ncommercial and military assets are forced to utilize designated archipelagic sea lanes.
\nThis means that insufficient routes may reduce the flexibility available to operational
\ncommanders in passing through Indonesian archipelagic waters which will definitely
\nhamper operations. In a related study in 1999, in the case that the limited number of
\narchipelagic sea lanes will not affect operational plans, it will still require changes at the
\ntactical level where ships will need to remain within the designated sea lane and will no
\nlonger be able to operate close to the shore for safety reasons.171
\nRelatively, while Indonesia maintains before the international arena that its
\ndesignation of archipelagic sea lanes is only partial and that the right of archipelagic sea
\nlanes passage is available to transiting vessels that navigate through normal routes used<\/p>\n
169 Supra, footnote 154 at p. 8 170 Ibid. at p 10 171 Supra, footnote 158 at p. 22
\n48
\nfor international navigation, Government Decree 37\/22 provides otherwise. 172 It is
\nstated in this law that innocent passage is the only right of passage that could be
\nexercised outside the three designated sea lanes, which creates difficulty for transiting
\nvessels.173
\nConsidering that the user states are persistent in their stand that east-west route
\npassage is considered as normal route, the US asserted what it claimed to be customary
\nright, sent an aircraft carrier USS Carl Vinson and five fighter aircrafts on manoeuvres
\nnear the island of Bawean in Java Sea in July 2003, which created inconvenience in
\nIndonesia.174 Five F18 Hornet jets escorting the aircraft carrier were detected by Air
\nForce radar manoeuvring for more than 2 hours over Bawean Island in East Java.
\nIndonesian government officially lodged its \u201cdeep concern\u201d about the incident through
\nUS Ambassador in Indonesia during that time, stating that the US Navy F18 Hornets
\nmay be violating Indonesia\u2019s airspace.175 Aside from this incident, it has been noted that
\nsome user states claim that they are passing through international waters even if they are
\nnavigating through Indonesian waters and even in the designated archipelagic sea lanes.
\nIndonesia is not pleased with this perception but it has so far tolerated the breaches for
\nthe sake of understanding the balance that was so painstakingly negotiated over many
\nyears in order to avoid unnecessary conflict.176<\/p>\n
172 Penny Campbell, Indonesian archipelagic Sea Lanes, Australian Maritime Issues 2005, Papers in
\nAustralian Maritime Affairs No.16 p. 118 https:\/\/monkessays.com\/write-my-essay\/navy.gov.au 25 June 2010 173 Ibid. 174 Supra, footnote 131 at p. 68 175 Tiarma Siboro, Minister summons US Envoy over Hornet intrusion, The Jakarta Post 11 July 2003
\nhttp:\/\/www,thejakartapost.com\/news\/2003\/07\/11\/minister-summons-us-envoy-over-hornet-intrusion.html
\n; Fabiola Desy Unidjaja, Government to protest U.S. over intrusion, The Jakarta Post 10 July 2003
\nhttps:\/\/monkessays.com\/write-my-essay\/thejakartapost.com\/news\/2003\/07\/10\/government-protest-us-over-intrusion.html
\n176 Supra, footnote 151 at p. 391
\n49
\n4.3 Present Interpretation of Archipelagic Sea Lanes Passage
\nThe issues raised by the user states particularly the United States and Australia
\nwere all embodied in the GPASL. The designation of archipelagic sea lanes passage is
\nregarded as partial under this General Provision. This means that Indonesia is still
\nrequired to propose for adoption further archipelagic sea lanes including all normal
\nroutes and navigational channels; it has to inform the IMO of its plans for the future
\ndesignation and submission of additional sea lanes, and foreign states are entitled to
\nexercise the right of archipelagic sea lanes passage through all routes used for
\ninternational navigation.177 However, the GPASL is considered as against the provision
\nof Article 53(4) as the article provides only a designation covering all normal routes
\nused for international navigation.178
\nAlso, this brings the situation where the user states will continue to request
\nadditional routes for archipelagic sea lanes passage and would take away the prerogative
\ngiven to the archipelagic state of determining the necessary archipelagic sea lanes for
\nmanagement of maritime traffic.179 Further, the consideration by IMO of Indonesia\u2019s
\nsubmission reflects that the regime is focused on the preservation of interests of user
\nstates and further diminishes the control of archipelagic states. 180 If this is the case, this
\nsituation is not favourable to the archipelagic state because its position may no longer be
\nequal to that of the user states. Article 53 may not be implemented by other archipelagic
\nstates and they may choose to apply restrictive policies to govern the use of its waters. In<\/p>\n
177 Supra, footnote 23 178 Supra, footnote 139 179 Jay L. Batongbakal, Barely Skimming the Surface: Archipelagic Sea Lanes Navigation and the IMO in
\nAlex G. Elferink, Donald R. Rothwell (Editors) Oceans Management in the 21st Century: Institutional
\nFramework and Response, Leiden: Brill Academic Publishers 2004 at p. 90
\nhttp:\/\/site.ebrary.com\/lib\/wmulib 10 April 2010 180 Supra, footnote 23 at p. 332
\n50
\nthe case of Indonesia, it chose to designate archipelagic sea lanes passage and
\nconsidered it as a step closer to implementing its rights over its waters.181
\n4.4 Factors Affecting the Archipelagic Sea Lanes
\nIt bears stressing that in designating archipelagic sea lanes passage, it would be
\nimportant for an archipelagic state to take into great consideration its legitimate security
\ninterests as well as economic and environmental matters.182 Indonesia has taken note of
\nthese factors, particularly the matter of security. The interpretation of the user states on
\nIndonesian archipelagic waters and the archipelagic sea lanes passage as international
\nwaters is a security issue because it involves claim of jurisdiction over Indonesian
\nwaters. Conflict may arise if both states assert their respective rights over these waters.
\nRecall the incident in July 2003 involving US F18 Hornet jets detected flying Indonesian
\nairspace without prior clearance while escorting the aircraft carrier USS Carl Vinson that
\nalarmed the government.183 Although there were no incidents of similar nature that have
\nbeen recorded since that time, it does not follow that it will not be repeated in the near
\nfuture.
\nOther major factors that affect archipelagic sea lanes passage and the larger part
\nof Indonesian waters are the maritime crimes of piracy and armed robbery. It may be
\nnoted that ASL I passes through the Natuna Sea before dividing towards the Singapore
\nStrait and South China Sea. In 2009, International Maritime Bureau (IMB)184 identified
\nNatuna Islands, Anambas and Mangkai islands as the three piracy-prone areas in<\/p>\n
181 Supra, footnote 132 at p. 69 182 Supra, footnote 18 at p. 169 183 Supra, footnote 132 at p. 68 184 A specialised division of International Chamber of Commerce (ICC) established in 1981to serve as a
\nfocal point in fighting maritime crimes and malpractices. https:\/\/monkessays.com\/write-my-essay\/icc-ccs.org 22 July 2010
\n51
\nIndonesian waters. 185 The IMB also issued warnings to mariners to take necessary
\nprecautionary measures while passing through these waters (see Annex 4). The pirates
\nare armed with guns, knives or machetes and many attacks have gone unreported.
\nSimilarly, the Regional Cooperation Agreement on Combating Piracy and Armed
\nRobbery against Ships in Asia (ReCAAP)186 made a special report on piracy incidents in
\nNatuna, Anambas and Magkai Islands where a total of eleven incidents of piracy attacks
\non vessels underway transpired in the area between January to June 2010. The analysis
\nof ReCAAP in these incidents is that those reported in 2008 and 2010 were more
\nscattered and occurred in a larger area than those in 2009.187 These two reports signify
\nthat piracy and armed robbery, as the case may be, are taking place in the area where
\nASL I lies and divides to Singapore Strait and South China Sea. The pirates operate in
\nthese areas considering that the waters are less monitored because of the distance.
\nMore attention must also be given to terrorism at sea as a problem that is likely
\nto grow in the future. Although there have been no major incidents of terrorist attacks on
\nboard the vessel in the areas where three archipelagic sea lanes traverse, in case a
\nterrorist attack were to occur, it would have an immense impact not only on the security
\nof the state but also on the global economic and political situation. The trade would
\ndefinitely be disrupted because these areas may be closed for shipping or fishing in case
\nof a single terrorist attack. Taking into account the total value of trade passing through
\narchipelagic sea lane, 300USD trillion annually that would be lost.188 In the event that
\nSunda Strait and the Lombok-Makasar Strait (ASL II) would be blocked, the only detour
\navailable is to go around the south of Australia, hence transporting crude oil from<\/p>\n
185 ICC IMB Piracy and Armed Robbery Against Ships Report \u2013 Annual Report 2009 at p. 22
\nhttps:\/\/monkessays.com\/write-my-essay\/icc-ccs.org 22 July 2010
\n186 The first government-to-government agreement that addresses the incidence of piracy and armed
\nrobbery in Asia. The agreement was finalised on 11 November 2004 in Tokyo, and came into force on 4
\nSeptember 2006. https:\/\/monkessays.com\/write-my-essay\/recaap.org 02 July 2010 187 Special Report on Situation Update off the Islands of Anambas, Natuna and Mangkai, ISC Special
\nReport 02\/2010. https:\/\/monkessays.com\/write-my-essay\/recaap.org 02 July 2010 188 Djoko Sumaryano, The Indonesian Maritime Coordinating Board in Robert Cribb and Michelle Ford
\n(Editors) Indonesia Beyond the Water\u2019s Edge, Pasir Panjang: ISEAS Publishing at p. 134
\n52
\nMiddle East to Japan would add two weeks to the voyage and additional eighty (80) or
\nso tankers would be needed to fulfil crude oil requirements.189 Terrorism at sea in this
\nregard cannot be discounted because the vessels are regarded as vulnerable targets and
\nsea lanes are being used by international vessels whether commercial or military.
\nTerrorists could gain the international attention that they always seek in staging an attack
\nor series of attacks.
\nThe significance of Indonesian sea lanes cannot be discounted. They definitely
\nprovide the shortest routes from the Indian Ocean to the rest of the world. While there
\nare still important practical issues to be resolved relative to Indonesian sovereignty and
\nthe reasonable rights of international shipping to pass through Indonesian waters,
\nIndonesia chose to designate archipelagic sea lanes passage and considered it as a step
\ncloser to implementing its rights over its waters.190<\/p>\n
189 Kazumine Akimoto, The Current State of Maritime Security \u2013 Structural Weaknesses and Threats in
\nthe Sea Lanes, \u201cMaritime Security in Southeast Asia and Southwest Asia\u201d conference paper 2001 at p. 7
\nhttps:\/\/monkessays.com\/write-my-essay\/iips.org 24 June 2010 190 Supra, footnote 132 at p. 69
\n53
\nCHAPTER V
\nTHE PHILIPPINES OUTSTANDING CONCERNS<\/p>\n
Similar to Indonesia, the Philippines, as one of the principal sponsors of the
\narchipelagic principle brought this concept to the international community for the sake
\nof unity of land, water and people and territorial integrity. The Philippine archipelago
\nconsists of 7,107 islands which are linked by waters. It has a total coastline length of
\n36,289 kilometres and total land to water ratio of 1:1.2. The land area is approximately
\n300,000 square kilometres and total water area of 2.2 million square kilometres.191 It lies
\nbetween the Indian Ocean and the Pacific Ocean. The waters around the archipelago are
\nimportant to international navigation because commercial ships passing through the
\nMalacca Strait bound for Guam and Hawaii, must pass through Philippine archipelagic
\nwaters.192 These geographic characteristics suggest the need for the country to protect
\nthe security of its waters from unlawful use, external threats and to preserve marine
\nresources and the environment.193
\nPrior to UNCLOS 1982, the Philippines had already embraced the archipelagic
\ndoctrine and incorporated it in its national legislations in 1961 through the Republic Act
\n(RA) 3046 as amended by RA 5446 of 1968 as well as in the1935 Constitution and the<\/p>\n
191 The World Bank Group, Coastal and Marine Resource Management, The Philippine Environment
\nMonitor 2005 at p. 1 http:\/\/www-wds.worldbank.org 4 August 2010 192 Mario Manansala Designation of Sea Lanes in the Philippines, in Maribel B Aguilos (Editor) Ocean
\nLaw and Policy Series Vol 1 No1, Diliman: Institute of International Legal Studies 1997 at p. 7 193 Supra, footnote 35 at p. 1
\n54
\n1973 Constitution. Further, it adopted the principle in Article I of the 1987 Constitution
\nwhich specifically defines Philippine territory as:<\/p>\n
\u201cThe national territory comprises the Philippine archipelago,
\nwith all the islands and waters embraced therein, and all other
\nterritories over which the Philippines has sovereignty or
\njurisdiction, consisting of its terrestrial, fluvial and aerial
\ndomains, including its territorial sea, the seabed, the subsoil, the
\ninsular shelves, and other submarine areas. The waters around,
\nbetween, and connecting the islands of the archipelago,
\nregardless of their breadth and dimensions, form part of the
\ninternal waters of the Philippines.\u201d194
\nFrom the time the Philippines issued note verbale in 1955, its state practice has
\nalways been put in question as to whether the government complies with international
\nlaw because its laws on maritime zones are not consistent with it. When the Philippine
\ngovernment signed the UNCLOS 1982, it issued a written declaration that \u201cthe
\nprovisions of the Convention on archipelagic passage through sea lanes do not nullify or
\nimpair the sovereignty of the Philippines as an archipelagic state over the sea lanes and
\ndo not deprive it of authority to enact legislation to protect its sovereignty, independence
\nand security.\u201d 195 It further stated that \u201cthe concept of archipelagic waters is similar to
\nthe concept of internal waters under the Constitution of the Philippines, and removes
\nstraits connecting these waters within the economic zone or high sea from the rights of
\nforeign vessels to transit passage for international navigation.\u201d This very declaration has
\nearned adverse reactions from maritime powers charging that the Philippines was
\nmaking an unauthorized reservation or evading the obligations of the Convention. In
\nresponse, the Philippines issued another declaration in 1988 assuring the State Parties to
\nthe UNCLOS 1982 that it would abide by the provisions of the Convention.196<\/p>\n
194 The 1987 Constitution of the Republic of the Philippines https:\/\/monkessays.com\/write-my-essay\/chanrobles.com\/article1.htm
\n6 July 2010
\n195 Supra, footnote 41 at p. 114 196 Supra, footnote 13 at p. 11
\n55
\nHowever, it may be understood that the conflicting regimes in domestic laws
\nwere enacted prior to its ratification of the Convention. 197 The Philippines is
\ncontinuously revisiting and harmonizing its laws with UNCLOS. Recent development in
\nthis regard was the enactment in March 2009 of RA 9522 otherwise known as an Act to
\nAmend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No.
\n5446, to define the Archipelagic Baselines of the Philippines, and for Other Purposes. It
\nadopted the straight baselines system consistent with Article 47 of UNCLOS. This
\nparticular legislation was deposited with the UN Secretary General on 21 April 2009, in
\ncompliance with Article 47 (9).
\n5.1 Perspective as an Archipelagic State
\nFrom the country\u2019s standpoint, there is no doubt that the Philippines is
\ndetermined to fulfil its duties and obligations under the Convention. However, it is how
\nthese obligations and duties may be best carried out while at the same time protecting its
\nown interests. 198 It may be noted that based on its 1987 Constitution there is no
\ndistinction between archipelagic waters and internal waters while in the Convention
\nthese two maritime zones are specifically delineated. The archipelagic waters are
\nconstantly equated as internal waters because of the inseparable unity of land and water
\ndomain.199 The waters adjoining land territory are regarded as the extension of the land.
\nFurther, the waters around, between and connecting the islands of the archipelago had
\nalways been highways of communication between the islands which brought the people
\ntogether under one sovereign state.200 They are directly within sight of a large part of the<\/p>\n
197 Supra, footnote 35 at p. 3 198 Jay L. Batongbakal Archipelagic Sea Lanes and Transit Passage Through Straits: Shared
\nResponsibilities and Essential to Implementation, Papers in Australian Maritime Affairs No. 10, 2002 at p.
\n101 https:\/\/monkessays.com\/write-my-essay\/navy.gov.au\/publications 24 June 2010 199 Supra, footnote 41 at p. 45 200 Ibid.
\n56
\npopulation; hence, the government is expected to exercise full control over all the
\nactivities in the archipelagic waters, particularly those undertaken by foreign vessels.201
\nFor this reason, the management of these waters should be closer to the internal
\nwaters regime than to territorial sea regime and the state\u2019s protection of this maritime
\nzone from foreign intrusion is equated with the preservation of national integrity.202 Be
\nthat as it may, although the archipelagic waters are regarded as internal waters, the
\nPhilippines continue to respect and recognize traditional navigational right of innocent
\npassage of foreign vessels over Philippine waters in consonance with the UNCLOS.
\n5.2 The Philippine Archipelagic Sea Lanes Proposal
\nWhile designation of archipelagic sea lanes passage is the consequence of
\nacquiring archipelagic status, the Philippines has yet to submit a proposal to IMO on the
\ndesignation of archipelagic sea lanes passage. This also raised the issue of whether the
\nPhilippines would fulfil its statements made in 1988 that it would harmonize its
\ndomestic legislation with the provision of the Convention and that necessary steps were
\nbeing undertaken to enact legislation dealing with the establishment of archipelagic sea
\nlanes passage.203 Though there was a declaration, the Philippines is of the view that the
\nmatter of designating sea lanes should be studied carefully.204 This is of such vital
\nconcern because it critically puts into test the freedom of navigation, sovereignty over
\nthe archipelagic waters granted by UNCLOS 1982 to the archipelagic states and the
\nPhilippine legislations in this regard.<\/p>\n
201 Supra, footnote 198 at p. 102 202 Ibid., at p. 102 203 Supra, footnote 123 at p. 128 204 Supra, footnote 192 at p. 8
\n57
\nIn line with this, two archipelagic sea lanes were proposed to be designated in the
\ncountry; the East-West sea lane and the North-South sea lane.205 The East-West will
\ntraverse from Balabac Strait to Sulu Sea Junction going through Bohol Sea between
\nNorthern Mindanao and Southern Negros Islands and the Bohol Islands then through
\nSurigao Strait going through Pacific Ocean. The North-South route is from Celebes Sea
\ngoing through Sibuto Passage between Sibuto Island and Simunol Island, Bongao
\npassing through the Sulu Sea to Mindoro Strait into the South China Sea.
\nThe straits of Balabac, Surigao between Leyte and Mindanao are normal routes
\nused for international navigation while the straits of Mindoro, Balabac and Sibuto
\npassage have to be settled because of full sovereignty exercised by the country over
\nthese waters.206 Nonetheless, the proposed sea lanes adequately cover the usual passage
\nroutes because the East-West route will serve the ships coming from the Malacca Strait
\ngoing to Guam, Hawaii and other destinations in the Pacific while the North-South will
\nserve the ships coming from the west coast of Australia and Lombok Strait going to
\nTaiwan, Hong Kong, Northern China, Korea and Japan.207<\/p>\n
205 Ibid. 206 Ibid. 207 Renato B. Fier, Technical Considerations in Designating Sea Lanes, in Maribel Aguilos (Editor)
\nDesignation of Sea Lanes in the Philippines, Diliman, Institute of Legal Studies 1997 at p. 13
\n58
\nFigure 3 Philippine Proposed Archipelagic Sea Lanes Passage
\n(The ASLP are represented in heavy lines)
\nSource: Ocean and Law Policy Series, Vol 1 No. 1 1997 at p11
\nThe proposed sea lanes follow the requirements of UNCLOS specifically that
\nthey should not deviate more than 25 nautical miles to both sides of the axis line,
\nprovided that ships and aircraft do not navigate more than 10% of the distance closer to
\nthe coast between the nearest points on islands bordering the sea lanes.208 This means
\nthat the 25 nautical miles is an allowance for navigational purposes to avoid collisions of
\nships and aircraft but it does not prevent the archipelagic states from prescribing shorter
\ndistance depending on the situation.209 In this regard, the Philippines may limit the
\nphysical extent of the archipelagic waters where the sea lanes may be designated for
\nsafety purposes. Further, the difference provides a greater degree of flexibility in<\/p>\n
208 Supra, footnote 192 at p. 8 209 Supra, footnote 198 at p. 109
\n59
\nprotecting the coast of the islands adjacent to archipelagic sea lanes from intrusion.210 It
\nmay also be noted from the figure above that the sea lanes would traverse in the waters
\nadjacent to the islands where there are existing fishing grounds. Hence, though
\ndeliberation on the matter is being undertaken.
\n5.3 Issues Covering the Philippines Proposed ASLP
\nBased on Article 53 of the UNCLOS, archipelagic sea lanes passage should be
\ndesignated through archipelagic waters, covering all normal routes used for international
\nnavigation and shall traverse to the adjacent territorial sea. Though the Philippine
\nproposal may have covered all routes normally used for international navigation, it is not
\nyet submitted to IMO for approval. A number of factors should be taken into account in
\nthe event that the Philippines chose to designate archipelagic sea lanes.211 These include
\nthe effectiveness of the government to monitor the sea lanes, security of the country,
\nmeasures to ensure safe, expeditious and continuous passage, fisheries and marine
\nenvironment, inter-island shipping and the possible connection with the Indonesian
\nestablished ASLP.
\n5.3.1 Legal Issues
\nIt may be recalled that the archipelagic waters referred to under the Convention
\nare considered as internal waters under the 1987 Constitution. These are the waters
\nlandward of the baselines (though in Philippine legislation they are described as waters
\naround, between and connecting the islands of the archipelago). Under the internal water
\nregime, the state enjoys absolute sovereignty and no right of innocent passage exists.212<\/p>\n
210 Ibid. 211 Supra, footnote 35 at p. 9 212 Supra, footnote 3 at p. 61
\n60
\nThis is the very essence of internal waters under the Philippine Constitution. Entry of
\nforeign vessels may be prohibited and they may be apprehended for intrusion. This is
\nwhere the problem would arise in designating archipelagic sea lanes passage.
\nThere is constitutional issue in designating archipelagic sea lanes passage
\nbecause the waters within the Philippine archipelago are national or internal waters.213 In
\ncase the archipelagic sea lanes passage is established, it follows that the status of internal
\nwaters may be diluted or may be given two characteristics, that is, internal waters with a
\nstrip of archipelagic waters or absolute sovereignty over internal waters can be
\nexercised but diluted with rights given to foreign vessels to pass the internal waters
\nthrough archipelagic sea lanes without permission of the Philippine government.
\n214 It
\nmay be understood that the nature of the internal waters will be diminished because
\nforeign vessels could pass through in normal mode even without prior notice to the
\ngovernment, thereby creating more legal issues.
\nRelatedly, taking into account that the Philippines (to include Cape Verde,
\nDominican Republic and Maldives) has designated archipelagic baselines in a manner
\nnot consistent with Article 47, no right of archipelagic sea lanes passage would exist
\nbecause the presence of archipelagic waters is a condition precedent to this passage.215
\nConsidering the foregoing legal issues, it may be argued that the conflicting
\nregime in domestic law may delay full implementation of Part IV of UNCLOS by the
\ngovernment.<\/p>\n
213 Jorge Coquia, Some Legal and Constitutional Issues on Archipelagic Sea Lanes, in Maribel Aguilos
\n(Editor) Designation of Sea Lanes in the Philippines, Diliman: Institute of International Legal Studies
\n1997 at p. 55
\n214 Gilberto B. Asuque, Legal and Ocean Policy Implications of Sea Lanes Designation in Maribel
\nAguilos (Editor) Designation of Sea Lanes in the Philippines, Diliman: Institute of International Legal
\nStudies 1997 at p. 60
\n215 Martin Tsamensi, Clive Schofield and Ben Milligan, Navigation Through Archipelagos: Current State
\nPractice in Myron H. Nordquist, Tommy T.B. Koh and John Norton Moore (Editors) Freedom of Seas,
\nPassage Rights and the 1982 Law of the Sea Convention, Leiden: Martinus Nijhoff Publishers 2009 at p.
\n445
\n61
\n5.3.2 Environmental Issues
\nOther than legal issues, the marine environment is also taken into account. The
\ngovernment is of the view that by reason of closely knit geographical features,
\nnavigational corridors of 50 nautical miles wide for archipelagic sea lanes passage
\ncannot be accommodated and in case sea lanes are designated, foreign vessels may still
\ndeviate by passing through non-designated routes invoking their right to innocent
\npassage.216 The proposed routes present threats to two of the most delicate marine
\nbiodiversity areas in the country and the world: the Tubbataha Reef, a World Heritage
\nSite; and the Verde Island Passage Marine Corridor which is known as a world hot spot
\nfor marine biodiversity as well as center of shorefish biodiversity.217
\nHence, in lieu of establishing archipelagic sea lanes passage, the whole country
\nwill be designated as a Particularly Sensitive Sea Area (PSSA) 218 and associated
\nprotective measures (APMs) will be instituted in order that security, good order and
\npeace may be better served.219 The APMs will be instituted to guide vessel transit in
\nexercise of the right of archipelagic sea lanes passage. Specific measures, like routeing
\nof ships can be used to control the maritime activities in the PSSA. Simply put,
\ndesignation of archipelagic sea lanes passage may not be applicable to the Philippines
\nbecause of its unique marine environmental features and geographical set up.<\/p>\n
216 Alberto A. Encomienda, Archipelagic Sea Lanes passage and the Philippines, in Myron H. Nordquist,
\nTommy T.B. Koh and John Norton Moore (Editors) Freedom of Seas, Passage Rights and the 1982 Law
\nof the Sea Convention, Leiden: Martinus Nijhoff Publishers 2009 at p. 406
\n217 Ibid. 218 A PSSA is an area that needs special protection through action by IMO because of its significance for
\nrecognized ecological, socio-economic, or scientific attributes where such attributes may be vulnerable to
\ndamage by international shipping activities. Resolution A.982(24) https:\/\/monkessays.com\/write-my-essay\/imo.org\/environment 219 Supra, footnote 216 at p. 406
\n62
\n5.3.3 Major Maritime Security Issues
\nApart from legal and environmental issues surrounding the designation of
\narchipelagic sea lanes passage, maritime security remains to be the primary factor with
\nrespect to passage of vessels through archipelagic waters.220 Maritime security in the
\nPhilippines is a key component of national security and it is specifically defined under
\nits National Marine Policy of 08 November 1994, as \u201ca state wherein the country\u2019s
\nmarine assets, maritime practices, territorial integrity and coastal peace and order are
\nprotected, conserved and enhanced.\u201d221 It involves national security aspects and security
\nissues with regional impact.222 The former includes protection of the integrity of the
\nPhilippine territory whereas the latter comprises illegal activities that fall within the
\npurview of transnational crimes and may affect neighbouring states.223 Protection of
\nterritorial integrity is of paramount importance to Philippine defence policy which
\ninvolves addressing land based insurgencies which is a long standing security concern of
\nthe government and maintaining physical presence to safeguard the territories in the
\nPhilippine-occupied islands in the Spratly.224
\nIn protecting its territory, the passage of military vessels in the Philippine waters
\nwithout prior clearance from the government poses maritime security concerns. The
\ngovernment has never changed its policy of requiring prior notice of passage of warships
\nfor purposes of proper management of the very extensive vessel traffic that takes place
\ndaily and to avoid sources of friction.225 However, different notions of third states on the
\nstatus of Philippine waters may undermine the prior notice requirement of the<\/p>\n
220 Supra, footnote 179 at p. 96 221 Michael Garcia, Progress in the Implementation of the Philippine National Marine Policy: Issues and
\nOption 2005 at p. 57 https:\/\/monkessays.com\/write-my-essay\/un.org\/depts\/los\/nippon 14 July 2010 222 Supra, footnote 35 at p. 18 223 Ibid. 224 Rommel C. Banlaoi, Security Aspect of Philippines-China Relations: Bilateral Issues and Concerns in
\nthe Age of Global Terrorism, Manila: Rex Bookstore Incorporated 2007 at p 86-87 http:\/\/books,google.se
\n01 August 2010
\n225 Supra, footnote 179 at p. 98
\n63
\ngovernment. The United States included the Philippines and Indonesia in its Freedom of
\nNavigation Program 2000-2003 Operational Assertion as countries in which it can
\nregularly assert its freedom of navigation.226 Under this Program it conducted dozens of
\nroutines passage through the waters of these two archipelagos. In 2000, it conducted 28
\ntransits in the Philippine archipelago. It regarded the Philippines to have excessive
\nstraight baselines. In June 2009 it was reported that a Chinese submarine collided with
\nunderwater sonar array towed by destroyer USS John McCain at approximately 144
\nmiles from Subic, potentially placing it in Mindoro Strait, Philippines.227. This indicates
\nthat they have different interpretations on the status of the waters of the Philippines.
\nFrom the point of view of the Philippines, the baselines drawn are not excessive and are
\nconsistent with UNCLOS.
\nOn the other hand, the waters in southern Philippines have always been a
\nmaritime security hot spot even before 9\/11 because it is the home of Islamic separatist
\ngroups. The location where the proposed two archipelagic sea lanes passage will be
\nestablished traverses the Sulu Sea in southern Philippines, an area of major concern to
\nthe government. The Sulu Sea is one of the theatres of operation of the terrorist groups
\nAbu Sayyaf Group (ASG) and Moro International Liberation Front (MILF). There is a
\nstill high risk of a terrorist attack in the Philippines because of the presence in the
\ncountry of these major terrorist groups that definitely have the capabilities to launch an
\nattack at sea. 228 The ASG which was founded in the early 1990s has proven its intent
\nand capability to wage maritime terrorism in the bombing of Christian missionary ship<\/p>\n
226 Annual Report to the President and the Congress 2002 Appendix E Freedom of Navigation Report
\nhttps:\/\/monkessays.com\/write-my-essay\/dod.mil\/execsec 15 July 2010; Freedom of Navigation 2000-2003 Operational
\nAssertion http:\/\/policy.defense.gov 15 July 2010 227 Harry L. Roque Jr, Dangerous Seas, ABS CBN News 15 June 2009 http:\/\/abs-cbnnews,com 28 July
\n2010; Andrew Scutro Navy was tracking Chinese Sub, Navy Times 22 June 2009
\nhttps:\/\/monkessays.com\/write-my-essay\/navytimes.com\/news\/2009\/06\/navy_mccain_china_061909w\/ 28 July 2010; Barbara Starr Sub
\ncollides with sonar array towed by US Naval Ship 12 June 2009
\nhttp:\/\/edition.cnn.com\/2009\/US\/06\/12\/china.submarine\/index.html 28 July 2010 228 Sam Bateman, The Growing Significance of Coast Guards in the Asia-Pacific: A Quiet Development in
\nRegional Maritime Security, Ocean Yearbook Vol. 20 2006 at p. 521
\n64
\nMV Doulos in August 1991; kidnapping of twenty-one people, ten of whom were
\nforeign tourists, in Sipadan, Malaysia in April 2000; abduction of three Americans and
\nseventeen Filipinos in Dos Palmas Resort, Palawan in May 2001 and the bombing of
\nSuperferry 14 in February 2004 after it left Manila Bay.229
\nOther than ASG, the MILF which was founded in 1978 with the aim to establish
\na separate Islamic state in southern Philippines through jihad has also extreme
\nfamiliarity within the maritime domain. The group always denies its involvement in
\nterrorist attacks in the south particularly that of Our Lady of Mediatrix in February 2000
\nat the bay off Mindanao which killed forty people. Despite MILF\u2019s continuous denial of
\ntheir involvement in maritime terrorism, it has to be taken seriously because of its links
\nto regional terrorist organizations, such as the Indonesian terrorist group Jemaah
\nIslamiah (JI), which has been making plans for maritime terrorist attacks in Southeast
\nAsia.230
\nWhile the gruesome terrorist attacks mentioned did not transpire in the proposed
\nASLP area, the ASG proved its maritime terrorist mettle and demonstrated its
\ncapabilities of operating outside its usual maritime turf.231 The members of ASG and
\nMILF live very close to the waters of Basilan, Sulu and Tawi-tawi where they have
\ngained tremendous familiarity with the maritime environment. 232 Presently, these
\nterrorist groups are operating in landbases. However, seas in southern Philippines are
\nmore vulnerable to terrorist attack because of difficulties to guard these waters. The
\nproposed routes for archipelagic sea lanes passage are of no exception.<\/p>\n
229 Rommel C. Banlaoi, Threats of Maritime Terrorism in Southeast Asia in Rupert Herbert-Burns, Sam
\nBateman and Peter Lehr (Editors) Lloyd\u2019s MIU Handbook of Maritime Security, London: Auerbach
\nPublications 2005 at p. 257
\n230 Stefan Ekl\u00f6f Amirell, Political Piracy and Maritime Terrorism: A Comparison between the Straits of
\nMalacca and the Southern Philippine in Graham Gerard Ong-Webb (Ed) Piracy, Maritime Terrorism and
\nSecuring the Malacca Straits, Pasir Panjang: ISEAS Publishing 2006 at p. 61 231 Supra, footnote 229 at p. 258 232 Ibid., at p. 258
\n65
\nIt bears stressing that the discretion to designate archipelagic sea lanes remains
\non the archipelagic state. Although it is not mandatory, non-designation may be
\ndisadvantageous to the Philippines because the right of passage through these sea lanes
\nmay be exercised through routes used for international navigation and the state cannot
\nmonitor and regulate the passage of foreign vessels.233 The advantage to the Philippines
\nif it designates sea lanes is that the routes over which vessels can exercise archipelagic
\nsea lanes passage will become clear and monitoring of traffic therein for possible vesselsource pollution will be better implemented.
\nIn the light of the preceding discussions, the Philippines recognizes the
\nsignificance of archipelagic sea lanes passage. Once the sea lanes are designated,
\nuncontrolled navigation over its waters will be prevented. Vessels shall respect the
\ndesignated sea lanes and corresponding traffic separation scheme based on Article
\n53(11). However, it is carefully balancing the interest between the third states with its
\nown interest as the possessor of jurisdictional rights over its waters. It may revisit its
\nposition with regard to designation of archipelagic sea lanes passage following the
\nnewly enacted Baseline Law, RA 9522, but the paramount importance of security of its
\nwaters will be considered.<\/p>\n
233 Supra, footnote 213 at p. 53
\n66
\nCHAPTER VI<\/p>\n
MARITIME SECURITY CHALLENGES
\nThe Philippines and Indonesia may have different perspectives with regard to the
\nestablishment of archipelagic sea lanes passage. Indonesia preferred to designate these
\nsea lanes to fully acquire archipelagic status while the Philippines chose to withhold the
\ndesignation to assess carefully the needs of the user states and the concerns of the
\ncountry. However, both states have common interests in protecting the archipelagic sea
\nlanes from unlawful interference because such sea lanes traverse the archipelagic waters
\nand the adjacent territorial sea. This implies direct access to the archipelagic domain
\nright around the perimeter.234 Any incident that may happen on the archipelagic sea
\nlanes passage will have direct effect on the archipelagic state concerned because it is
\nwithin its maritime jurisdiction. The nature of archipelagic sea lanes passage is exposed
\nto maritime security challenges be it maritime crimes or foreign intrusion.
\nMaritime security can be defined as those \u201cmeasures employed by owners,
\noperators and administrators of vessels, port facilities and offshore installations and
\nother marine organizations or establishments to protect against seizure, sabotage, piracy,
\npilferage, annoyance or surprise\u201d.235 The definition enumerates the crimes that may be
\ncommitted against vessels while underway or anchored. Also, it denotes the state of
\nbeing free from such threats.236 Maritime targets may be considered less attractive than<\/p>\n
234 Supra, footnote 8 at p. 164 235 Kenneth Gale Hawkes, Maritime Security, Centreville, MD: Cornell Maritime Press, 1989 at p. 9 236 Maximo Q. Mejia Jr., Law and Ergonomics in Maritime Security, Lund: Lund University, Department
\nof Design Sciences, 2007 at p. 5
\n67
\nland and air targets because the terrorist should possess a high degree of skills and
\ncapabilities in executing the attack. However, seas are apparently more vulnerable to
\nterrorist attacks because of embedded difficulty to guard the waters.237 The Philippines
\nand Indonesia contribute 24 and 59 percent, respectively; to the total 92,451 km
\ncoastline of Southeast Asian region.238 This situation raises the concern of these two
\nworld\u2019s largest archipelagos over their respective maritime zones and sea lanes used for
\ninternational navigation even higher. The figure below illustrates the important routes
\nfor international navigation between Indonesia and the Philippines.
\nFigure 4 Southeast Asia Transit Region
\n(The red lines represent Major Ocean Navigation Routes)
\nSource: Navigational Restrictions within the New LOS Context, Geographical Implications
\nfor the United States 1986 at p 290<\/p>\n
237 Supra, footnote 229 at p. 258 238 Ibid.
\n68
\n6.1 Facing Maritime Threats
\nThe attack against US Navy Destroyer, USS Cole in the port of Aden in 2000 and
\nthat of French oil tanker Limburg in the coast of Yemen in 2002 have made the terrorist
\nstatements clear that they can penetrate the force protection and they can affect world
\ncommerce.239 The Limburg attack raised concerns over the possibility that terrorists in
\nthe Southeast Asian region might attempt a maritime terrorist attack in the Straits of
\nMalacca.240 The latter is the shortest route between Middle East and the ever growing
\nAsian market with an estimated 15 million bbl\/d flow in 2006. 241 In recent years,
\ninternational interest in maritime security has been focused on Malacca and Singapore
\nStraits but shipping in the Indonesian archipelago, particularly through Lombok and
\nMakassar Straits is potentially vulnerable to attacks.242 These straits constitute ASL II
\nand similar to other established archipelagic sea lanes passage in Indonesia, they serve
\nas primary shipping lanes for Australian international commercial navigation. In 2004\u2013
\n05, freight carried via the ASL constituted 39 per cent of Australia\u2019s exports by value
\n(50 per cent by weight) and 32 per cent of imports by value (41 per cent by weight). 243<\/p>\n
239 Brian Fort, Transnational Threat and the Maritime Domain, in Graham Gerard Ong-Webb (Editor)
\nPiracy, Maritime Terrorism and Securing the Malacca Straits, Pasir Panjang: ISEAS Publishers 2006 at p
\n29 240 Supra, footnote 230 at p. 58 241 World Oil Transit Chokepoints, US Energy Information Administration 2008 https:\/\/monkessays.com\/write-my-essay\/eia.doe.gov
\n4 August 2010
\n242 Sam Bateman, Piracy and Armed Robbery Against Ships in Indonesian Waters, in Robert Cribb and
\nMichelle Ford (Editors) Indonesia Beyond the Water\u2019s Edge Managing an Archipelagic State, Pasir
\nPanjang: ISEAS Publishing 2009 at p. 117
\n243 Working Paper 69 Bureau of Transport and Regional Economics, Department of Transport and
\nRegional Services, Canberra, Australia, 2007 https:\/\/monkessays.com\/write-my-essay\/btre.gov.au 19 July 2010
\n69
\nTable 1
\nEstimate of ship movements passing through world\u2019s shipping lanes relating
\nto Australia\u2019s trade, 2004\u201305
\nSource: Working Paper 69, Bureau of Trade and Maritime Economics, Australian Maritime Trade 2000-01 2004-05 at p. 13
\nhttps:\/\/monkessays.com\/write-my-essay\/btre.gov.au
\nTable 2
\nEstimate of Australia\u2019s trade passing through world\u2019s shipping lanes 2004-05
\nSource: Working Paper 69, Bureau of Trade and Maritime Economics, Australian Maritime Trade 2000-01 2004-05 at p. 14
\nhttps:\/\/monkessays.com\/write-my-essay\/btre.gov.au
\n70
\nIt may be noted from the tables above that a significant number of vessels
\nrelating to Australian international trade pass through the established archipelagic sea
\nlanes. Although the data reflect only the utilization by Australia of the sea lanes, these
\nshipping routes are important to the world\u2019s sea borne trade between the Indian Ocean
\nand the Pacific Ocean. These particular sea lanes have not been included in scenarios
\nwhere possible terrorist attacks could take place. However, their susceptibility to
\nmaritime threats cannot be ignored.
\n6.1.1 Maritime Terrorism
\nOne of the threats is maritime terrorism. Any disruption caused by the blocking
\nof passage due to this maritime security threat would result in great economic loss for
\nthe user states. Taking Australia as an example, its reliance on Indonesian ASLs
\nconstitutes a significant percentage of its seaborne trade. Any unplanned disruption of
\nsea lines of communications between Australia and the rest of the world could devastate
\nthe country\u2019s national economy.244 This also impacts upon the archipelagic state because
\nthe passage traverses within its maritime zones.
\nThe main terrorist organization operating not only in Indonesia but also in the
\nlarger part of Southeast Asia that has capability of launching attacks be it in the sea or on
\nland is Jemaah Islamiya (JI). It is labelled as Al-Qaeda in Southeast Asia that promotes
\nthe idea of establishing an Islamic Caliphate in the region around Indonesia, Malaysia,
\nSingapore, southern Philippines and southern Thailand.
\n245 JI is known for its hideous
\nterrorism activities particularly the Bali attack on October 2002 that claimed
\napproximately 200 lives. The seaborne capabilities of its key operatives and its notorious
\nhistory of planning suicide missions to attack American naval warships passing through<\/p>\n
244 Supra, footnote 26 at p. 2 245Supra, footnote 229 at p. 255
\n71
\nMalacca Strait in 2001 as well as vessels visiting Changi Naval Base in Singapore make
\nJI as a real threat to maritime security.246
\nOn the other hand, maritime terrorism also affects the waters of the Sulu Sea
\nwhere the proposed north-south and east-west routes of archipelagic sea lanes will
\ntraverse. This is undertaken by extremists groups ASG and MILF. They have records of
\nlinkages with JI which started in Afghanistan in 1980s.247 MILF protects JI members by
\nproviding training facilities for over a decade and key JI fugitives from Indonesia and
\nMalaysia join ASG.
\n248 The members of ASG and JI joined together in July 2005 for
\nunderwater training in Sandakan, Malaysia in preparation for attacking maritime
\ntargets. 249 They routinely move between Sabah, Borneo and their training camps in
\nMindanao by speedboat, local craft and ferries. 250 This alliance of terrorist groups shows
\ntheir capabilities. They are well equipped, well trained and their styles of attacks vary
\nwhich makes future terror activities even harder to predict. This is also an indication that
\nthese terrorist groups may have begun to look at the maritime domain as a new avenue
\nfor attacks.
\n6.1.2 Piracy and Maritime Terrorism
\nPiracy is another great concern for these two states on their waters. Based on the
\nreports of ReCAAP and IMB, as pointed out in Chapter IV, piracy and armed robbery
\nexist in Natuna waters where Indonesian ASL I traverses. It is also worth mentioning
\nthat Indonesian waters continue to be included on the IMB list of piracy prone areas in<\/p>\n
246 Ibid. 247 International Crisis Group, Southern Philippines Backgrounder, Asia Report No. 80 2004
\nhttps:\/\/monkessays.com\/write-my-essay\/crisisgroup.org 12 July 2010 248 Ibid. 249 Supra, footnote 229 at p. 258 250 Sam Bateman, Assessing the Threat of Maritime Terrorism: Issues for the Asia-Pacific Region,
\nSecurity Challenges Vol. 2 Number 3 2006 at p82 https:\/\/monkessays.com\/write-my-essay\/securitychallenges.org.au 12 July 2010
\n72
\nSoutheast Asia. From 2005 to March 2010, IMB recorded a total of 57 piratical and
\narmed robbery attacks in the waters of Indonesia compared to 7 attacks in the Malacca
\nStrait in the same period (see Annex 5). The drop in number of piratical attacks in the
\nMalacca Strait is attributed to the aggressive patrol of littoral states since 2005 but it
\nremains to be in the IMB list of piracy prone area according to ICC-IMB Report First
\nQuarter 2010.
\nWhile piracy is also reported in ports and anchorages and regarded as largely a
\ncriminal issue, it has become a serious security issue by reason of its potential
\nconnection with maritime terrorism.251 It is given that piracy is different from terrorism
\nconsidering that the former is motivated by private ends while the latter is rooted in
\npolitical or religious ideology. However, possible cooperation between terrorists and
\npirates poses a huge risk.252 The indications that piracy is used as a means of funding
\nterrorism activities are conclusive in the case of Southern Philippines.253 Members of
\nMILF and ASG use piracy mainly as a means of fund raising.254 These extremists have
\nbeen accused of conducting piratical attacks in Sulu and Sulawesi as a means of
\ngenerating income for their causes.255 The vast majority of maritime depredations in
\nthese areas have gone unreported to the IMB because it only receives reports in English
\nvia high frequency radio or fax, and language skills and equipment are often lacking. 256
\nAlso, the masters of the vessels prefer not to report the incidents even to local authorities
\nfor fear of another attack. Maritime violence in this area has so far been more serious in
\nterms of human suffering.257<\/p>\n
251 Supra, footnote 229 at p. 260 252 Leticia Diaz and Barry Hart Dubner, The Problem of Utilizing Unilateral Action to Prevent Acts of Sea
\nPiracy and Terrorism: A Proactive Approach to the Evolution of International Law, 32 Syracuse Journal
\nof International Law and Commerce Vol. 1 2004 at p. 1
\n253 Supra, footnote 230 at p. 63 254 Ibid. at p. 60-61 255 Ian Storey, The Triborder Sea Area: Maritime Southeast Asia\u2019s Ungoverned Space, Terrorism Monitor,
\nVol. V Issue 19 2007 https:\/\/monkessays.com\/write-my-essay\/jamestown.org 26 July 2010 256 Ibid. 257 Supra, footnote 230 at p. 64
\n73
\nSeemingly, the international attention on maritime violence remains focused on
\nthe Straits of Malacca because of its importance as a major international sea lane with
\nover 50,000 vessels258 transiting per year and an attack in this area would have a great
\nconsequence to the global economy259. However, if maritime terrorism and piracy are
\nplacing Malacca Straits or any other sea lines of communication in great danger, these
\nmaritime threats also place the archipelagic sea lanes in great danger which will
\nprejudice global maritime trade and specifically the security of the archipelagic state.
\n6.2 Securing Maritime Domain
\nThe issue of passage of military vessels has been the heart of the archipelagic
\nproblem and is likely to remain a source of controversy.260 The primary military concern
\nof third states is the maintenance of their navigational rights within archipelagic waters
\nwhich makes the regime a highly politicized problem. 261 There are differing
\ninterpretations of user state and archipelagic state on various issues surrounding the right
\nof archipelagic sea lanes passage of military vessels and aircrafts.
\n\u201cnormal mode\u201d
\nThe term \u201cnormal mode\u201d in Article 53 (3) provides an undetermined range of
\nactivities for warships navigating archipelagic waters which are not permitted in the case
\nof innocent passage in territorial seas.262 The meaning of \u201cnormal mode\u201d is not given in
\nUNCLOS 1982.263 From the context and from the negotiating history, the term was<\/p>\n
258Supra, footnote 241 259 Supra, footnote 230 at p. 64 260 Supra, footnote 8 at p. 162 261 Supra, footnote 13 at p. 24 262 Supra, footnote 179 at p. 97 263 Supra ,footnote 21 at p. 342
\n74
\nintended to refer to that mode which is normal or usual for navigation by a particular
\ntype of ship or aircraft making the passage; hence, the employment of radar, sonar and
\ndepth finding devises would be included if they are normally used in navigation.264 The
\nterm could also include submerged transit, maintenance of ship formation, continuous
\noperation of naval surveillance and monitoring equipment, constant weapon readiness
\nand aircraft launch and recovery. 265
\nUnder Article 39(c), warships navigating in normal mode shall refrain from any
\nactivities other than those incident to their normal modes of continuous and expeditious
\ntransit except in cases of force majeure or by distress. This means that they are not
\npermitted to engage in any other activities like conducting war game exercises, making
\ncovert transmission or hydrographic surveys. Otherwise, navigating in normal mode
\nwould be contrary to continuous and expeditious passage required by Article 53(3)
\nwhich are the obligations that fall on the transiting ships or aircraft in archipelagic sea
\nlanes passage.266 Also, this may bring the situation where the archipelagic sea lanes
\nwould be considered as a playground of foreign warships which is not favourable to
\narchipelagic states.
\n\u201cconnecting parts of the high sea\u201d
\nRelatedly, the fact that archipelagic sea lanes passage may further proceed
\nthrough territorial sea can be interpreted in a broad sense, as connecting parts of the high
\nseas or exclusive economic zone.267 The user states construe sea lanes as extensions of
\nthe high seas or EEZ while the archipelagic states regard them only as a link between
\none part of the high seas or EEZ and another part of the high seas or an EEZ. In<\/p>\n
264 Ibid. 265 Supra, footnote 179 at. p 97 266 Supra, footnote 21 at p. 477 267 Supra, footnote 13 at p. 27
\n75
\nasserting their respective rights, the former would always maintain freedom of
\nnavigation while the latter would claim sovereignty over the archipelagic waters
\npursuant to Article 49(4).
\nIn the reported incident mentioned in the preceding Chapter involving a US
\ndestroyer and Chinese submarine, the states concerned claimed that they were in
\ninternational waters. It may be noted that the location points to Mindoro Strait, one of
\nthe routes proposed as north-south archipelagic sea lanes. While Philippine government
\ndid not file a diplomatic protest with either the US or China and chose not to commence
\na political discussion on the issue, this has caused uproar among civil society. The
\nincident was regarded as one of the many unnoticed intrusions in the Philippine
\narchipelago because of its vast maritime space and extremely limited surveillance
\ncapability. A similar case took place in Indonesia as mentioned in Chapter IV which
\nprompted the citizens to push the government to regularize a single east-west route
\nthrough Java Sea.
\nIn the case that the warships mentioned or any other foreign warships are
\nexercising the right of archipelagic sea lanes passage in that particular route, the
\nUNCLOS 1982 requires that the act of passing should be continuous; vessels shall
\nproceed without delay and shall not cause any threat to the security of the archipelagic
\nstate. In case of an aircraft, the right of overflight is restricted to air routes above sea
\nlanes which preclude its application to overflight above land territory.268 It is important
\nfor foreign warships or aircraft to proceed without delay through these sea lanes to
\nprevent any notion of performing other activities prejudicial to the security of the
\narchipelagic state. Hence, archipelagic sea lanes passage means no-stopping passage
\nwhere there should be no activities may be conducted.
\nBoth the Philippines and Indonesia prefer prior notice of passage of warships
\nbecause the mere presence of military vessels within the archipelagic waters if there is<\/p>\n
268 Ibid.
\n76
\nno military exercise raises a security issue. Indonesia requires prior notification for
\nwarships entering its territorial sea.269 This may not be convenient for the user states on
\nthe grounds that it hampers the continuous and expeditious passage. However, this
\nrequirement is designed to prevent any surprise to naval forces securing the waters,
\nwhich may create other issues between third states and the archipelagic state. In practice,
\nboth states recognize the navigational right of third states over their archipelagic waters
\nwherein even statements of excessive claims are oftentimes tolerated. They further allow
\nforeign warships to pass through the routes normally used for international navigation.
\n\u201clevel of jurisdiction\u201d
\nEmphases should also be made on the level of jurisdiction that the archipelagic
\nstate may exercise over the vessel exercising the right of archipelagic sea lanes passage.
\nIt bears stressing that Article 42 applies mutadis mutandis to archipelagic sea lanes
\npassage. It provides that the application of laws and regulations shall not have a practical
\neffect of denying, hampering or impairing the right of passage. In this regard, the level
\nof jurisdiction is prescriptive only.270 This level of jurisdiction allows a coastal state to
\nrequire ship\u2019s compliance with safety rules, fishing, pollution control and customs
\nlaws.271 Ships may not be inspected, arrested, detained, refused passage or subjected to
\nother forms of control that would impair the right of passage.272 In this regard, the
\narchipelagic state could only exercise its enforcement jurisdiction to the full extent in
\ncase the ship would voluntarily enter the state\u2019s ports or in some other way comes within
\nthe state\u2019s competence to totally exercise its enforcement jurisdiction.273 Nonetheless,<\/p>\n
269US Freedom of Navigation Program FY 2000-2003 http:\/\/policy.defense.gov\/gsa\/cwmd\/docs 4 August
\n2010
\n270 Supra, footnote 21 at p. 377 271 Supra, footnote 24 at p. 34 272 Supra, footnote 21 at p. 377 273 Ibid.
\n77
\nthese restrictions should not affect the right of the archipelagic state to board a particular
\nvessel passing through the sea lanes based on reasonable suspicions that it is engaged in
\npiracy or in unlawful acts or is a ship without flag.
\nIt is given that the right is non-suspendable under any circumstances and that
\npassage of foreign warships in normal mode cannot be impeded. However, by reason of
\nthis limited jurisdiction, the archipelagic state may exercise other options for the sake of
\nits self preservation in the event it is confronted with serious maritime security issues
\ncaused by vessels exercising the right. It may be recalled that there were times
\nparticularly in 1988 where Indonesia closed or attempted to close some of its straits and
\nin 1992 it questioned the passage rights of an Australian submarine navigating through
\nSunda Strait.274 These situations indicate that the archipelagic state would implement
\nnecessary measures to ensure that its national interest is adequately protected.
\n6.3 Advantages of Archipelagic Sea Lanes Passage<\/p>\n
As the seaborne trade flows into and within the Asia-Pacific region increase, the
\nreliance on the sea as a mode of transport also increases.275 This development makes the
\nsecurity of sea lanes even more crucial as they are considered major arteries from which
\nthe wealth of regional economic progress will spread.276 It is important that navigation
\nof commercial shipping in Southeast Asia should be free and safe despite of the
\nchallenges.
\nOne of the advantages of designating sea lanes is the proper monitoring of vessel
\ntraffic on routes normally used for international navigation. Once sea lanes are
\ndesignated, foreign vessels, particularly warships, are confined to exercise the right of<\/p>\n
274 Supra, footnote 23 at p. 330 275 Josua Ho, The Security of Sea Lanes in Southeast Asia, Military Technology Academic Research
\nLibrary 2005 at p. 14 https:\/\/monkessays.com\/write-my-essay\/apcss.org 25 June 2010 276 Ibid.
\n78
\npassage through designated archipelagic sea lanes and can only exercise innocent
\npassage through the remaining archipelagic waters.277 This will prevent warships from
\nnavigating within any part of the state\u2019s maritime zones and further claim that they are
\nexercising the right, thereby indiscriminately opening the whole archipelago to
\narchipelagic sea lanes passage. It facilitates the transport of seaborne trade because
\nforeign commercial vessels would traverse the shortest international route in a
\ncontinuous and expeditious manner. For Indonesia, the designation enhanced the safety
\nof navigation, protection of the environment and also the security of maritime domain.278
\nWith regard to designation of east-west passage, it requires thorough deliberation to
\nensure safety of passage and the marine environment and that the security of Indonesia
\nwould be safeguarded.279
\nOn the other hand, the Philippines is aware that the sea lanes are the lifeline of
\nthe region and securing them provides unhampered access to markets and investment
\nopportunities on economies within the region.280 Notwithstanding the restrictive nature
\nof passage regime in archipelagic waters, it may be proper and advantageous for the
\ncountry to use the designation as a means of maintaining a relationship with the
\ninternational community particularly the user states traversing its waters.281
\nIn case the Philippines decides to push through with the designation of
\narchipelagic sea lanes following the enactment of the new baseline law, the country may
\nconsider designating a minimum number and only the major routes used for
\ninternational navigation should be covered for purposes of archipelagic sea lanes<\/p>\n
277 Supra, footnote 172 at p. 116 278 Supra, footnote 151 at p. 389 279 Supra, footnote 132 at p. 68 280 Lowell B. Bautista, The Legal Status of the Philippine Treaty Limits of Territorial Waters Claim in
\nInternational Law: National and International Legal Perspective. University of Wollongong Research
\nOnline 2010 at p. 185 http:\/\/ro.uow.edu.au 25 July 2010 281 Jay L. Batongbakal, The Philippines\u2019 Right to Designate Sea Lanes in Its Archipelagic Waters Under
\nInternational Law in Maribel Aguilos (Editor) Designation of Sea Lanes in the Philippines, Diliman:
\nInstitute of International Legal Studies 1997 at p. 114
\n79
\npassage.282 In any case that these normal routes accommodate the interests of the major
\nuser states, the Philippines may choose to enter into bilateral agreements with, e.g., the
\nUS for its naval interest and Australia for its commercial interest.283 Considering the
\nimportance of protecting environmentally sensitive areas, it would also be in the interest
\nof the country to limit the passage by certain types of vessels with special types of cargo
\nthrough certain sea lanes.284 The government may also prescribe the areas to be avoided
\nor provide a traffic separation scheme in case the route would traverse a declared
\nPSSA285 as long as it would not impede the passage. This would ensure the safety of
\nnavigation through the designated sea lanes as well as protect the marine environment
\nand its maritime security.
\nThe designation of archipelagic sea lanes carries with it the obligation to keep
\nthem safe. Both states should focus on capability building measures whether at the
\nnational level or regional level to ensure the safety of navigation. Cooperation between
\nthe governments of Indonesia and the Philippines for the possible connection of ASL II
\nand the project ( help with nursing paper writing from experts with MSN & DNP degrees)ed north-south route should be studied in order to safeguard the passage.
\nContinuous coordination is necessary to overcome the challenges of maritime security
\nalong the sea lanes as well as the entire maritime domain.<\/p>\n
282 Supra, footnote 123 at p. 129 283 Ibid. 284 Supra, footnote 18 at p. 170 285 Raul Pedroso, Archipelagic Sea Lanes Passage in Myron Nordquist, Tommy T.B. Koh and John
\nNorton Moore (Editors) Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention,
\nLeiden: Martinus Nijhoff Publishers 2008 at p. 459
\n80
\nCHAPTER VII
\nCONCLUSION
\nIt is worth noting that maritime security challenges related to archipelagic sea
\nlanes passage being faced by the Philippines and Indonesia encompass general concerns
\nfor the security of the maritime domain and crimes that may be committed through the
\nuse of the sea. Differing interpretations on the status of passage create security issues.
\nMaritime crimes such as piracy, maritime terrorism and armed robbery against ships in
\nthe maritime domain are among the factors that have a potentially great impact to sea
\nlanes be they archipelagic sea lanes or routes or straits used for international navigation.
\nNotwithstanding, both states are conscious of the interests of maritime powers with
\nregard to strategic and economic dependence on the passage through the archipelagos.
\nBoth continue to protect the needs of the user states by implementing measures to keep
\nthe shipping lanes free from obstruction.
\nIn this regard, the claims of the archipelagic states, the Philippines and Indonesia,
\nfor special regimes and for recognition as single entities cannot be construed as mere
\nclaims to extend maritime jurisdiction. 286 They are not plain eager assertions of
\nsovereign control over the waters connecting the islands of the archipelago. It is
\nextremely important for these states to preserve territorial integrity which serve as a
\nstepping stone to economic development. The specialized regime of archipelagic sea
\nlanes passage was negotiated in the hope that this scheme would achieve a balance<\/p>\n
286 Supra, footnote 18 at p. 45
\n81
\nbetween the rights of navigation of third states and the archipelagic states\u2019 respective
\nnational interests.
\nIn exercising the option given by UNCLOS 1982 under Article 53, the
\narchipelagic states may evaluate the advantages and disadvantages this designation
\nmight bring in the exercise of sovereignty over their maritime zones. In the case of
\nIndonesia, as the first state to designate archipelagic sea lanes, it considers the move as a
\nstep closer to implementing its rights over its waters although the designation was held
\nby the IMO as \u201cpartial designation\u201d. The issue of \u201cpartial designation\u201d creates
\ncontroversy to the user states but as far as Indonesia is concerned, it has carried out its
\nresponsibility to the international community. The Philippines, on the other hand,
\ndetermined that this matter should be carefully weighed in light of new developments in
\nmaritime security before it could finally implement Article 53. Be that as it may, it is
\nimportant that the legislations to be adopted in this regard be consistent with UNCLOS
\nand that the state practice should uphold overall interests.
\nThe regime brings both advantages and disadvantages. It facilitates transport of
\nseaborne trade and movement of military vessels while the state that designated the same
\nis able to properly monitor vessel traffic on routes normally used for international
\nnavigation. On the other hand, the disadvantages to the archipelagic state are the nonsuspendable feature of the right and the limited jurisdiction that may be exercised upon
\nthe vessel. It is true that freedom of navigation remains a residual fundamental freedom
\nwhich can be limited only when the need to do so is demonstrated. 287 However,
\nmeasures by archipelagic states such as coastal monitoring\/surveillance or boarding of
\nsuspect vessels might be justified in cases where the activities of foreign vessels affect
\nthe security of the archipelagic sea lanes or the maritime domain in general. Foreign
\nwarships and commercial vessels might consider these measures as obstructions to<\/p>\n
287 Supra, footnote 4
\n82
\ncontinuous navigation. Nevertheless, preventive measures should not be interpreted as
\nencroachments on passage rights but should be viewed as initiatives advantageous to
\nboth user states and archipelagic states.
\nThe principle introduced by Grotius does not mean freedom to navigate in
\naccordance with the domestic laws of the flag state alone but should be understood as
\nnavigation, trade and commerce within the framework of international law. Hence, the
\nresponsibility must be shared between the user states and the archipelagic state.
\nBalancing of interests, which is the very purpose of introducing this specialized regime,
\ninvolves careful consideration of the concerns of both sides and continuous
\nreconciliation of the interests involved.
\n83
\nBIBLIOGRAPHY
\nBOOKS
\nAlexander, Lewis M. Navigational Restrictions within the New LOS Context,
\nGeographical Implications for the United States, Peace Dale, RI: Offshore
\nConsultants, 1986
\nAguilos, Maribel B (Editor), Designation of Sea Lanes in the Philippines, Ocean Law
\nand Policy Series Vol 1 No1, Diliman: Institute of International Legal Studies,
\n1997
\nBrown, E. D., The International Law of the Sea, Volume I. Aldershot: Darmouth
\nPublishing, 1994
\nChurchill, R.R. and Lowe, A.V., The Law of the Sea,3rd Edition, Manchester:
\nManchester University Press, 1999
\nCribb, Robert and Ford, Michael (Editors), Indonesia Beyond the Water\u2019s Edge:
\nManaging an Archipelagic State, Pasir Panjang: ISEAS Publishing, 2009
\nHawkes, Kenneth Gale Maritime Security, Centerville, MD: Cornell Maritime Press,
\n1989
\nHo, Joshua and Raymond, Catherine Zara (Editors), The Best of Times, The Worst of
\nTimes,Maritime Security in Asia Pacific, Nanyang: World Scientific Publishing,
\n2005
\nJagota, S.P., Maritime Boundary, Leiden: Martinus Nijhoff Publishers, 1985
\nKittichaisaree, Kriangsak, The Law of the Sea and Maritime Boundary Delimitation in
\nSoutheast Asia, New York: Oxford University Press, 1987
\nMcDougal, Myres S. and Burke, William T. The public Order of the Oceans, A
\nContemporary International Law of the Sea, New Haven: New Haven Press,
\n1987
\nMejia Jr., Maximo Q., Law and Ergonomics in Maritime Security, Lund Department of
\nDesign Sciences, Lund University, 2007
\n84
\nMunawar, Mohamed, Ocean States, Archipelagic Regime in the Law of the Sea, AD
\nDordrecht: Martinus Nijhoff Publishers, 1995
\nNandan, Satya N. and Rosenne, Shabtai, United Nations Convention on the Law of the
\nSea 1982, A Commentary, Volume II. AD Dordrecht: Martinus Nijhoff
\nPublishers, 1993
\nNordquist, Myron H., Koh, Tommy T. B. and Moore, John Norton (Editors), Freedom of
\nthe Seas, Passage Rights and the 1982 Law of the Sea Convention, Leiden:
\nMartinus Nihjoff Publishers, 2008
\nOng-Webb, Graham Gerard, Piracy, Maritime Terrorism and Securing the Malacca
\nStraits, Pasir Panjang: ISEAS Publishing, 2006
\nPrescott, Victor and Schofield, Clive, Maritime Political Boundaries of the World.
\nLeiden: Martinus Nijhoff Publishers, 2005
\nSymmons, Clive R., The Maritime Zones of Islands in International Law, Leiden:
\nMartinus Nijhoff Publishers, 1979
\nUN DOALOS, Baselines: An Examination of the Relevant Provisions of the United
\nNation Convention on the Law of the Sea, New York: United Nations
\nPublications, 1989
\nUN DOALOS, Bulletin No.52, New York: United Nations Publication, 2003
\nUN DOALOS, Legislative History of Part IV UNCLOS, New York: United Nations,
\n1990
\nJOURNALS
\nBateman, Sam, The Growing Significance of Coast Guards in the Asia-Pacific: A Quiet
\nDevelopment in Regional Maritime Security, Ocean Yearbook Vol. 20, 2006
\nJohnson, Constance, A Right of Passage: The IMO Consideration of the Indonesian
\nArchipelagic Sea Lanes Submission, The International Journal of Marine and
\nCoastal Law, Vol. 15 No. 3, 2000
\nLarson, David L., Innocent, Transit and Archipelagic Sea Lane Passage, Ocean
\nDevelopment and International Law Vol. 18 No. 4, 1987
\n85
\nPerry, Timothy C., Blurring the Ocean Zones: The Effect of the Proliferation Security
\nInitiative on the Customary International Law of the Sea, Ocean Development &
\nInternational Law Vol. 37 No.1, 2006
\nValencia, Mark J. and Marsh, James Barney, Access to Straits and Sealanes in Southeast
\nAsian Seas: Legal, Economic and Strategic Considerations, Journal of Maritime
\nLaw and Commerce, Vol. 16 No. 4, 1985<\/p>\n
Zemanek, Karl Was Hugo Grotius Really in Favour of the Freedom of the Seas?,
\nJournal of the History of International Law Vol. 1 No.1, 1999.
\nLAW
\nIndonesian Government Regulation No. 37 on the Rights and Obligations of Foreign
\nShips and Aircraft Exercising the Right of Archipelagic Sea Lane Passage
\nthrough Designated Archipelagic Sea Lanes, 28 June 2002
\nREPORT
\nICC IMB Piracy and Armed Robbery Against Ships Report \u2013 Annual Report 2009
\nINTERNET SOURCES
\nBooks
\nBanlaoi, Rommel C. Security Aspect of Philippines-China Relations: Bilateral Issues
\nand Concerns in the Age of Global Terrorism, Manila: Rex Bookstore
\nIncorporated, 2007 http:\/\/books.google.se 01 August 2010
\nElferink, Alex G. and Rothwell, Donald R., Batongbakal, (Editors), Oceans
\nManagement in the 21st Century: Institutional Framework and Response, Leiden,
\nNLD: Brill Academic Publishers, 2004 http:\/\/site.ebrary.com\/lib\/wmulib 10 May
\n2010
\nKwa, Chong Guan and Skogan, John Kristen, (Editors), Maritime Security in Southeast
\nAsia, Abingdon: Routledge Publishing, 2007 at p119, http:\/\/books.google.se 22
\nFebruary 2010
\nVukas, Budislav The Law of the Sea: Selected Writings. Leiden, NLD: Brill Academic
\nPublishers, 2004 http:\/\/site.ebrary.com\/lib\/wmulib 3 August 2010
\n86
\nWang, James C. F. Handbook on Ocean Politics and Law, Westport, CT: Greenwood
\nPress Inc, 1992 http:\/\/books.google.se 10 June 2010
\nIndonesia Diplomatic Handbook, Washington, DC: International Business Publications,
\n2008 http:\/\/books.google.se 30 June 2010
\nJournals
\nBatongbakal, Jay L. Archipelagic Sea Lanes and Transit Passage Through Straits:
\nShared Responsibilities and Essential to Implementation, Papers in Australian
\nMaritime Affairs No. 10, 2002 https:\/\/monkessays.com\/write-my-essay\/navy.gov.au\/publication 24 June 2010
\nCampbell, Penny Indonesian Archipelagic Sea Lanes, Australian Maritime Issues,
\nPapers in Australian Maritime Affairs No.16, 2005
\nhttps:\/\/monkessays.com\/write-my-essay\/navy.gov.au\/publication 25 June 2010
\nCregan, Mark, Australian Maritime Trade: 2000-01 to 2004-05, Working Paper 69,
\n2007, https:\/\/monkessays.com\/write-my-essay\/btre.gov.au 19 July 2010
\nDiaz, Leticia and Dubner, Barry Hart, The Problem of Utilizing Unilateral Action to
\nPrevent Acts of Sea Piracy and Terrorism: A Proactive Approach to the
\nEvolution of International Law, 32 Syracuse Journal of International Law and
\nCommerce Vol.1, 2004 http:\/\/heinonline.org 10 August 2010
\nForward, Chris, Archipelagic Sea Lanes in Indonesia \u2013 Their Legality in International
\nLaw, Maritime Journal, 2009 http:\/\/maritimejournal.murdoch.edu.au 21 June
\n2010
\nKaye, Stuart, Freedom of Navigation in the Indo-Pacific Region, Papers in Australian
\nMaritime Affairs No.22, 2008 https:\/\/monkessays.com\/write-my-essay\/navy.gov.au\/publication 25 July 2010
\nKwiatkowska, Barbara, Archipelagic Regime in the Philippines and Indonesia,
\nInternational Journal of Estuarine and Coastal Law, Vol. 6 No. 1, 1991
\nhttps:\/\/monkessays.com\/write-my-essay\/ingentaconnect.com\/content\/mnp\/ijec\/1991 7 July 2010
\nPalma, Mary Ann, The Philippine as an Archipelagic and Maritime Nation: Interests,
\nChallenges and Perspective, RSIS Working Paper No. 182, 2009
\nhttps:\/\/monkessays.com\/write-my-essay\/rsis.edu.sg\/publication 25 June 2010
\nStorey, Ian, The Triborder Sea Area: Maritime Southeast Asia\u2019s Ungoverned Space,
\nTerrorism Monitor, Vol. V Issue 19, 2007 https:\/\/monkessays.com\/write-my-essay\/jamestown.org 26 July
\n2010
\n87
\nLaws and Circulars
\nResolution MSC.71(69), Adoption of Amendments to the General Provisions on Ships’
\nRouting (RESOLUTION A.572(14), as amended)
\nhttps:\/\/monkessays.com\/write-my-essay\/imo.org\/includes\/blastDataOnly.asp\/data_id%3D8746\/199.PDF 10
\nJune 2010
\nResolution MSC.72(69), Adoption, Designation and Substitution of Archipelagic Sea
\nLanes, www.imo.org\/includes\/blastData.asp\/doc_id=6794\/72(69).pdf 10 June
\n2010
\nThe Philippine Constitution of 1987
\nhttp:\/\/elibrary.judiciary.gov.ph\/index7.php?doctype=Constitutions&docid 10 June
\n2010
\nReports
\nAnnual Report to the President and the Congress 2002 Appendix E Freedom of
\nNavigation Report https:\/\/monkessays.com\/write-my-essay\/dod.mil\/execsec 15 July 2010
\nEdwards, Jonathan P., The Development and Operational Impact of Indonesia\u2019s
\nApproved Partial System of Archipelagic Sea Lane, Naval War College Report
\n1999 at p16 https:\/\/monkessays.com\/write-my-essay\/dtic.mil 10 May 2010
\nGarcia, Michael, Progress in the Implementation of the Philippine National Marine
\nPolicy: Issues and Option 2005 https:\/\/monkessays.com\/write-my-essay\/un.org\/depts\/los\/nippon 14 July
\n2010
\nInternational Crisis Group, Southern Philippines Backgrounder, Asia Report No. 80
\n2004 https:\/\/monkessays.com\/write-my-essay\/crisisgroup.org 12 July 2010
\nMayer, Mark F., Archipelagic Sea Lanes: Designation Factors and Effects on
\nOperational Art, Naval War College Report, 1999 https:\/\/monkessays.com\/write-my-essay\/dtic.mil 10 May
\n2010
\nSpecial Report on Situation Update off the Islands of Anambas, Natuna and Mangkai,
\nISC Special Report 02\/2010. https:\/\/monkessays.com\/write-my-essay\/recaap.org 02 July 2010
\nThe World Bank Group, Coastal and Marine Resource Management, The Philippine
\nEnvironment Monitor 2005 http:\/\/www-wds.worldbank.org 4 August 2010
\n88
\nUS Freedom of Navigation Program FY 2000-2003
\nhttp:\/\/policy.defense.gov\/gsa\/cwmd\/docs 15 July 2010
\nWorld Oil Transit Chokepoints, US Energy Information Administration 2008
\nhttps:\/\/monkessays.com\/write-my-essay\/eia.doe.gov 4 August 2010
\nThesis and Conference Papers
\nAkimoto, Kazumine, The Current State of Maritime Security \u2013 Structural Weaknesses
\nand Threats in the Sea Lanes, \u201cMaritime Security in Southeast Asia and
\nSouthwest Asia Conference paper 2001 https:\/\/monkessays.com\/write-my-essay\/iips.org 24 June 2010
\nBautista, Lowell B., The Legal Status of the Philippine Treaty Limits of Territorial
\nWaters Claim in International Law: National and International Legal
\nPerspective. University of Wollongong Research Online 2010
\nhttp:\/\/ro.uow.edu.au 25 July 2010
\nBlanco-Bazan, Agustin, Freedom of Navigation: An Outdated Concept? Background
\nconcepts to the lecture delivered by Dr. Agust\u00edn Blanco-Baz\u00e1n at the IFLOS
\nSummer Academy on 17 August 2007 https:\/\/monkessays.com\/write-my-essay\/iflos.org 3 August 2010
\nNewspaper Articles
\nRoque Jr, Harry L., Dangerous Seas, ABS CBN News 15 June 2009
\nhttp:\/\/abs-cbnnews.com 28 July 2010
\nScutro, Andrew, Navy was tracking Chinese Sub, Navy Times 22 June 2009
\nhttps:\/\/monkessays.com\/write-my-essay\/navytimes.com\/news\/2009\/06\/navy_mccain_china_061909w\/
\n28 July 2010
\nSiboro, Tiarma, Minister summons US Envoy over Hornet intrusion, The Jakarta Post 11
\nJuly 2003 http:\/\/www,thejakartapost.com\/news\/2003\/07\/11\/minister-summonsus-envoy-over-hornet-intrusion.html
\nStarr, Barbara, Sub collides with sonar array towed by US Naval Ship 12 June 2009
\nhttp:\/\/edition.cnn.com\/2009\/US\/06\/12\/china.submarine\/index.html 28 July 2010
\nUnidjaja, Fabiola Desy, Government to protest U.S. over intrusion,
\nThe Jakarta Post 10 July 2003
\nhttps:\/\/monkessays.com\/write-my-essay\/thejakartapost.com\/news\/2003\/07\/10\/government-protest-us-overintrusion.html 28 July 2010
\n89
\nANNEX 1
\nSource: https:\/\/monkessays.com\/write-my-essay\/imo.org
\n90
\n91
\n92
\n93
\n94
\n95
\n96
\nANNEX 2
\nSource: https:\/\/monkessays.com\/write-my-essay\/imo.org
\n97
\n98
\n99
\n100
\n101
\n102
\n103
\n104
\n105
\n106
\n107
\n108
\nANNEX 3
\nSource: Bulletin No. 52 at p. 20
\n109
\n110
\n111
\n112
\n113
\n114
\n115
\n116
\n117
\n118
\n119
\n120
\n121
\n122
\n123
\n124
\n125
\n126
\n127
\n128
\n129
\nANNEX 4
\nICC-IMB Piracy and Armed Robbery Against Ships Report-First Quarter 2010
\nProne Areas and Warnings
\nSource: IMB ICC IMB Piracy and Armed Robbery Against Ships Report \u2013 First Quarter 2010
\nhttps:\/\/monkessays.com\/write-my-essay\/icc\u2010ccs.org 22 July 2010
\n130
\nANNEX 5
\nICC-IMB Piracy and Armed Robbery Against Ships Report-First Quarter 2010
\nSource: IMB ICC IMB Piracy and Armed Robbery Against Ships Report \u2013 First Quarter 2010
\nhttps:\/\/monkessays.com\/write-my-essay\/icc-ccs.org 22 July 2010
\n131
\nICC-IMB Piracy and Armed Robbery Against Ships Report-First Quarter 2010<\/p>\n","protected":false},"excerpt":{"rendered":"
ARCHIPELAGIC SEA LANES PASSAGE AND MARITIME SECURITY IN ARCHIPELAGIC SOUTHEAST ASIA ABSTRACT Title of Dissertation: Archipelagic Sea Lanes Passage and Maritime Security in Archipelagic Southeast\u2026<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8827,10099,10540,10536,10892,10538,10539,10537,10891],"tags":[10549,10616,10615,7687,10627,8857,10552,10295,10548,10622,8907],"class_list":["post-132527","post","type-post","status-publish","format-standard","hentry","category-australia-essays","category-buy-essay","category-cheap-essay-writers","category-get-assignments-done","category-page-paper","category-phd-essay-writers","category-research-paper-writing-service-for-any-topic","category-study-bay-essay","category-write-my-assignment-ireland","tag-ai-plagiarism-free-essay-writing-tool","tag-australian-best-tutors","tag-best-trans-tutors","tag-buy-essay-uk","tag-cheap-dissertation-writer","tag-help-with-writing-an-essay","tag-help-write-my-paper-ai-free","tag-homework-for-you","tag-online-essay-writers","tag-phd-essays","tag-write-my-essay-for-me"],"_links":{"self":[{"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/posts\/132527","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/comments?post=132527"}],"version-history":[{"count":0,"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/posts\/132527\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/media?parent=132527"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/categories?post=132527"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/tags?post=132527"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}