Archipelagic waters are the waters
inside and around an archipelago. Article 46 of The United Nations Convention
on the Law of the Sea of 1982 (UNCLOS 1982) treats “archipelago” as a
group of islands, including parts of islands, interconnecting waters and other
natural features which are so closely interrelated that such islands, waters
and other natural features form an intrinsic geographical, economic and
political entity, or which historically have been regarded as such. It has to
be noted here that archipelagic waters which are waters within the archipelagic
baselines are not internal waters. The legal concept of archipelagic waters is
without prejudice for the right of the state to draw lines for the delimitation
of internal waters in accordance with Articles 9, 10, and 11[1] for the
mouths of rivers, bays, and ports. Such lines of delimitation are known as
closing lines rather than baselines as in the territorial sea concept,[2] as they
serve only as the boundary for waters completely outside the jurisdiction of the Convention (internal waters) and do
not act as the starting point for establishing zones. There is no right of
innocent passage in internal waters enclosed by closing lines, even if they
were not considered internal waters previously, a further contrast to the
territorial sea concept.[3] If we
refer to those articles, we can see that there are two kinds of baselines
within the Archipelagic State. The first one is the baseline which is usually
used in bays, mouths of rivers, and ports, that makes the waters inside that
baseline recognized as internal waters where no rights of innocent passage
allowed. The second one is the Archipelagic Baseline, which has been described
in the previous section. The waters inside this baseline are recognized as
Archipelagic Waters where there are some rights given to international
community.
The sovereignty of an archipelagic
State extends to the waters enclosed by the archipelagic baselines drawn in
accordance with article 47, described as archipelagic waters, regardless of
their depth or distance from the coast.[4] And this
sovereignty extends to the air space over the archipelagic waters, as well as
to their bed and subsoil, and the resources contained therein.[5] From
these two paragraphs above, we can see that an archipelagic State has sovereignty over its
archipelagic waters, moreover it also extends
to the air space over the archipelagic waters, as well as to their bed and
subsoil, and the resources contained therein. However, this sovereignty
is subject a number of rights enjoyed by third states.
Those rights are specifically explained on the UNCLOS
1982 in Article 51, Article 52, and Article 53. Paragraph 1 Article 51
indicated that an archipelagic State shall respect existing agreements with
other States. This provision was presumably inserted to avoid any possible
conflict between an archipelagic State’s rights under UNCLOS 1982 and its
obligations under prior agreements, and is an exception to the general
provision under article 311 dealing with the relationship of the Convention and
prior treaties.[6]
Moreover, this paragraph also stated that archipelagic state shall recognize
traditional fishing rights and other legitimate activities of the immediately
adjacent neighboring States in certain areas falling within archipelagic
waters. In paragraph 2, Article 51 then gives
explanations about existing submarine cable. If we read that article, we can
see that Archipelagic States are to respect existing submarine cables laid by
other States and passing through their waters without making a landfall. And
the archipelagic stare are to permit the maintenance and replacement of such
cables upon receiving due notice of their location and the intention to repair
or replace them. Then, an archipelagic state may not forcibly revoked foreign
country’s submarine cables if there is no agreement from that country who laid
the cables. The foreign states do not have any rights to plant any new
submarine cables after a country has declared itself to be an archipelagic
state. Foreign states have rights only with regard to existing cables. In part
IV of UNCLOS 1982, we can only see the regulations about the submarine cable.
There are no provisions that regulate pipelines along the archipelagic waters. Because
of that, there is a possibility that an archipelagic state can require
pipelines removal to a state that is also a party to UNCLOS 1982. However, if
the State owning the pipelines is a non UNCLOS 1982 party, the relationship
between the archipelagic state and the State owning the pipelines will be
governed by the customary international law or by agreements that concluded
between countries. For example, Indonesia and Malaysia signed an agreement in
1982. This agreement has provisions guaranteeing navigation and over flight
between East and West Malaysia, deals with cables linking East and West
Malaysia and passing through Indonesian waters, and permits Malaysian fisherman
to fish by traditional methods in part of Indonesia’s archipelagic waters east
of the Anambas Islands, an area where Malaysian fishermen have fished for
decades. After that, this agreement also permits Malaysia to lay new cables and
pipelines through Indonesian waters provided that this does not interfere with
the exploitation of sea-bed mineral resources by Indonesia within its
territorial sea and archipelagic waters, and requires Indonesia to protect
existing cables and pipelines.[7]
Article 52 and 53 of UNCLOS 1982
then regulating matters concerning navigational rights that given to foreign
countries by the archipelagic states. These navigational regimes were a debate
issue in the production of the Law of the Sea Convention. The debate was
specifically discuss about the will of archipelagic states that wanted to be recognized
as complete and encompassing nations, coastal states that wanted to increase
the limit of their territorial seas, and maritime countries were determined to
retain their vital commercial and strategic access to sea lanes through these
coastal states. But finally, the debate resulted in provisions about right of
innocent passage and archipelagic sea lanes passage that stated in Article 52
and 53 UNCLOS.
Article 19 paragraph 1 of UNCLOS
1982 decribed that passage is innocent so long as it is not prejudicial to the
peace, good order or security of the coastal State.[8]
This innocent passage according to UNCLOS 1982 applies only to the territorial
seas of the state. According to article 52 paragraph 1 UNCLOS 1982, the ships
of all States enjoy in archipelagic waters the same right of innocent passage
as they enjoy in the territorial sea. And in addition, in article 52 paragraph
2 it is stated that this right may only be suspended temporarily and in specified
areas, for security reasons, after due notice has been given. Based on Article
53 of UNCLOS, archipelagic sea lane passage means the exercise of the rights of
navigation and over flight in normal mode solely for the purpose of continuous,
expeditious and unobstructed transit between one part of the high seas or an
exclusive economic zone and another part of the high seas or an exclusive
economic zone.[9]
This right could be exercised in two instances, first, in all normal passage
routes used for international navigation or over flight through or over
archipelagic waters and its adjacent territorial sea; second, in sea lanes or
air routes which the concerned archipelagic state has specifically designated.[10]
This particular regime of
archipelagic sea lanes passage guarantees that ships and aircrafts of other
States have the right to pass through and over archipelagic waters on
designated sea lanes and air routes.[11]
It is very different with what we understand about the right of innocent
passage. The following instances constitute distinctions between two principles
of innocent passage and archipelagic sea lane passage with regard to passage
through archipelagic waters:[12]
1.
The
right of innocent passage requires that submarines and other under water
vehicles should navigate on the surface, showing their flags; whereas in
archipelagic sea lane passage, underwater vehicle is allowed to navigate under
normal mode which is possible that it pass underwater;
2.
There
is no right of over flight in areas where innocent passage is allowed while
in archipelagic sea lane, over flight
is permitted;
3.
The
right of innocent passage could be
suspended in certain cases like when there is military exercise or the State
has to deal with local crises but archipelagic sea lane passage cannot be
suspended, it may only be substituted;
4.
With
regard to warships, there are no precise rules under international law that
would require countries to give prior notice on innocent passage of warships;
other countries necessitate prior notice while some do not require but in
archipelagic sea lane passage, prior notification on the passage of warship
through it is explicitly not required;
5.
The
provisions on archipelagic sea lane do not include the possibility of
cooperation between the archipelagic State and user States in terms of establishment
of safety rules on navigation and the prevention and control of pollution from
ship through archipelagic sea lane are not covered by this concept.
We can see from what has been mentioned
above, that regulations about archipelagic sea lanes passage is not as strict
as the regulations about the right of innocent passage. Beside the differences
between the archipelagic sea lanes passage and innocent passage, there are
similar characteristics between archipelagic sea lanes passage and transit
passage through and over straits used for international navigation. Article 54
of UNCLOS specifically states that provisions on transit passage in article 39,
40, 42, and 44, shall be applied mutatis
mutandis to the regime of archipelagic
sea lane passage. Emphasis should be
made on the following similarities:[13]
1.
The rights of transit passage and
archipelagic sea lane passage include overflight for aircraft as well as
navigation for ships;
2.
Ships exercising right of transit or archipelagic
sea lane passage may use their normal mode of transit, hence, surface warship
may pass through sea lane in a manner necessary for their security to include
formation steaming and recovery of aircraft;
3.
Both rights may never be suspended for
reason of national security, even temporarily.
The foregoing circumstances do not apply to right of innocent passage.
On the other hand, these rights differ from one another under the following
aspects:[14]
1.
Transit passage signifies exercise of freedom, while archipelagic sea lanes
passage is the exercise of the rights of navigation or overflight;
2.
As a matter of general right, ships and
aircrafts enjoy right of transit passage through straits. On the other hand,
they enjoy a general right of sea lanes
passage if the archipelagic state designates; otherwise this right “may” be
exercised through the routes used for international navigation;
3.
Unlike in the case of transit passage,
both sea lanes and air routes must be established on axis lines within
archipelagic waters
4.
All normal passage routes used for international navigation should be included
in designating archipelagic sea lanes and air routes, whereas; it is not a
requirement in transit passage;
5. The
right of overflight under archipelagic sea lanes passage is restricted to air
routes above sea lanes, unlike in the freedom of overflight within transit
passage regime. This means that overflight should be made strictly above the
designated sea lanes or routes normally used for international navigation, in
the absence of designated sea lanes.
Basically, archipelagic sea
lanes cater to the needs of user states so they could have uninterrupted
navigation through archipelagic waters. They facilitate the unobstructed
passage of military vessels and aircrafts over the waters of the archipelagic
state. [15]In
order to protect its maritime security in relation to the establishment of
archipelagic sea lane passage, the archipelagic state may, under Article 42
UNCLOS, adopt laws and regulations
relating to sea lane passage in respect of safety of navigation, prevention and
control of pollution, prevention of fishing and the loading and unloading of
any commodity, currency or person or sanitary laws or regulation.[16]While
it is true that designating archipelagic sea lane passage is the ultimate
responsibility of archipelagic States to the international community, it shall
also be considered that maintaining territorial integrity is paramount to other
obligations. There are certain important interests which the archipelagic state
cannot give up, for instance its maritime security, to satisfy concerns of the user states. Hence, designation of
archipelagic sea lanes shall be viewed as the greatest contribution of
archipelagic states to the international community, particularly to major
maritime powers because their right to navigation through archipelagic waters
is being upheld and guaranteed.[17]
Indonesia, as one of the
biggest archipelagic States that exist in this world, without any doubt already
has the archipelagic sea lanes passage that has been published by the IMO. This
archipelagic sea lanes passage was accepted by the IMO in the 1998. The
accepted proposal of Indonesia consists of the following three north-south routes
of archipelagic sea lanes passage:[18]
·
ASL
I: Sunda Strait – Karimata Strait –
Natura Sea – South China Sea
·
ASL
II: Lombok Strait – Makasar Strait – Sulawesi Sea
·
ASL
III A: Sawu Sea – Ombai Strait – Banda Sea (West part of Burn Islands) – Seram
Sea (Eastern part of Mongole Island) – Maluku Sea - Pacific Ocean
·
ASL
III B: Timor Sea – Leti Strait – Banda Sea (West part of Burn Islands) – Seram
Sea (Eastern part of Mongole Island) – Maluku Sea - Pacific Ocean
·
ASLIII
C: Arafura Sea – Banda Sea (West part of Burn Islands) – Seram Sea (Eastern
part of Mongole Island) – Maluku Sea - Pacific Ocean
ASL I facilitates navigation from the Indian Ocean,
through Sunda Strait while ASL II, the central route, facilitates navigation
from Indian Ocean through Lombok Strait and Makassar Strait and to Sulawesi Sea
and Pacific Ocean and Philippine waters and lastly ASL III, which is in the
southern part with three branches, facilitates the navigation from Timor Sea
and Arafura Sea to the Pacific Ocean through Sawu Sea, Banda Sea, Seram Sea and
Molucca Sea. [19]All
these routes were indicated in the map submitted to the IMO. It may be noted
that the designation did not include east-west route although the user states
insist on this issue.
This IMO resolution was implemented by Indonesia
through Indonesian Government Decree No. 37/2002 dated 28 June 2002 and
referred to as Alur Laut Kepulauan Indonesia (ALKI). With this sea lanes
passage, Indonesia hold the title to be the very first archipelagic State to
designate archipelagic sea lanes passage.
[1]
Art 50
[2]
Art 5
[3]
Art 8 para 2
[4]
Art 49 para 1
[5]
Art 49 para 2
[6]
R.R. Churchill and A. V. Lowe, The Law of
The Sea, 3rd edn (Manchester: Manchester University Press, 1999), p. 125.
[7]
Ibid, p. 27.
[8]
Art 19
[9] Mark J. Valencia and James Barney Marsh, ‘Access
to Straits and Sea lanes in Southeast Asian Seas:
Legal, Economic and Strategic Considerations’, Journal of Maritime Law and Commerce, 16
(1985) p.522
[10]
Constance Johnson, ‘A Right of Passage: the IMO Consideration of the Indonesian
Archipelagic Sea
Lanes Submission’, The
International Journal Of Marine and Coastal Law, 15 (2000) p.318
[11]
Vivien Jane Evangelio Cay, ‘Archipelagic Sea Lanes Passage and Maritime
Security in Archipelagic Southeast Asia’ (M.Sc. thesis, World Maritime
University, 2010), p. 34
[12]
Ibid, p. 35
[13]
Ibid, p. 36
[14]Ibid, p. 37
[15]
Ibid
[16]
Ibid
[17]
Ibid, p. 38
[18]
Ibid, p. 44
[19]
Ibid, p. 45
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