Towards a declaration on "navigational rights" in the sea-lanes of the Asia-Pacific.
As part of the overall process of implementing confidence-building measures (CBMs) in the Asia-Pacific region much attention has been devoted to maritime security and the need to expand and strengthen inter-state co-operation in that domain. This focus on maritime security recognizes "freedom of navigation" and other "navigational rights" as fundamental principles but has failed to properly define the terms and identify their possible contribution as CBMs in their own right. This article aims to bring these issues to the centre of attention, by investigating the rationale for the formulation of a Declaration on "navigational rights" in the sea-lanes of the Asia-Pacific(1) as a CBM.
The article is divided into three sections. The first section is devoted to examining the relevant navigational regimes according to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and how the provisions of UNCLOS might be interpreted in order to establish a definition of navigational rights which can be applied in practice. In the second section, the degree of international acceptance of navigational rights, as provided for under UNCLOS, is outlined, with a focus on the countries within the Asia-Pacific and the multilateral fora in the region, such as the Council for Security Cooperation in the Asia-Pacific (CSCAP) and the Workshops on Managing Potential Conflicts in the South China Sea. The third section discusses the advantages and problems associated with a possible declaration of "navigational rights" in the region and its contribution as a CBM within the region's overall security processes. Much of the discussion centres on the attitude towards navigational and maritime issues as expressed in declarations by the Association of Southeast Asian Nations (ASEAN), CSCAP and the Workshops on Managing Potential Conflicts in the South China Sea.
Defining "Freedom of Navigation" and "Navigational Rights": Provisions of UNCLOS
As a starting point in the search for a definition of "freedom of navigation" the text of UNCLOS will be used, originating from Article 2 of the 1958 Geneva convention, applying to the high seas. UNCLOS confirms the right of freedom of navigation on the high seas in Part VII, Section 1, Article 87.(2) Freedom of navigation is also referred to in other parts of UNCLOS but is not explicitly defined, although by implication UNCLOS adopts the definition in the 1958 Geneva convention. UNCLOS also contains sections dealing with navigation through different kinds of water areas. It is necessary to examine the three regime types of innocent passage, transit passage and archipelagic sea-lanes passage that may apply to sea-lanes in the Asia-Pacific, and to identify the navigational rights associated with each of these.
Part II, Section 3 of UNCLOS is devoted to "Innocent Passage in the Territorial Sea" and in Article 17 it is stated that "Subject to the Convention, ships of all states ... enjoy the right of innocent passage through the territorial sea".(3) In Article 18, the term "passage" is defined as the means of navigation through the territorial sea for either of two purposes: first, "traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters", and second, "proceeding to or from internal waters or calling at such roadstead or port facility". Furthermore, the passage has to be "continuous" and "expeditious".(4) Article 19 states that to qualify as "innocent", the passage should not be "prejudicial" to the "peace, good order or security of the coastal state": in practice this applies to any activity not having a "direct" bearing on passage, among them military actions, fishing and environmental pollution.(5) Article 21 spells out the right of coastal states to adopt laws and regulations relating to innocent passage through the territorial sea.(6) However, According to Article 24, the coastal state shall not hamper innocent passage through the territorial seas and shall not impose requirements on foreign ships which in practice would deny or impair the right of innocent passage, or discriminate against ships from any particular state.(7) Finally, according to Article 25 a coastal state may prevent non-innocent passage in its territorial sea and can suspend "temporarily in specified areas" of its territorial sea the innocent passage of foreign ships if it is "essential" for protecting its security.(8)
Article 45 states that the regime of innocent passage shall apply in straits used for international navigation and that there should be no suspension of innocent passage through such straits.(9) Article 52 also relates to the right of innocent passage and prescribes that all states enjoy the right of innocent passage through archipelagic waters. However, the archipelagic state may temporarily, in specified areas, suspend the innocent passage of foreign ships if it is essential for the protection of the security of the archipelagic state.(10) Thus, freedom.of navigation is not mentioned in the articles relating to innocent passage, and it is acknowledged by authors that the navigational rights contained in innocent passage are less than those of transit passage and archipelagic sea-lanes passage.(11) Although innocent passage can apply in straits used for international navigation and archipelagic waters, it is surpassed by the regimes of transit passage and archipelagic sea-lanes passage respectively.
Part III of UNCLOS relates to "Straits Used For International Navigation" and in Section 2, relating to "Transit Passage", Article 37 defines the type of straits transit passage applies. It applies to straits used for international navigation between one part of the high seas or an exclusive economic zone (EEZ) and another part.(12) According to Article 38, in such straits all ships enjoy the right of transit passage.(13) Transit passage is defined as exercising "freedom of navigation" solely for the purpose of "continuous and expeditious" transit through the strait from one part of the EEZ and/or the high seas to another part.(14) In Article 39, the duties of the ships exercising the right of transit passage are spelled out, and one of them is that they should proceed without delay through the strait and refrain from the threat or the use of force against states bordering the strait.(15) Any state bordering a strait may adopt laws and regulations relating to transit passage in accordance with the provisions of Article 42. Such laws and regulations shall not discriminate "in form or in fact" among foreign ships, and their application shall not in practice deny, hamper or impair the right of transit passage of foreign ships.(16)
Part IV of UNCLOS, dealing with "Archipelagic States" is also of relevance in the context of this article since both Indonesia and the Philippines are archipelagic states. Article 53 deals with the right of archipelagic sea-lanes passage. Paragraph 1 states that an archipelagic state may designate sea-lanes that are suitable for the "continuous and expeditious" passage of foreign ships through its archipelagic waters and the adjacent territorial sea. These sea-lanes must be submitted to the International Maritime Organization (IMO) for approval. All ships enjoy the right of archipelagic sea-lanes passage in such sea-lanes according to Paragraph 2. In Paragraph 12, it is stated that if an archipelagic state does not designate sea-lanes for the above purpose then the right of archipelagic sea-lanes passage "may be exercised" through routes which are "normally" used for international navigation.(17)
UNCLOS confirms the freedom of navigation on the high seas and contains provisions relating to the movement of ships in territorial seas, in archipelagic waters, in archipelagic sea-lanes and in straits used for international navigation. According to UNCLOS, navigational rights can be summarized as follows:
* Right of innocent passage. This applies to the territorial sea of a coastal state and gives foreign ships the right of innocent passage through that sea. It can also apply to the archipelagic waters of an archipelagic state and to straits used for international navigation. It is not complete freedom of navigation because the coastal or archipelagic state has the right to create laws that affect vessels passing through the territorial sea/archipelagic waters and can temporarily suspend innocent passage in order to protect its security.
* Transit passage. This applies to straits used for international navigation, and freedom of navigation is stated as existing in the text. However, this is not complete freedom of navigation, as states bordering the strait have the right to create laws that affect vessels passing through it, although they cannot suspend transit passage.
* Archipelagic sea-lanes passage. The right of archipelagic sea-lanes passage applies to sea-lanes designated by an archipelagic state and approved by the IMO. In the absence of such designations, it can take place through routes which are "normally" used for international navigation. The right of archipelagic sea-lanes passage cannot be suspended.
In sum, the regimes of transit passage and archipelagic sea-lanes passage provide greater navigational freedom than the regime of innocent passage. The transit passage and archipelagic sea-lanes regimes have, however, been a compromise between the freedom of navigation on the high seas which maritime states desired and the right of innocent passage which the archipelagic states preferred.(18) Therefore, it is unlikely that the coastal/archipelagic states will accept a declaration that refers simply to "freedom of navigation" as such. Nevertheless, it is necessary to propose a definition for navigational freedoms that apply to sea-lanes, one which could arguably be acceptable to most parties. Freedom of navigation on the high seas is universally recognized. The right to navigate through archipelagic sea-lanes cannot be presumed to be the same as freedom of navigation on the high seas because in archipelagic sea-lanes ships might be required to navigate in lanes specified by the archipelagic states and approved by the IMO, and thus they are not free to navigate wherever they wish. The right of transit passage through straits used for international navigation is also not equivalent to freedom of navigation on the high seas since the ships are subject to laws and regulations passed by the states bordering the strait. However, it is likely that all states can agree that the navigational rights of foreign ships in straits and archipelagic sea-lanes can be defined as "the freedom of a ship to pass through straits used for international navigation and archipelagic sea-lanes at all times in pursuit of peaceful objectives". The "freedom" comes from being able to use the straits and sea-lanes at all times; coastal/archipelagic states cannot remove this right, unlike under the regime of innocent passage.
Having established a definition of the navigational rights in straits and in sea-lanes it is necessary to examine whether this freedom applies to all types of vessels or if there are restrictions on certain types of vessels. According to the provisions of UNCLOS, the following regulations can be noted. With regard to innocent passage in territorial seas, all types of vessels have the right to innocent passage but with two restrictions. First, according to Article 20, "submarines and other underwater vehicles shall navigate on the surface and display their flag."(19) Second, according to Article 23 "nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances" are required to carry documents and have to observe "special precautionary measures" as established by international agreement when exercising the right of innocent passage.(20) There are no restrictions on the types of vessels which can exercise transit passage through straits used for international navigation, nor on those which can exercise the right of archipelagic sea-lanes passage.(21)
Acceptance of UNCLOS and Views on Navigational Rights in the Asia-Pacific
One way of measuring the degree of acceptance of UNCLOS as a whole and the provisions relating to navigational rights is to look at the number of countries which have ratified, acceded or succeeded to the 1982 Convention. According to United Nations' statistics, 123 countries had done so as of 23 December 1997.(22) A closer look at the different member-states in the ASEAN Regional Forum (ARF) shows that, of the 21 members, all but one, the United States, had signed the 1982 Convention, and that 15 members had ratified it. The ARF members which have not ratified UNCLOS are, apart from the United States, Cambodia, Canada, the European Union,(23) Laos, and Thailand.(24) Thus, from a legal point of view, a clear majority of the members of the ARF have ratified UNCLOS and all but one had signed the Convention. This indicates a high degree of acceptance of navigational rights and its application to all types of vessels as outlined in the Convention.
The ratification of the Convention by Indonesia and the Philippines - the two archipelagic states in Southeast Asia - implies that they have accepted the right to archipelagic sea-lanes passage and the right to innocent passage through their archipelagic waters. In this context, the role and attitude of Indonesia is of great relevance since two of the most important sea-lanes in the region pass through the Indonesian archipelago: the straits of Lombok and Sunda. Earlier doubts about Indonesia's acceptance of the unimpeded right of archipelagic sea-lanes passage, such as the September 1988 temporary closure of the two straits to traffic,(25) and of the principle that this right applies to all types of vessels, were removed following Indonesian clarification of its position on acceptance of that principle.(26) It is important to note, however, that the Philippines expressed reservations about the legality of archipelagic sea-lanes passage under its Constitution, which according to Article 1 considers all waters bound by the baselines and all waters around, between and connecting the islands of the archipelago, as part of the internal waters of the Philippines.(27) The Philippines therefore considers all of its archipelagic waters as internal. based on this, the Philippines has maintained that it has the right "to enact legislation to protect its sovereignty, independence, and security".(28) Although this cannot be taken into account when interpreting the convention, it is of relevance because it highlights the internal problems that the Philippines might have in accepting the provisions of the convention. Recent scholarly debate within the Philippines has pointed to the advantages and necessity of the Philippines designating archipelagic sea-lanes or to run the risk that foreign ships might freely exercise the right of archipelagic sea-lanes passage through all routes normally used for international navigation. The debate also highlighted the continued contradiction between the Constitution of the Philippines and the designation of archipelagic sea-lanes.(29)
The attitude of the United States is not one of opposing the navigational rights incorporated in UNCLOS. In fact, it is a proponent of freedom of navigation in view of the U.S. Navy's need to be able to navigate between oceans. Therefore, the United States would like to maximize the number of sea-lanes open for transit passage and archipelagic sea-lanes passage.(30)
At a multilateral level, the acceptance of UNCLOS and its provisions was demonstrated at the first meeting of the Technical Working Group (TWG) on Safety and Navigation, Shipping and Communication in the South China Sea held in Jakarta on 3-5 October 1995. The participants at that meeting agreed that UNCLOS provided a "useful framework and basis" for efforts aimed at handling navigational, shipping and communications issues in the South China Sea.(31)
Moreover, within the CSCAP process, the acceptance of UNCLOS is explicit, as seen in the fact that the stated purpose of the guidelines for maritime co-operation - outlined in CSCAP Memorandum No. 4 Guidelines for Regional Marine Cooperation - is that they constitute "a step in the process of building an oceans governance regime based on UNCLOS".(32)
The Case in Favour of a Declaration
The argument in favour of a declaration on navigational rights in the Asia-Pacific will be built on various statements made in regional multilateral fora relating to navigational and maritime issues. As a starting point, it can be noted that in the ASEAN Declaration on the South China Sea in 1992, the member states of ASEAN expressed their "resolve" to "explore" the possibility for co-operation on such matters as safety of maritime navigation and communication in the South China Sea.(33)
In the series of Workshops on Managing Potential Conflicts in the South China Sea, organized by Indonesia since 1990, some interesting views on navigational and maritime issues have been put forward. At the first workshop in January 1990, Jorge Coquia presented a paper on navigation, communication and shipping in the South China Sea.(34) He noted that without determining the ownership of contested islands, the claimant states "can derive the most beneficial uses of the South China Sea by co-operating in navigation, communication and shipping in the area".(35) He also argued that all the ASEAN members could benefit from the development and expansion of maritime trade. In this context, he noted that all the ASEAN states have port facilities. Furthermore, Coquia pointed to the fact that all the ASEAN members had signed or ratified UNCLOS. With regard to problems, he observed that the ASEAN states have similar export products and therefore competition for export markets might prevent co-operation between them. Finally, he identified the need to delimit the maritime boundaries in the Southeast Asian region.(36)
At the second workshop held in July 1991, the session was devoted to "Navigation, Shipping and Communications". During the discussions, one of the points made was that "freedom of navigation principles" in UNCLOS "should" be both recognized and applied to, the region.(37) The participants also reached consensus on some points which they could recommend to their respective governments. Among these points, three are of relevance in this context. The first is that shipping, navigation and communication are areas in which "concrete cooperative steps" can be taken with "relative ease". The second notes that despite the fact that the three areas are "principally matters of national jurisdiction" it is necessary to forge links between the laws and policies of the countries bordering the South China Sea in order to "enhance" regional safety, co-operation and trade. The third point is that co-operation in the three areas does not require territorial and jurisdictional disputes to be resolved beforehand, nor would it "compromise" the claims of different countries in the area.(38)
In the "Statement" made in connection with the fourth workshop in 1993, it was noted that the workshop had considered the possibility of holding a meeting of the TWG on the Safety of Navigation, Shipping and Communications, to be hosted by Brunei. The TWG would "further study" the following issues: education of mariners, improvement of radio "beacon systems", development of contingency plans, and dissemination of weather information.(39) In the "Workshop Statement" from the fifth workshop held in 1994, it was noted that when the TWG meeting on Shipping, Navigation and Communications is convened, the issues of "rescue, piracy, and illicit drug trafficking" and possibly the refugee problem would also be considered.(40) The TWG meeting on the Safety of Navigation, Shipping and Communications held its first meeting in Jakarta in early October 1995, and the participants agreed, among other things, on the following three points: first, that co-operation on the safety of navigation, shipping and communications is both desirable and feasible despite the unresolved territorial disputes in the South China Sea; secondly, that UNCLOS provided a "useful framework and basis" for efforts to deal with issues relating to the three areas in the South China Sea; thirdly, that recommendations be made to the governments of the countries in the South China Sea region that they ought to accede to the agreements and conventions of the IMO relating to marine pollution prevention, safety of navigation, shipping and communications.(41) During the sixth workshop on the South China Sea, held later in October 1995, the participants agreed to concur with the foregoing points relating to navigation, shipping and communications.(42)
In CSCAP Memorandum No. 4. Guidelines for Regional Maritime Cooperation, one of the purposes of the stated guidelines was that they "should promote a stable maritime regime in the region with the free and uninterrupted flow of seaborne trade".(43) Furthermore, in the section on "Sea Lines of Communication", it was stated that the parties "recognise the importance of the freedom of navigation to the maintenance of seaborne trade in the Asia-Pacific region".(44)
To summarize the above statements, there seemed be a regional consensus that facilitating trade and economic interaction is important for the countries within the Asia-Pacific as well as for other countries trading with the region. Trade between the countries in the region and those outside is, to a large extent, done through shipping, and thus it is important to regulate and to protect shipping.(45) These are issues on which all countries in the Asia-Pacific, as well as the major maritime powers, can agree upon without prejudicing national security interests and/or territorial claims in disputed maritime areas such as in the South China Sea. It can be noted that more attention has been devoted to safety of navigation and shipping rather than navigational rights as such.
It would arguably be better to establish what precisely are the navigational rights in the sea-lanes of the Asia-Pacific before issues such as the protection of shipping and trade are considered and addressed. A declaration on navigational rights could serve as a CBM by establishing the navigational rights in the sea-lanes, by promoting economic interaction, and by encouraging states to co-operate in terms of maritime security and in combatting piracy.
What are the Problems?
The general problem that exists in relation to the provisions of UNCLOS' navigational rights is that they are the outcome of compromises between the maritime powers in pushing for greater freedom of navigation, not only on the high seas but also in the sea-lanes (be they straits used for international navigation or archipelagic sea-lanes) and the interests and concerns of the states bordering straits, which may be used for international navigation, and archipelagic states. As a result, the wording of the provisions has been described as partly ambiguous and left open to different interpretations, depending on the interests of different states.
The first problem to deal with is that of classifying the straits, sea-lanes and shipping routes. Different navigational rights apply depending on the classification - that is, straits, archipelagic sea-lanes, territorial seas, and high seas. One important step has been taken by Indonesia in proposing three archipelagic sea-lanes to the IMO for adoption.(46) This shows a willingness to clarify the definition of the sea-lanes, and hence also the regime which applies to them. The Philippines has yet to submit a proposal for archipelagic sea-lanes to the IMO.(47)
The issue of warships and submarines remains sensitive since states bordering straits used for international navigation and archipelagic states may have security as well as environmental concerns, given that warships and submarines belonging to the nuclear powers can be either nuclear-powered and/or carry nuclear weapons.
The issue of nuclear weapons has the potential to be an obstacle to an agreement on a declaration on navigational rights in the Asia-Pacific. The controversy has increased rather then decreased because of the decision taken by the ASEAN states to establish a nuclear weapons-free zone through the treaty on the Southeast Asian Nuclear Weapons-Free Zone (SEANWFZ) signed in Bangkok in December 1995.(48) The main problem lies with the ambiguity of the text. It is stated under Article 3, "Basic Undertakings", that:
1. Each State Party undertakes not to, anywhere inside or outside the Zone:
(a) develop, manufacture or otherwise acquire, possess or have control over nuclear weapons;
(b) station or transport nuclear weapons by any means; or
(c) test or use nuclear weapons.(49)
2. Furthermore, each State Party also undertakes not to allow, in its territory, any other State to:
(a) develop, manufacture or otherwise acquire, possess or have control over nuclear weapons;
(b) station nuclear weapons; or
(c) test or use nuclear weapons.(50)
Based on this text, it appears that other states may transport nuclear weapons, but that they may not "have control" over them. The word "control" is not defined in Article 1 ("Use of terms") and therefore it is not clear what is allowed under the basic undertakings. Is it possible for a state to transport nuclear weapons over which they have no control?(51)
The United States objects to the SEANWFZ treaty on the basis of UNCLOS, which states that nuclear-powered ships can enjoy the same navigational rights as other ships. Nuclear weapons as such are not explicitly mentioned in the provisions of UNCLOS - unless they are viewed as "nuclear substances" - so there is no ban on transporting such weapons under the regime of innocent passage and there is no restriction under the regimes of transit passage and archipelagic sea-lanes passage. The major problem lies in the consistent U.S. policy of refusing to disclose whether or not its ships carry nuclear weapons when they navigate and call at ports in other countries. It does seem, however, that the SEANWFZ treaty has taken into account the concerns of maritime states by apparently allowing the transport of nuclear weapons, and also by stating in Article 7 ("Foreign Ships and Aircraft") that states which are parties to the treaty may only decide whether or not to allow foreign ships to navigate in their territorial waters and archipelagic waters, in a manner not governed by the rights of innocent passage, archipelagic sea-lanes passage, or transit passage. This is further evidence of acceptance by the archipelagic states of the navigational rights contained in UNCLOS.(52)
A Declaration on Navigational Rights as a CBM?
It seems that a declaration on navigational rights for peaceful purposes in the sea-lanes of the Asia-Pacific would serve as a confidence-building measure for the following reasons:
1. It is something that can be declared without prejudicing territorial claims.
2. All the states involved can agree upon it.
3. It would help increase economic interaction between the countries in the Asia-Pacific and countries outside the region through trade, increased trade being something that all countries desire.
4. It will naturally lead to increased co-operation in the fields of safety of navigation, the fight against piracy, and environmental protection.
Countries can agree upon navigational rights without prejudicing their territorial claims. Navigational rights will not have any bearing on the exploration of natural resources in undisputed EEZ areas, or disputed ones, because regardless of whose territory it is, navigational rights will apply and cannot be suspended by the coastal state.
What are the prospects for a declaration? The prospects seem very good. Much attention has been placed upon issues of safety and security in the region, but navigational rights have largely been overlooked. Having said this, it seems implicit that all the states concerned have accepted navigational rights in principle, as is illustrated by their actions in expressing support for co-operation based on UNCLOS. "Freedom of navigation" has even explicitly been recognized as a positive feature in Article 7 of CSCAP Memorandum No. 4 Guidelines for Regional Marine Cooperation.(53)
* The author wishes to thank Professor Tommy B. Koh for his comments on an earlier version of this study. He also offers special thanks to David Hughes, both for his data collection and for his valued comments and suggestions. The author wishes to acknowledge the support from the Sasakawa Young Leaders' Fellowship Fund while researching and writing this study.
1. In the context of this study, the Asia-Pacific is used as a term encompassing the regions of East Asia and Southeast Asia, that is, in East Asia: China, Japan, North and South Korea, and Taiwan; and in Southeast Asia: Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam.
2. Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index. Final Act of the Third United Nations Conference on the Law of the Sea. Introductory Material on the Convention and the Conference, United Nations Publication, Sales No. E.83.V.5 (New York: United Nations, 1983), pp. 30-31 (hereafter cited as The Law of the Sea).
3. Ibid. p. 6.
4. Ibid., p. 6.
5. Ibid., pp. 6-7.
6. Ibid., pp. 7-8.
7. Ibid., p. 8.
8. Ibid., pp. 8-9.
9. Ibid., p. 14.
10. Ibid., pp. 16-17.
11. See, for example, William L. Schachte Jr. and J. Peter A. Bernhardt, "International Straits and Navigational Freedoms", Virginia Journal of International Law 33, no. 3 (1993): 527-36.
12. The Law of the Sea, p. 12.
13. The right of transit passage shall not be impeded but for one exception and that is, if the strait is formed by an island belonging to a state bordering the strait and its mainland, then transit passage shall not apply if there is, seaward of the island, a route through the EEZ or the high seas of "similar convenience" in regard to navigational and "hydrographical" characteristics (ibid., p. 12).
14. Ibid., p. 12.
15. Ibid., pp. 12-13.
16. Ibid., pp. 13-14.
17. Ibid., p. 17.
18. See J. Peter A. Bernhardt, "The right of archipelagic sea-lanes passage", Virginia Journal of International Law 35, no. 4 (1995): 727. In relation to "transit passage", Robert Smith and Ashley Roach explain that it was a compromise between the position of the naval powers and maritime states, who wanted the application of the "high seas freedoms" in straits used for international navigation, and the coastal states, who favoured the application of the regime of innocent passage to such straits (Robert W. Smith and J. Ashley Roach, "Navigation Rights and Responsibilities in International Straits", in The Straits of Malacca. International Co-Operation in Trade, Funding and Navigational Safety, edited by Hamzah Ahmad [Petaling Jaya: Pelanduk Publications in association with the Maritime Institute of Malaysia, 1997], p. 288).
19. The Law of the Sea, p. 7.
20. Ibid., p. 8.
21. Ibid., pp. 11-18.
22. Information issued by the Division for Ocean Affairs and the Law of the Sea (DOALOS), Office of Legal Affairs (OLA), United Nations, New York (as of 23 December 1997), from the U.N. Homepage (http://www.un.org/).
23. The "European Community" is listed as a signatory by DOALOS/OLA, but it has not ratified the Convention.
24. See note 22.
25. For a discussion relating to the legal implications of the 1988 closure of the Sunda and Lombok straits, see Donald R. Rothwell, "The Indonesian Straits incident: Transit or archipelagic sea-lanes passage?", Marine Policy 14, no. 6 (November 1990): 491-506.
26. For details pertaining to the Indonesian acceptance, see "Paragraph 130" in Law of the Sea. Report of the Secretary General, United Nations Document A/51/645 (1 November 1996), p. 36 (hereafter cited as Report of the Secretary General).
27. Jorge R. Coquia, "Some Legal Aspects and Constitutional Issues on Archipelagic Sea Lanes", Issue focus: "Designation of Sea-lanes in the Philippines", edited by Maribel B. Aguilos, Ocean Law and Policy Series 1, no. 1 (January-June 1997): 54; and Stella Regina Bernard, "Legal Dimensions of Designating Sea-lanes, in ibid., p. 60.
28. Charlotte Ku, "The Archipelagic States Concept and Regional Stability in Southeast Asia", Case Western Reserve Journal of International Law 23, no. 3 (Summer 1991): 475-76.
29. For different views presented in the debate, see Maribel B. Aguilos, ed., on the "Designation of the Sea-Lanes in the Philippines", Ocean Law and Policy Series 1, no. 1 (January-June 1997).
30. For an analysis of the U.S. position on straits, see William L. Schachte, Jr., "International Straits and Navigational Freedoms", Ocean Development and International Law 24, no. 1 (1993): 179-95. For a discussion of the U.S. position on problems relating to archipelagic sea-lanes passage, see Bernhardt, op. cit., pp. 756-70. For a study outlining not only the favourable U.S. attitude towards freedom of navigation but also how important freedom of navigation is in U.S. maritime policy, see William J. Aceves, "The Freedom of Navigation Program: A Study of the Relationship Between Law and Politics", Hastings International Law Review 19, no. 2 (Winter 1996): 259-326.
31. "Statement of the First Meeting of the Technical Working Group on Safety and Navigation, Shipping and Communication in the South China Sea, October 3rd-6th, 1995", reproduced as "Annex I" in The Sixth Workshop on Managing Potential Conflicts in the South China Sea, Balikpapan, Indonesia, 9-13 October 1995 (Organised by Research and Development Agency, Department of Foreign Affairs, Republic of Indonesia, with the South China Sea Informal Working Group, University of British Columbia), pp. 79-80 (hereafter cited as "Statement of First Meeting of TWG").
32. From section on "Purpose of Guidelines" in CSCAP Memorandum No. 4 Guidelines for Regional Marine Cooperation (derived from the version published in the MIMA Bulletin 4, No. 1/97, pp. 36-39, hereafter cited as CSCAP Memorandum No. 4).
33. "ASEAN Declaration on the South China Sea, Manila, 2 July 1992", reproduced in ASEAN-UN Cooperation in Preventive Diplomacy, edited by Sarasin Viraphol and Werner Pfenning (Bangkok: Ministry of Foreign Affairs, 1995), p. 281.
34. Coquia's paper has been published in two periodicals, and the one used in this context is Jorge R. Coquia, "Navigation, Communication and Shipping in the South China Sea", Foreign Relations Journal 5 no. 1 (March 1990): 55-64.
35. Ibid., p. 58.
36. Ibid., pp. 62-63.
37. "III. Second Session: Navigation, Shipping and Communications", reproduced in Report of the Second Workshop on Managing Potential Conflicts in the South China Sea, Bandung, 15-18 July 1991 (Organized by the Research and Development Agency, Ministry of Foreign Affairs, Republic of Indonesia, and the Institute for Southeast Asian Studies, Jakarta, with the assistance of the Oceans Institute of Canada), p. 10.
38. Ibid., p. 11.
39. "Workshop Statement" reproduced in The Fourth Workshop on Managing Potential Conflicts in the South China Sea, Surabaya, Indonesia, 23-25 August 1993 (Organized by the Research and Development Agency, Department of Foreign Affairs, Republic of Indonesia, with the South China Sea Informal Working Group, University of British Columbia), pp. 76-77.
40. "Statement of the Fifth Workshop on Managing Potential Conflicts in the South China Sea" reproduced in The Fifth Workshop on Managing Potential Conflicts in the South China Sea, Bukittinggi, Indonesia, 26-28 October 1994 (Organized by the Research and Development Agency, Department of Foreign Affairs, Republic of Indonesia, with the South China Sea Informal Working Group, University of British Columbia), p. 54.
41. "Statement of First Meeting of TWG", p. 80.
42. "3. Session II: Report of the Technical Working Groups", reproduced in The Sixth Workshop on Managing Potential Conflicts in the South China Sea. Balikpapan, Indonesia, 9-13, October 1995 (Organized by the Research and Development Agency, Department of Foreign Affairs, Republic of Indonesia, with the South China Sea Informal Working Group, University of British Columbia), pp. 13-14.
43. From section on "Purpose of Guidelines", CSCAP Memorandum No. 4, p. 36.
44. Ibid., p. 36.
45. See Edgar Gold, "International Shipping and the New Law of the Sea: New Directions for a Traditional Use", Ocean Development and International Law 20, no. 5 (1989): 433-44. For an overview on shipping and international trade in Pacific Asia, see Ross Robinson, "Shipping and International Trade in the Asian Region: An International View", in The Straits of Malacca. International Co-operation in Trade, Funding & Navigational Safety, edited by Hamzah Ahmad (Petaling Jaya: Pelanduk Publications in association with the Maritime Institute of Malaysia, 1997), pp. 263-81.
46. For details, see Paragraphs 129-133, in Report of the Secretary General, pp. 36-37; and, "Designation of Certain Sea Lanes and Air Routes Thereabove through Indonesian Archipelagic Waters. Note by Indonesia", Ocean Law and Policy Series 1, no. 1 (January-June 1997): 125-41. The latter is a reproduction of the official Indonesian note to the IMO. The official document is referred to as: "International Maritime Organization, Maritime Safety Committee, Safety of Navigation, 67th Session, Agenda 7, MCS 76/7/2, 30 August 1996". In the Indonesian note, the sea-lanes are defined as: "Sea Lane I" following the route: South China Sea, Natuan Sea, Karimata Strait, Java Sea, Sunda Strait; "Sea Lane II" following the route: Sulawesi Sea, Makasar Strait, Lombok Strait; and, "Sea Lane IIIA", "Sea Lane IIIB", and "Sea Lane IIIC" all of which share the following route: Pacific Ocean, Maluku Sea, Seram Sea, Banda Sea, but then take different directions. Sea Lane IIIB continues to the Lei Strait and then to the Timor Sea, whereas Sea Lane IIIC continues from the Banda Sea to the Arafuru Sea. For Sea Lane IIIA, the overall routing is not specified as, in relation to the other sea-lanes only the specific coordinates are given (for details, see ibid., pp. 128-31 and Map 1). Thus, in practice, Indonesia has designated not three but six archipelagic sea-lanes.
47. In recent research, it has been suggested that if the Philippines decides to designate archipelagic sea-lanes, the following two are recommended: An "East West Sea Lane" following the route from Balabac Strait to the Sulu Sea junction, then to Bohol Sea, onwards between Northern Mindanao and Southern Negros Island and Bohol Island, and then through Surigao Strait into the Pacific Ocean; and a "North South Sea Lane" following the route from the Celebes Sea, passing through Sibutu Passage between Sibutu Island and Simunul Island, Bongao into the Sulu Sea, and then through Mindoro Strait to the South China Sea (Mario C. Manansala, "Philippine Archipelagic Sea-lane", World Bulletin, focus issue on "Law of the Sea", edited by Rolando De La Cruz, Vol. 12, nos. 5-6 (September-December 1996): 11314; and Mario. C. Manansala, "Designation of Archipelagic Sea-lanes in the Philippines", Ocean Law and Policy Series 1, no. 1 (January-June 1997): pp. 8-9.)
48. The text of the Treaty on the Southeast Asia Nuclear Weapons-Free Zone has been taken from the ASEANWEB (http://www.asean.or.id/).
49. "Article 3, Basic Undertakings", in ibid.
50. "Article 3, Basic Undertakings", in ibid.
51. "Article 1, Use of terms", in ibid.
52. "Article 7, Foreign Ships and Aircraft", in ibid.
53. CSCAP Memorandum No. 4, p. 38.
Ramses Amer is Co-ordinator, Southeast Asia Programme, Department of Peace and Conflict Research, Uppsala University, Sweden.
|Printer friendly Cite/link Email Feedback|
|Publication:||Contemporary Southeast Asia|
|Date:||Apr 1, 1998|
|Previous Article:||Political parties, elite-mass gap and political instability in Hong Kong.|
|Next Article:||Indonesia and the "Third Wave of Democratization": The Indonesian Pro-Democracy Movement in a Changing World.|