By Noel Boston<\/p>\n
UN sea law has strong implications for RI<\/p>\n
The UN Convention on the Law of the Sea (UNCLOS'82) comes into
\neffect today (Nov. 21, 1994). As a signatory to UNCLOS'82,
\nIndonesia inherits international responsibilities. Properly
\naddressed, these can be used to improve navigational safety and
\npreserve the integrity of the marine environment.<\/p>\n
JAKARTA (JP): Historically, the world oceans have been, to a
\nlarge extent, lawless. Unwritten codes had general acceptance of
\nthe great seafaring nations of Europe but were not subscribed to
\nby the seafarers of the Middle East.<\/p>\n
The principal concept was freedom of the seas, postulated by
\nHugo de Groot in 1644 as Mare Liberum. This laissez-faire
\napproach allowed the seafaring nations to travel where they
\nchose, unimpeded.<\/p>\n
This was in conflict with coastal states as it opened their
\nseaways and perceived territorial waters not only to traders but
\nalso to foreign fishermen.<\/p>\n
The generally accepted solution of the major seafaring nations
\nwas to allow a three-mile jurisdictional zone for the coastal
\nstate. This can be considered as the forerunner of coastal state
\nresource control.<\/p>\n
Unfortunately, this solution was not consistent with concepts
\nor methods in other parts of the world. The result was that as
\ntechnology and awareness developed, the acceptance of the three-
\nmile zone decreased to the point that by the 20th century it was
\nobsolete.<\/p>\n
The major breaks in traditional thinking were marked by the
\nUnited States claim in 1945 of the continental shelf seabed
\nresources, and in 1948 when Chile, Peru and Ecuador claimed a
\n200-mile maritime zone.<\/p>\n
The need for uniformity had been recognized earlier. An
\nattempt was made in 1930, when a Law of the Sea Conference was
\nheld under the auspices of the League of Nations. However, due to
\nthe intervening World War II, the issue was not universally
\npursued until the prompting of the above two claims.<\/p>\n
A new era in the Law of the Sea began in 1958 when the United
\nNations, after careful preparation by the International Law
\nCommission, convened the first UN Law of the Sea Conference to
\nfix the agreed limit of the territorial seas as well as to
\nformulate rules on the conservation and management of marine
\nresources.<\/p>\n
The first two UN conferences on the Law of the Sea held in
\n1958 and 1960 argued over the management of fisheries and the
\nextension of territorial seas. Whereas there was some progress in
\nthe former, there was a general lack of consensus in the latter.<\/p>\n
The territorial conflict remained throughout the decade of the
\nsixties and in fact was aggravated by advances in technology
\nwhich made the exploitation of marine and seabed resources more
\nfeasible.<\/p>\n
In response to concern brought up by UN member nations,
\npreparation for a third Law of the Sea began in the late 1960s.
\nIn a remarkable display of human patience, fortitude and goodwill
\nspread over twelve sessions between 1973 and 1982, the UN
\nConvention of the Law of the Sea was officially signed on Dec. 10
\n1982 by 119 UN member states, including Indonesia. UNCLOS'82
\ncomes into force on Nov. 21, 1994.<\/p>\n
There are three concepts incorporated into UNCLOS'82 which,
\nwhen pieced together, make up the jurisdictional seas of
\nIndonesia.<\/p>\n
The first is the "Archipelagic Concept" (Wawasan Nusantara)
\nwhich was proposed by Indonesia in 1957 and incorporated into
\nUNCLOS'82 as Part IV, Archipelagic States. The second is the
\n"Exclusive Economic Zone Concept" developed by the Asian Legal
\nConsultative Committee in Colombo, 1971 and incorporated into
\nUNCLOS'82 as Part V, Exclusive Economic Zone. The third is the
\n"Twelve Mile Territorial Zone Concept" set forth in Part II,
\nSection Two, Article Three.<\/p>\n
The sum of these three concepts means that under international
\nlaw, Indonesia has jurisdiction over archipelagic waters,
\nterritorial seas and an exclusive economic zone encompassing
\nalmost six million square kilometers of some of the richest seas
\nin the world.<\/p>\n
Also of significance to Indonesia are the three types of
\npassages described in UNCLOS'82. These are: (1) Innocent Passage
\n(Part II, Section Three); (2) Transit Passage (Part III, Section
\nTwo); (3) Archipelagic Sea Lanes Passage (Part IV, Article 53).<\/p>\n
Passage is "innocent" so long as it is not prejudicial to the
\npeace, good order or security of the coastal State. "Transit
\npassage" is solely for the purpose of continuous and expeditious
\ntransit of a strait between one part of the high seas (or EEZ)
\nand another part of the high seas (or EEZ). "Archipelagic sea
\nlanes passage" is right of navigation solely for the purpose of
\ncontinuous, expeditious and unobstructed transit between one part
\nof the high seas (or EEZ) and another part of the high seas (or
\nEEZ).<\/p>\n
Since different laws may be applied in each of the three zones
\nand to each of the three types of passage, the resulting
\ninternational legal regime is either one of great complexity, or
\nof great flexibility, depending on your point of view.<\/p>\n
Part XII, "Protection and Preservation of the Marine
\nEnvironment" completes the impact of UNCLOS'82 on Indonesia. The
\ngeneral thrust (Article 192) is that states have the "obligation"
\nto protect and preserve the marine environment. Further
\nelaboration is provided in Article 194, "Measures to prevent,
\nreduce and control pollution of the marine environment."<\/p>\n
The meeting of these obligations by user and archipelagic
\nstate will require a high degree of state-to-state cooperation.
\nThe user state is primarily interested in the peaceful and safe
\nexecution of legitimate international navigation.<\/p>\n
The archipelagic state is primarily interested in protecting
\nand preserving the marine environment (in addition to national
\nsecurity and well being).<\/p>\n
The constructive use of international law through UNCLOS'82
\ncan assist in maintaining a balance between user state and
\narchipelagic state interests and in so doing improve navigational
\nsafety and reduce the risk of marine pollution in Indonesia's
\njurisdictional seas.<\/p>\n
The writer is the Environmental Management Development in
\nIndonesia (EMDI) Advisor to the Environmental Impact Management
\nAgency (BAPEDAL) on marine pollution and emergency planning. EMDI
\nis a long term Canada-Indonesia bilateral aid project.<\/p>",
"url": "https:\/\/jawawa.id\/newsitem\/by-noel-boston-1447899208",
"image": ""
},
"sponsor": "Okusi Associates",
"sponsor_url": "https:\/\/okusiassociates.com"
}