By Noel Boston

By Noel Boston

UN sea law has strong implications for RI

The UN Convention on the Law of the Sea (UNCLOS'82) comes into
effect today (Nov. 21, 1994). As a signatory to UNCLOS'82,
Indonesia inherits international responsibilities. Properly
addressed, these can be used to improve navigational safety and
preserve the integrity of the marine environment.

JAKARTA (JP): Historically, the world oceans have been, to a
large extent, lawless. Unwritten codes had general acceptance of
the great seafaring nations of Europe but were not subscribed to
by the seafarers of the Middle East.

The principal concept was freedom of the seas, postulated by
Hugo de Groot in 1644 as Mare Liberum. This laissez-faire
approach allowed the seafaring nations to travel where they
chose, unimpeded.

This was in conflict with coastal states as it opened their
seaways and perceived territorial waters not only to traders but
also to foreign fishermen.

The generally accepted solution of the major seafaring nations
was to allow a three-mile jurisdictional zone for the coastal
state. This can be considered as the forerunner of coastal state
resource control.

Unfortunately, this solution was not consistent with concepts
or methods in other parts of the world. The result was that as
technology and awareness developed, the acceptance of the three-
mile zone decreased to the point that by the 20th century it was
obsolete.

The major breaks in traditional thinking were marked by the
United States claim in 1945 of the continental shelf seabed
resources, and in 1948 when Chile, Peru and Ecuador claimed a
200-mile maritime zone.

The need for uniformity had been recognized earlier. An
attempt was made in 1930, when a Law of the Sea Conference was
held under the auspices of the League of Nations. However, due to
the intervening World War II, the issue was not universally
pursued until the prompting of the above two claims.

A new era in the Law of the Sea began in 1958 when the United
Nations, after careful preparation by the International Law
Commission, convened the first UN Law of the Sea Conference to
fix the agreed limit of the territorial seas as well as to
formulate rules on the conservation and management of marine
resources.

The first two UN conferences on the Law of the Sea held in
1958 and 1960 argued over the management of fisheries and the
extension of territorial seas. Whereas there was some progress in
the former, there was a general lack of consensus in the latter.

The territorial conflict remained throughout the decade of the
sixties and in fact was aggravated by advances in technology
which made the exploitation of marine and seabed resources more
feasible.

In response to concern brought up by UN member nations,
preparation for a third Law of the Sea began in the late 1960s.
In a remarkable display of human patience, fortitude and goodwill
spread over twelve sessions between 1973 and 1982, the UN
Convention of the Law of the Sea was officially signed on Dec. 10
1982 by 119 UN member states, including Indonesia. UNCLOS'82
comes into force on Nov. 21, 1994.

There are three concepts incorporated into UNCLOS'82 which,
when pieced together, make up the jurisdictional seas of
Indonesia.

The first is the "Archipelagic Concept" (Wawasan Nusantara)
which was proposed by Indonesia in 1957 and incorporated into
UNCLOS'82 as Part IV, Archipelagic States. The second is the
"Exclusive Economic Zone Concept" developed by the Asian Legal
Consultative Committee in Colombo, 1971 and incorporated into
UNCLOS'82 as Part V, Exclusive Economic Zone. The third is the
"Twelve Mile Territorial Zone Concept" set forth in Part II,
Section Two, Article Three.

The sum of these three concepts means that under international
law, Indonesia has jurisdiction over archipelagic waters,
territorial seas and an exclusive economic zone encompassing
almost six million square kilometers of some of the richest seas
in the world.

Also of significance to Indonesia are the three types of
passages described in UNCLOS'82. These are: (1) Innocent Passage
(Part II, Section Three); (2) Transit Passage (Part III, Section
Two); (3) Archipelagic Sea Lanes Passage (Part IV, Article 53).

Passage is "innocent" so long as it is not prejudicial to the
peace, good order or security of the coastal State. "Transit
passage" is solely for the purpose of continuous and expeditious
transit of a strait between one part of the high seas (or EEZ)
and another part of the high seas (or EEZ). "Archipelagic sea
lanes passage" is right of navigation solely for the purpose of
continuous, expeditious and unobstructed transit between one part
of the high seas (or EEZ) and another part of the high seas (or
EEZ).

Since different laws may be applied in each of the three zones
and to each of the three types of passage, the resulting
international legal regime is either one of great complexity, or
of great flexibility, depending on your point of view.

Part XII, "Protection and Preservation of the Marine
Environment" completes the impact of UNCLOS'82 on Indonesia. The
general thrust (Article 192) is that states have the "obligation"
to protect and preserve the marine environment. Further
elaboration is provided in Article 194, "Measures to prevent,
reduce and control pollution of the marine environment."

The meeting of these obligations by user and archipelagic
state will require a high degree of state-to-state cooperation.
The user state is primarily interested in the peaceful and safe
execution of legitimate international navigation.

The archipelagic state is primarily interested in protecting
and preserving the marine environment (in addition to national
security and well being).

The constructive use of international law through UNCLOS'82
can assist in maintaining a balance between user state and
archipelagic state interests and in so doing improve navigational
safety and reduce the risk of marine pollution in Indonesia's
jurisdictional seas.

The writer is the Environmental Management Development in
Indonesia (EMDI) Advisor to the Environmental Impact Management
Agency (BAPEDAL) on marine pollution and emergency planning. EMDI
is a long term Canada-Indonesia bilateral aid project.