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.