Introduction

In 2018, Indonesia introduced a new Government Regulation No 4 Year 2018 concerning the Security of the Airspace of the Republic of Indonesia. Among other issues, the regulation specifically deals with aircraft passage above the Indonesian archipelagic sea lanes. In the regulations, article 19 (3) it is stipulated that aircraft passing through the Indonesian archipelagic sea lanes must notify and get diplomatic clearance from the Ministry of Foreign Affairs and the Indonesian Armed Forces. This regulation is potential to be problematic. According to Ambassador Damos Agusman, a former Indonesian foreign ministry legal advisor, from his communications with his counterpart, the United States has raised an objection. Is Indonesia’s new regulations go beyond UNCLOS?

Archipelagic Sea Lanes Passage under UNCLOS

Under Article 53 (1) and (2) of UNCLOS, it is stipulated that “An archipelagic State may designate sea lanes and air routes there above, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea and all ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes.” More specifically, Article 54 of UNCLOS stated that the regime of transit passage in international straits are also applicable in archipelagic sea lanes passage. This means that coastal states shall not hamper the archipelagic sea lanes’ passage. None of these provisions requires an archipelagic sea lanes passage need clearance or has to notify bordering states as long as it is fulfil the obligations under Article 39 on duties and obligations of ships and aircraft.

Indeed under Article 42, bordering states may adopt laws and regulations on archipelagic sea lanes passages. However, there are limitations on these regulations, only on issues such as safety of navigation and regulation of maritime traffic, prevention, reduction and control of pollution, and with respect to fishing vessels, the prevention of fishing, including the stowage of fishing gear. More importantly, it is stated that domestic laws and regulations “shall not discriminate in form or in fact among foreign ships or in their application have the practical effect of denying, hampering or impairing the right of transit passage as defined in this section.”

Indonesia’s domestic regulation on Archipelagic Sea Lanes

Since Indonesia ratified UNCLOS, Indonesia has already had some domestic legislation and regulation to implement the concept of archipelagic states. In 1996 Indonesia enacted a law on Indonesian waters, which basically implement the archipelagic states regime under UNCLOS through Indonesian domestic legislation. Moreover, in 2002 Indonesia also introduced a government regulation specifically dealing with the rights and obligations of foreign ships and aircraft in passing the designated Indonesian archipelagic sea lane. In these regulations, Indonesia only designated the North-South archipelagic sea lanes and has not designated the East-West archipelagic sea lanes. Therefore, the international community considered Indonesia’s archipelagic sea lanes as only partially designated.

Indeed in the 2002 regulations there are also come controversies. The regulations does not specifically mentioned that before Indonesia designated all archipelagic sea lanes, foreign vessels can use any routes normally used for international navigation. It even stated that foreign ships and or aircraft may exercise the Right of Archipelago Sea Lane Passage only through the archipelagic sea lanes as stipulated in this Government Regulation.

More specific, the new Government Regulation on No. 4 Year 2018 on the Security of Indonesian Airspace require notification. On article 19 (3) of the regulations, it is stipulated that a foreign embassy of an aircraft which wish to come across the Indonesian archipelagic sea lanes must notify the Indonesian Foreign Ministry and the Chief of the Indonesian Armed Forces. This regulations, therefore, is potential to be problematic, because UNCLOS guarantee foreign ships and aircraft to use archipelagic sea lanes without notifying the archipelagic states. Moreover, even though archipelagic states are allowed to make some regulations, it is unclear if it can also require a notification and clearance for foreign ships and aircraft wish to use the archipelagic sea lanes passage.

Indeed during the negotiations of the new regulations, there was strong diverging views among some of domestic institutions on whether Indonesia is allowed to posed an obligations for foreign aircraft to notify Indonesian authority when passing through the Indonesian archipelagic states. Some institutions argued that Indonesia could not posed such obligations because UNCLOS has granted the rights for foreign aircraft to use the archipelagic sea lanes. On the other hand, some institutions argued that for national security reason Indonesia could request a notification for aircraft passing through the Indonesian archipelagic sea lanes.

International community response

Other than the United States, through its correspondence, it is unclear if there are already foreign countries which asking for clarification or protesting Indonesia on this new regulation. Even the United States Freedom of Navigation Report has also not included this new regulation as a regulation that is potentially in excess of UNCLOS. The latest US FON Report, which included Indonesia, is the 2021 Fiscal Year report which only challenges other Indonesian regulations on the Limits on archipelagic sea lanes to passage through normal routes used for international navigation. [Indonesian Government Regulation No. 37 on the Rights and Obligations of Foreign Ships and Aircraft Exercising the Right of Archipelagic Sea Lane Passage through Designated Archipelagic Sea Lanes, Jun. 28, 2002.

Possible domestic challenges mechanism

If it is later considered that the government regulation exceeds Indonesian rights and obligations under UNCLOS which has been transformed under law No. 9 year 1996 on Indonesian waters, one possible way to challenge the regulation is through the domestic judicial review process through the Indonesian Supreme Court. Under Article 31 of the Indonesian Supreme Court law, it is stipulated that parties who consider their rights to be impaired as a result of the enactment of statutory regulations under the Law can challenges the regulation to the Supreme Court. The Supreme Court has the authority to declare invalid all statutory regulations of a lower level than laws on the grounds that they conflict with higher statutory regulations.

Aristyo Rizka Darmawan is a lecturer in International Law at Universitas Indonesia and a Ph.D. Scholar at the College of Asia and the Pacific, Australian National University (ANU). His research focuses on the law of the sea and maritime security in Southeast Asia.

Read more on this topic in the Asian Journal of International Law.