The Indonesian Straits
incident
In September 1999 Indonesia tempor-
arily closed Sunda snd Lombok Straits
to sea traffic. The Australian response
to the closures raised questions re-
garding the application of the 1992 Uni-
ted Nations Convention on the Law of
the Sea to these straits which lie wjthln
the Indonesian archipelago. This article
reviews whether the regime of transit
passage or archlpelagic sea lanes pas-
sage applies to the stralts and whether
the Indonesian action was justlfied in
light of Indonesia’s adherence to wawa-
sari nusaniara and the uncertain status
of the Law of the Sea Convention.
The author is a Lecturer in the Depa~ment
of Law, University of Sydney, 173-775
Phiilip Street, Sydney, NSW 2000, Austra-
lia.
The author thanks the Australian Depart-
ment of Foreign Affairs and Trade for
assistance in the preparation of the article.
Indonesian authorities were contacted for
their response to the incident but no details
were provided. I am also grateful for com-
ments made on earlier versions of the
article by Professor James Crawford,
Christine Chinkin, and Dr George Hum-
phrey of the University of Sydney. How-
ever, any errors or omissions remain the
full responsibili~ of the author.
‘P. Hastings, ‘Why did Indonesia close
shipping lanes?‘, ‘The Sydney Morning
Herald, 24 October 1988. op 1, 12.
2United Nations Convention. on the Law of
the Sea, done at Montego Bay, Jamaica,
10 December 1982, A/CONF.62/122, re-
continued on p 492
0308-597~90/060491-16 @ 1990 Eu~e~o~h-Heinemann
Transit or a~~hipel~gi~ sea lanes
passage?
Donald R. Rothwell
During the first visit to Indonesia in October 1988 by the newly
appointed Australian Minister for Foreign Affairs and Trade, Senator
Gareth Evans, a story appeared on the front page of the The Sydney
Morning Herald asking ‘Why did Indonesia close shipping lanes?‘. ’ The
story, written by senior foreign affairs journalist, Peter Hastings,
alleged that Indonesia had temporarily closed shipping lanes through
the Sunda and Lombok Straits during September 1988, contrary to its
obligations under the 1982 United Nations Convention on the Law of
the Sea (LOS Convention).2 Noting the importance that Australian
shipping and other maritime powers place on free access through these
straits, Hastings declared: ‘If Indonesia believes it can close internation-
al waterways even on a theoretical basis, all maritime powers must be
concerned. It means that Indonesia is giving notice it will not comply
with international law’.’
Sunda and Lombok Straits are major shipping routes within the
Indonesian archipelago for both Indonesian and international shipping.
Apart from the Straits of Malacca, they are the most important strategic
and commercial shipping routes in Southeast Asia.4 Sunda Strait, which
is SO miles in length, connects the Indian Ocean with the Java Sea. Its
narrowest passage is 13.8 miles, which is further restricted by Sangian
Island which creates two channels; the western channel being 2.4 miles
and the eastern channel 3.7 miles wide.” The strait, which separates
Java from Sumatra, has long served as a major sea link, which, despite
the popularity of the Straits of Malacca, still carries a considerable
amount of traffic from the Indian Ocean and Australia. Lombok Strait
is also of considerable importance to commercial shipping due to its ease
of navigability and the access it provides from the Indian Ocean and
Timor Sea to the Flares Sea and destinations north. The strait is 11 miles
wide with the length of passage being 35 miles.6
The closure of these straits sparked off a series of questions over
international law which dogged Senator Evans and his Indonesian hosts
Ltd 491
 during his few days in Indonesia. Was Indonesia entitled to close
temporarily Sunda and Lombok Straits? What international law applied
in this situation? Can archipelagic States close passage through their
waters so as to disrupt international shipping? What rights are given to
maritime States to ensure their freedom of na~~igati~~n through the
waters of the Indonesian archipelago? Given that the LOS Convention
is yet to come into force, can its provisions have any application at all‘? If
it does apply are those provisions covering international straits or
archipelagoes applicable in this case?
This article will address these issues by way of an analysis of the
events of September and October 1988, and both customary and
Covention-based law of the sea. Conclusions will be drawn on the
validity of the Indonesian action in light of the uncertain status of the
relevant law of the sea and Indonesia’s continued support for the
wawu.sarz nusan~ru concept in Indonesia’s archipelagic waters.

September 1988 closure of Sunda and Lombok Straits

The decision to close temporarily sea traffic in Sunda and Lombok
Straits during September 3988 came from the ~~~minander-in-chief of
the Indonesian Armed Forces. in a memorandum to Indonesian mili-
tary and governmental agencies on 10 September 1988 it was announced
that the ABRI (Indonesian Military) was to conduct an ‘Air/Sea
Tactical Exercise Activity’ from 5 September to 5 October in the
continued from p 491 Malacca, Sunda and Lombok Straits and that due to the danger to
printed in International Legal Materials, Vol ‘general sea traffic’ Sunda and Lombok Straits would at times be ‘totally
21, 1982, pp 1261-1354. closed’.7 The first public notification of the intended closures came by
3Hastings,. & tit, Ref 1, p 7.
%ee M.J. Valencia and St. M. Oanusaput- way of three navigation warnings to mariners released on 13, 14 and 17
ro, ‘Indonesia: Law of the Sea and Foreign September. The warnings specified the coordinates at which ‘sea and air
Policy Issues’, The Indonesian Quarterly,
battle manoeuvre exercise[s]’ would be held in Sunda and Lombok
Vol 12, 1984, p 475.
5M. Leifer, /~ternationa/ Straits of the Straits, announcing that the areas were closed to all ships during 14-16,
Work? Malacca, Singapore and Indonesia, 20-22, and 27-29 September in the case of Lombok Strait and 18-20 and
Sijthoff & Noordhoff, Alphen aan den Rijn,
25-27 September in the case of Sunda Strait.’ The first justification for
The Netherlands, 1978, p 77.
%id, p 79, also see pp 76-85, and J.R. the closures came when the Indonesian journal, Pelira, published on 20
Morgan and D.W. Fryer, ‘The marine September an interview with First Admiral Wirasata, Comm~lndant of
geography of Southeast Asia’, in G. Kent
the Sea Combat Task Force of the Eastern Indonesian Fleet. In
and M.J. Valencia, eds. Marine Policy in
Southeast Asia, Gniverslty of Califdrnia discussing the straits’ closures, the First Admiral admitted:
Press, Berkeley, CA, 1985:
“Official Indonesian Notices relatinq to the . 1that based on the Sea Law Convention III of 14182, Indonesia was entitled to
closure of areas within the Lombok,-Sunda close temporarily a sea lane for the purpose of an exercise, but was obliged to
and Malacca Straits’, Ref T/297/1 988 1130 provide an alternative sea lane as a temporary replacement. Therefore, the
10 September 1988 (English translation
government decision to close Lombok Strait temporarily during the exercise is
and copy provided by the Department of
Foreign Affairs and Trade, Canberra, and not . . contrary to the International Sea Law.”
held on file by author); despite an ‘Exer-
cise Activity’ being conducted in the Despite the acknowledgement that Indonesia was required to provide
Malacca Strait, Indonesian authorities an alternative sea lane during the closure there is no evidence that this
made no attempt to close passage through occurred. However, Lombok and Sunda Straits were never closed to
Malacca Strait during the conduct of these
exercises.
shipping at the same time and it may have been the Indonesian intention
8/bid, Ref 054/3203 08002 13 September that shipping which was inconvenienced by the closure of one of the
1988; 055/3235/88 07002 14 September straits could have taken an alternative route through the other.
1988; 057/329D/88 06002 17 September
1988. When Hastings’ story appeared on 24 October, Australian journalists
“Lombok Strait closed, Indonesian Fleet travelting with Senator Evans began to question lnd~~nesian officials
conducts exercise’, Pelita, 20 September over the legality of the straits’ closures. The Minister of Defence,
1988 (English translation provided by the
Australian Embassy (Jakarta) Translation General Benni Murdani, noted that while Indonesia did recognize the
Unit and held on file by author). right of international passage through these straits, the ‘. . . closing of

492 MARINE POLICY November 1990

 The Indonesian Straits incident: transit or archipelagic sea lanes passage?

the straits for a few days was an exercise which we feel is our sovereign
right’.“’ The following day the Indonesian Foreign Minister, Mr Ah
Alatas, argued at a Press Conference that the straits were. part of
Indonesia’s archipelagic waters and not international straits. Mr Alatas
referred to a ‘legal grey area’ caused by the LOS Convention not yet
being operational and noted that as a consequence Indonesia had not
passed laws proclaiming archipelagic sea lanes, which, even if it had,
could not have been confirmed by the International Maritime Organiza-
tion due to a lack of ‘positive law’ applying to the new archipelagic
regime. Mr Alatas stated:

. . the temporary closure of the straits was not in any way directed towards
hampering international traffic that usually goes through those straits but was
solely motivated by the desire not to cause any danger to passing ships while
temporary exercises were taking place. We also acknowledged the fact that
usually in such cases we will provide alternative routes . I would like to stress
that there is no such intention on our side to permanently block off traffic’s
legitimate innocent passage.”
“C. Forbes, ‘We must coexist, says Mur-
dani’, The (Melbourne) Age, 25 October
Australia first became aware of the Indonesian intention to close Sunda
1988. D 8: H. O’Neil. ‘Indonesia defends
ship-lane closure’, The Sydney Morning and Lombok Straits when the Australian Embassy in Jakarta noted a
Hera/d, 25 October 1988, p 7; R. Eccles- report in the Jakarta press on 19 September 1988.‘* In response to the
ton, ‘Jakarta toughs out diplomatic
straits’ closures the Australian Embassy forwarded an aide memoire to
storms’, Australian, 25 October 1988, p 1.
“‘Joint press conference held by Senator the Indonesian Department of Foreign Affairs on 10 October 1988.
Evans and Mr Alatas in Jakarta’, 25 Octo- Noting the navigation warnings and suspension of passage through the
ber 1988, p 6 (held on file by author); for
straits at various times between 14 and 29 September, the aide memoire
further Indonesian comment see, A.Z.
Umar Purba, ‘About Lombok and Malaka’, stated: ‘Australia considers that these straits are important routes for
Tempo, 5 November 1988, p 27 (English international navigation through and over which all ships and aircraft
translation by the Australian Embassy
enjoy rights of passage, and that passage through and over these straits
(Jakarta) Translation Unit and held on file
by author). may not be hampered or suspended under international law’.” It was
‘*Letter from M.J. McKeown, Acting Assis- further noted that Australia had supported Indonesia’s claim for a
tant Secretary, Treaties and Sea Law
special regime within its archipelago, but, always on the basis that
Branch, Department of Foreign Affairs and
Trade, 6 December 1988 (held on file by satisfactory guarantees would be given for passage through and over
author). archipelagic waters. Australia reserved the right for its ships to pass
13Embassy of Australia (Jakarta), ‘Aide
through Indonesia’s archipelagic waters in accordance with the LOS
Memoire’, 10 October 1988 (held on file by
author). Convention and hoped that these rights would be respected.14 When
’ “Ibid. Senator Evans was questioned by Australian journalists over the
‘5Op tit, Ref 11, p 7.
incident, he reasserted the view put to Indonesia in the Australian
?bid, and see ‘Extract from Senator
Evans’ interview with Australian Televi- Embassy’s aide memoire:
sion’, Australian High Commission, Singa-
pore, 26 October 1988 (held on file by . we don’t accept that Indonesia’s sovereignty extends to any right to close at
author). will for whatever reason particular passages whether they be unequivocally
“In a letter to the author from the First
international in character or whether they be these archipelagic sea lanes. There
Secretary, Embassy of the Federal Repub-
lic of Germany (Canberra), it was express- is a grey area in terms of this question of temporary closure for particular
ly stated that ‘no representation or note identified purposes in respect of which I think there may still be some
had been lodged with the Indonesian Gov- differences of opinion, but they are differences that can be worked out in further
ernment; while a letter from D.H. Small, discussion. ”
Assistant Legal Adviser (Oceans, Interna-
tional Environment and Scientific Affairs), Following talks between Australian and Indonesian officials the ‘inci-
US Department of State, acknowledged
the USA did express ‘its concern to the dent’ was resolved by the conclusion of Senator Evans’ Indonesian
appropriate Indonesian governmental offi- visit. ”
cials’ (both letters held on file by author). What the official or unofficial reaction of other maritime States was to
“It was speculated that diplomatic notes
were presented to the Indonesian govern- the straits’ closures is a matter of conjecture.17 However, given the
ment by the USA, the UK, FR Germany, concern which many of them raised at the Third United Nations
New Zealand and Japan; see P. Hastings, Conference on the Law of the Sea (UNCLOS III) about the freedom of
‘Indonesia defends ship-lane closures’,
The Sydney Morning Herald, 25 October navigation, it would be fair to assume that other maritime States would
1988, p 7. have been alarmed about the closure of Sunda and Lombok Straits.lx

MARINE POLICY November 1990 493

 This xeview of the events which took place in September and October
198X indicates the significance of the law of the sea in assessing this
dispute. Yet while both Indonesian and Australian officials relied upon
the LOS Convention to support their respective positions, it was also
clear that a degree of uncertainty existed as to the state of the applicable
international law. It is therefore necessary to consider in detail the law
of the sea as it applies to straits and archipelagoes, in both its customary
and Convention-based forms, to determine what international law
actually applied in this particular incident.

Innocent passage through straits

As a consequence of the encroachment of coastal State jurisdiction over
adjacent waters, the right of passage by shipping through narrow
stretches of waters such as straits became increasingly important. While
it was generally accepted that coastal States had jurisdiction over ships
which passed through straits which lay within their territorial waters,
this right of passage was not to be refused as long as it was ‘innocent’.“’
In 1949 the customary international law on passage through straits had
developed to such a stage that the International Court of Justice in the
Co@ Channel Case2” was prepared to accept that the right of innocent
passage existed for a warship.
The 1958 Convention on the Territorial Sea and Contiguous Zone
(1958 Geneva Con~~ention)*’ codified in treaty form the customary
international law on ‘innocent passage’ through the territorial sea.
Article 34(l) recognized that ships of all states enjoyed the right of
‘innocent passage’ through the territorial sea. The right of passage
included stopping and anchoringZ2 and was defined in Article 14(4) as
being: ‘. . . not prejudicial to the peace, good order or security of the
coastal State’. While coastal States were obliged to not ‘hamper’
innocent passage and to give publicity to dangers to navigation,” the
regime of innocent passage did not guarantee free passage at all times.
“For a discussion of the development of The coastal State was permitted to suspend temporarily innocent
the law on straits, see E. Bruel, lnfernatio~ passage ‘if such suspension is essential for the protection of its security’,
a/ Straits, Vols I & II, Sweet & Maxwell,
London, 1947; and, D.P. O’Connell, The
though this did not apply to a strait used for international navigatioI1.~~
lnfer~ationaf Law of the Sea, Vol I, LA. Innocent passage was guaranteed by Article lh(4) through ‘straits used
Shearer, ed, Clarendon Press, Oxford, for international navigation’ , such navigation defined as being ‘between
1982, Chapter 7.
20UK v Albania, international Court of JUS-
one part of the high seas and another part of the high seas or the
tice Reports 4, 1949. territorial sea of a foreign state’.
“Convention on the Territorial Sea and Despite the effort in the 1958 Geneva Convention to create a regime
the Contiguous Zone, done at Geneva, on
29 April 1958, entered into force on 10
of innocent passage in the territorial sea, it left many questions
September 1964, 516 UNTS 205, (1965) regarding straits unanswered. Where the waters of a strait comprised
UKTS 3, 52 (1958) AJIL 834; 516 United the territorial sea of adjacent States, innocent passage seemed to be
Nations Treaty Series 205.
“*Article 14(3).
guaranteed. However, what was the case where the waters were claimed
23Article 15. to be ‘internal’ and also part of a strait‘~25 There was also no complete
24Articles 16(3) and 16(4). definition of ‘international navigation’ through straits, the only refer-
“?See O’Connell, op cif, Ref 19, p 316.
%See Bruel, op tit, Ref 19, p 79 for a
ence being to passage by ships from one maritime zone to another,
geographical definition of a strait; also R.R. without mention of a geographical’” or functional criterion. As a
Baxter, The Law of /nternafionat Water- consequence of these defects in the 1958 Geneva Convention, custom-
ways, Harvard University Press, Cam-
bridge, USA, 1964, p 3.
ary international law on passage by shipping through straits continued to
“For a review of the problems which ex- develop, and the law applicable to passage through straits became one
isted with the law on passage through of the most important issues for discussion when UNCLOS III convened
straits during this period between the 1958
Convention and UNCLOS III, see O’Con-
in 1973.” The law on passage through straits was in so much flux that
nell, op tit, Ref 19, pp 317-327. O’Connell concluded in the early 1980s that it was still part of customary

494 MARINE POLICY November 1990

 The Indonesiarz Straits incident: transit or a~c~ipelagi~ sea lanes passage?

law and should be considered an ‘autonomous institution’ as neither

high seas passage nor innocent passage through the territorial sea
applied.‘s
Part I, Section 3 of the LOS Convention provides for innocent
passage in the territorial sea and duplicates, with some additions, the
regime adopted in the 1958 Geneva Convention. New provisions were
inserted regarding the use by coastal states of traffic separation schemes
and sea Ianes29 and passage by foreign nuclear-powered ships and ships
carrying dangerous or noxious substances.“” Article 24 asserts that the
coastal State may not hamper innocent passage and shall not:

(a) impose requirements on foreign ships which have the practical effect of
denying or impairing the right of innocent passage; or
(b) discriminate in form or in fact against the ships of any State or against ships
carrying cargoes

Part III creates a new regime for straits used for international naviga-
tion. This part recognizes four types of passage through international
straits. These are:

(1) the right of ‘transit passage’ through straits used for ‘international
navigation’ which connect one part of the high seas or exclusive
economic zone (EEZ) with another part of the high seas or the
EEZ3’
PI innocent passage through straits used for international navigation
formed by the mainland and an island of the State bordering the
strait and where there exists to seaward a route through the high
seas or EEZ of similar convenience;“2
(3) the normal freedoms of navigation and overflight as prescribed in
the LOS Convention apply to straits used for international naviga-
tion through which there exists a route on the high seas or EEZ;3”
(4) the recognition and application of previously negotiated long-
standing international conventions regarding passage by shipping
through particular straits, notwithstanding Part III of the LOS
Convention.~~

From this new regime for ‘international straits’ comes the concept of
‘transit passage’, defined in Article 38(2) as:

. . . the exercise in accordance with this Part of the freedom of navigation and
overflight solely for the purpose of continuous and expeditious transit of the
strait between one part of the high seas or an exclusive economic zone and
another part of the high seas or an exclusive economic zone.

Other provisions dealing with transit passage outline the duties of ships
and aircraft during transit passage,“5 the designation of sea lanes and
traffic separation schemes by the coastal State,j6 and the applicability of
**O’Connell, op tit, Ref 19, p 327.
2sArticle 22.
transit passage laws adopted by coastal States bordering straits.“’
“oArticle 23. Significantly, the LOS Convention also ensures that transit passage will
3’Articies 37 and 38. be unimpeded and provides in Article 44 that: ‘States bordering straits
32Articles 38( 1) and 45.
33Article 36. shall not hamper transit passage and shall give appropriate publicity to
34Article 35(c); relevant examples of these any danger to navigation or overflight within or over the strait of which
four types of passage through straits are they have knowledge. There shall be no suspension of transit passage’.
found in D.L. Larson, ‘Innocent, transit,
and archipelagic sea lanes passage’,
Despite this considerable improvement in the law of navigation
Ocean Development and international through straits, problems still remain. One of the most obvious is that
Law, Vol 18, 1987, pp 414-415. nowhere does the LOS Convention specify what is a ‘strait used for
35Article 39.
36Article 41. international navigation’. While Article 37 does lay down the geo-
37Article 42. graphical requirement that the strait should connect ‘one part of the

MARINE POLICY November 1990 495

The Indonesian Sfraits incidrnr: fransir or archiprlugic serr lanes f~us.vq~~?

high seas or an exclusive economic zone and another part of the high
seas or an exclusive economic zone’. there still remains the functional
criterion that the strait be used for ‘international navigation’. One
suggested definition of this requirement is that:

there must be frequent use of the area by international traffic and the strait must
consistently carry some of this international traffic including that part which is
not destined for ports on the strait’s coastlines. The degree of importance of the
particular strait to international sea commerce and readily available alternative
routes must be the decisive factor.”

Using this test, once the geographical criterion has been fulfilled, the
functional criterion could easily be determined on the basis of relevant
shipping statistics for the strait in question.“”

Indonesian archipelagic concept

Indonesia has long advocated that its status as a geographical archipela-
go should be given international recognition in the law of the sea. In
support of this claim Indonesian governments since independence have
argued both domestically and internationally that the Indonesian islands
and waters between them constitute one unified nation. This is man-
ifested in the wawu~an nusantura concept which seeks the unification of
the land, waters, and the people of Indonesia.“” This concept encapsu-
lates the attitude adopted by Indonesians towards their country, one in
which they regard:

all of their islands and the waters around and interconnecting those islands as
one entity.The term ‘fatherland’ in Indonesian is ranall air which means ‘land
and water’. The nationhood of Indonesia is built on the concept of unity
“Royal Australian Navy, Manual of Inter- between the Indonesian islands and the inter-connecting waters. Those seas are
national Law, Vol I, Royal Australian Navy, regarded as a unifying, not a separating, element.”
Canberra, 1987, para 2-21; and see T.B.
Koh, ‘The territorial sea, contiguous zone, Wuwasun nusunfuaru was first officially expressed by the Indonesian
straits and archipelagoes under the 1982 government in the Djuanda Declaration of 13 December 1957. The
Convention on the Law of the Sea’, Malaya
Law Review, Vol 29, 1987, pp 176-l 89:
Declaration affirmed the concept of the Indonesian archipelago as an
391bid, Koh, p 180, also see Bruel, op tit, entity, encompassing the islands and waters. It stated that:
Ref 19, pp 43-45 who nominated 35 ‘inter-
national; ‘straits in 1947; while Larson, op all waters around, between and connecting, the islands or parts of islands
tit, Fief 34, p 424 also refers to specific lists belonging to the Indonesian archipelago irrespective of their width or dimension
of ‘international’ straits; for a further review are natural appurtenances of its land territory and therefore an integral part of
of the transit passage regime In the LOS
Convention see V.D. Bourdunov, ‘The the inland or national waters subject to the absolute sovereignty of Indonesia.
right of transit passage under the 1982 The peaceful passage of foreign vessels through these waters is guaranteed as
Convention’, Marine Policy, Vol 12, No 3, long and insofar as it is not contrary to the sovereignty of the Indonesian state or
1988, pp 219-230. harmful to her security.”
4oWawasan means outlook; nusantara re-
fers to people. Despite diplomatic protests from Australia, France, the USA, the UK,
4’N. Wisnomoerti, ‘Indonesia and the law
of the sea’, in C-H Park and J.K. Park, eds,
Japan and New Zealand,“3 the Declaration was implemented internally
The Law of the Sea: Problems from the in 1960. The effect of the 1960 Act was to draw connecting baselines
fast Asian Perspective, Law of the Sea around Indonesia’s outmost islands so as to enclose the waters within
Institute, Honolulu, 1987, p 392.
“‘M.M. Whiteman, Digest of lnternafional
those baselines and classify them as ‘internal waters’.j4 While this action
Law, Vol 4, US Department of State, was contrary to existing customary law of the sea and the 1958 Geneva
Washinaton. DC. 1965, P 284. Convention, Article 3 did permit ‘innocent passage’ by foreign vessels
43/hid gp 284-285; O’Cbnnell, op tit, Ref
19, p i49.
through these waters. Such passage was to be regulated by Government
44Article 1, Act Concerning Indonesian Ordinance. This in fact occurred in 1962 when a Government Regula-
Waters (1960), reprinted in National Leg- tion concerning ‘Innocent Passage by Foreign Water Vehicles within
islation and Treaties Relating to the Law of
the Sea, UN Dot A/Conf.l9/5/Add.l, pp
Indonesian Waters’ was enacted. Article 1 affirmed that innocent
3-4. passage of foreign vessels was guaranteed within lndonesian waters

496 MARINE POLICY November 1990

 The Indonesian Straits incident: transit or archipelagic sea lanes passage?

while the remainder of the regulation substantially implemented the

innocent passage regime of the 1958 Geneva Convention.4” One signifi-
cant difference from the Convention was Article 4(l), which provided:
‘To safeguard its sovereignty and security, the Republic of’Indonesia
has the right to place a temporary ban on innocent passage in certain
parts of Indonesia’s waters’. However, Indonesian commentators point
out that at all times during this period passage through Indonesian
waters remained unimpeded.46 Indonesian recognition of wawasan
nusanturu continued in 1973 when the Indonesian People’s Consultative
Assembly further supported its implementation and recognition.47
It was this internal implementation of wuwusun nusunturu on which
Indonesia sought to base its claim for international recognition of a new
archipelagic regime at UNCLOS III. It presented itself at the Confer-
ence confidently believing that it had built up a strong enough case for
its claims to be recognized, due to: (1) its consistent adherence to the
wawu~un nusunturu concept in Indonesian law, having effect on both
internal and international laws: (2) acquiescence on the part of neigh-
bouring States who implicitly accepted the existence of Indonesian
baselines which surrounded the archipelago; and (3) the international
support the emerging archipelagic regime advocated by Indonesia, the
Philippines, Fiji and Mauritius had received in international fora.
Despite there being considerable support at UNCLOS III for the
recognition of an archipelagic regime, the negotiations became stalled
on a number of issues.49 Eventually a compromise definition of
45Government Regulation of 1962 (English ‘archipelago’ was agreed upon which included those archipelagic States
translation provided by the Australian recognized as being such by the Conference, and a regime of ‘archipela-
Embassy (Jakarta) Translation Unit and
gic sea-lanes passage’ was implemented so as to facilitate the passage of
held on file by author); also see the accom-
panying ‘Elucidation on Innocent Passage international shipping through archipelagic waters. While Indonesia did
by Foreign Water Vehicles within Indone- not obtain recognition of all it had sought in these negotiations it was
sia’s Waters’ from the same source.
prepared to accept the LOS Convention, as is evidenced by its signature
46M. Kusumaatmadia, ‘The concept of the
Indonesian archipelago’, The Indonesian and later ratification.5”
Quarter/v. Vol 10. 1982. D 12 at D 15; D.P.
O’Connell, ‘Mid-ocean archipelagoes in in-
ternational law’, British Yearbook of Inter-
national Law, Vol 45, 1971, p 1 at pp
LOS Convention archipelagic regime
41-42.
47Decisidn No.4/MPR/1973; see also Wis-
The LOS Convention deals with archipelagic states in Part IV, defining
nomoerti, op tit, Ref 41, p 393. an ‘archipelagic State’ as a State that is wholly constituted by one or
@B A Hamzah, ‘Indonesia’s archipelagic more archipelagoes including other islands.51 The term ‘archipelago’ is
regime’, Marine Policy, Vol 8, No 1, 1984,
D 30:. and O’Connell, oo tit, Ref 46, pp
given a geographical definition which recognizes the need for an
38-42. ‘intrinsic geographical, economic and political entity’,52 while Article 47
4gFor a review of the negotiations, see requires that the baselines which are drawn around the outmost islands
C.S.N. Narakobi, ‘The regime of archipela-
goes in international law’, in J.M. Van
of the archipelago include the main islands of the archipelago and that
Dyke, L.M. Alexander and J.R. Morgan, the ‘ratio of the area of the water to the area of the land, including
eds, International Navigation: Rocks and atolls, is between 1 to 1 and 9 to 1’.
Shoals Ahead?, Law 07 the Sea Institute,
Honolulu. 1988. DD 220-230; and Leifer.
The waters within the archipelago are described as ‘archipelagic
op tit, Ref 5, pp i 27-l 48. waters’ over which the State has sovereignty which extends to the
5oWisnomoerti, op tit, Ref 41, pp 395-397. waters, seabed, subsoil and resources within them.53 Within archipela-
“Article 46(a); thereby excluding a non-
state archipelago such as Hawaii.
gic waters there are in effect two separate regimes applicable to passage
52Article 46(b). by shipping. Article 53 details the regime of ‘archipelagic sea lanes
53Article 49. passage’, giving the archipelagic State the option to designate sea lanes
54Article 53(g); this is conceded to be the
International Maritime Organization, see
which are ‘suitable for the continuous and expeditious passage of
T.H. Busha, ‘The response of the Interna- foreign ships . . . through or over its archipelagic waters and the
tional Maritime Organization to references adjacent territorial sea. The sea lanes, which are to be approved by a
in the 1982 Convention to the “Competent
International Organization” ‘, in Van Dyke
‘competent international organization’,“4 are to follow normal passage
et al, op tit, Ref 49, pp 245-246. routes along continuous axis lines from points of entry to exit, ships

MARINE POLICY November 1990 497

The Indonesian Straits incident: transit or archiplagic sea lmes passuge?

traversing the sea lanes being allowed to deviate 25 miles either side of
the axis lines.5” If sea lanes are not designated, then the right of
archipelagic sea lanes passage may be exercised through routes ‘normal-
ly used for international navigation’.5” The right of ‘archipelagic sea
lanes passage’ is defined as ‘navigation in the normal mode solely
for the purpose of continuous, expeditious and unobstructed transit
between one part of the high seas or exclusive economic zone and
another part of the high seas or an exclusive economic zone’.” Article
54 deals with the rights and duties of both the archipelagic State and
shipping during this right of passage, expressly incorporating Articles
39,40,42 and 44 dealing with the regime of transit passage into this part
of the LOS Convention. Under Article 44 as so applied. archipelagic
states are not to hamper or suspend ‘archipelagic sea lanes passage’.
Article 52 deals with the right of ‘innocent passage’ through
‘archipelagic waters’, but is to be read in light of Article 53 and the
separate provisions dealing with ‘archipelagic sea lanes’. While the right
of ‘innocent passage’ through these waters is granted for ships of all
states, Article S2(2) provides:

The archipelagic State may, without discrimination in form or in fact among

foreign ships, suspend temporarily in specified areas of its archipelagic waters
the innocent passage of foreign ships if such suspension is essential for the
protection of its security. Such suspension shall take effect only after having
been duly published.

Therefore, within ‘archipelagic sea lanes’, it is not possible to suspend or

hamper passage by foreign ships. Yet, beyond the confines of those sea
lanes, within the more expansive ‘archipelagic waters’, it is possible to
suspend temporarily ‘innocent passage’ in certain circumstances.

Customary international law in the Indonesian archipelago

What then was the position in international law with respect to the
Sunda and Lombok Strait closures? Certainly, if it is accepted that
navigation through the straits has continued to be regulated by Indone-
sian law, it is entirely possible that Indonesia’s action was valid. While
the 1962 Government Regulation recognized foreign vessels had the
right of innocent passage within Indonesian waters, it should be recalled
that Article 4(l) expressly recognized that Indonesia could place a
‘temporary ban on innocent passage in certain parts of Indonesia’s
waters’. The accompanying elucidation to this Government Regulation
also noted that: ‘. . the President of the Republic of Indonesia has the
authority to close temporarily certain parts of Indonesia’s waters against
passage by foreign water vessels if such action is considered necessary to
protect the state’s defence and security’.“* It could therefore be argued
that during the past 30 years that it has pursued WUWUS~P~tzusmtaru.
Indonesia has built up a case for the recognition of its claim to
jurisdiction over the waters within the archipelago. It has also during
this time maintained a right to suspend temporarily innocent passage
through Indonesian waters, a similar right to that recognized in the 1958
Geneva Convention,“’ though only within the territorial sea.
55Article53(4) and 53(5). Despite the fact that Indonesia never became a party to the 195X
56Atticle53( 12). Geneva Convention, it should be recalled that Indonesian claims made
57Article 53(3).
58Elucidation, op cif, Ref 45, p 6. in the late 1950s and early 1960s over the so-called ‘internal waters’ of
59Article 16(3). the archipelago were very similar to the regime of the territorial sea as

498 MARINE POLICY November 1990

 The Indonesian Straits incident: transit or archipelagic sea lanes passage?

recognized by that Convention. While the Indonesian claim over these

‘internal waters’ did not go unchallenged, the subsequent recognition
given to the archipelagic concept at UNCLOS III does strongly support
an argument that it had become a part of customary international law
before 1982. Whether the Indonesian claim to suspend temporarily
passage through these waters also materialized into customary law is
very difficult to determine. Apart from two incidents which took place
in 1958 during a period of tension with its former colonial ruler, the
Netherlands, ‘” there is no evidence prior to the events of 1988 to suggest
that Indonesia had suspended rights of passage to international ship-
ping. In these circumstances it would be difficult to argue that such a
claim had materialized into customary international law.

Which law of the sea regime applies?

If Indonesia did not have the ability under customary international law
to close the straits temporarily then only the LOS Convention can
provide justification for the action taken. When considering the law of
the sea in September 1988, it was possible for Sunda and Lombok Straits
to be classified as Indonesian ‘internal waters’, ‘territorial sea’, ‘interna-
tional straits’, ‘archipelagic waters’ or ‘archipelagic sea lanes’. As
previously noted, different rights of passage apply to all these waters.
Indonesia’s wawasan nusantara approach to the archipelago, its role at
UNCLOS III, and confusion in 1988 as to what law of the sea regime
actually applied in the straits does not provide a ready answer to this
question. It therefore becomes necessary to make a careful analysis of
the applicability of each regime to Sunda and Lombok Straits if a
determination is to be made on whether the straits’ closures were valid
in international law.

Internal waters
While the Indonesian declarations and legislation of 1957, 1960 and
1962 all make reference to the waters of thearchipelago within the outer
baselines of the archipelago as being ‘internal’, it would seem that at no
time did Indonesia attempt to claim the same degree of extensive
sovereignty over internal waters as that applicable to ‘internal waters’ in
the 1958 Geneva Convention and the LOS Convention.61 There is little
evidence of straits ever being recognized as ‘internal waters’.62 The fact
that Indonesia has been prepared to recognize that international ships
6oO’Connell, op tit, Ref 46, p 41; cf Hast-
ings, op cif, Ref 1, who makes unsubstanti- have a right of ‘innocent passage’ through these so-called ‘internal
ated reference to closures in 1964 and waters’ is inconsistent with Sunda and Lombok Straits being strictly
1978. ‘internal waters’ as that term is understood in the law of the sea.
6’Note that when depositing its ratification
of the Geneva Convention on the High
Seas, done at Geneva on 29 April 1958, Territorial sea and innocent passage
entered into force on 30 September 1962,
450 UNTS 11, (1963) UKTS 5, 52 (1958)
Both straits are narrow enough to fall within the 12 nautical mile
AJIL 842, Indonesia made a ‘reserva- territorial sea recognized by UNCLOS.6” However, at no time has
tion’ to the effect that ‘The terms “territorial Indonesia publicly claimed that the waters of these straits are territorial
sea” and “internal waters” mentioned in
the Convention, as far as the Republic of
waters as that term is understood in either customary international law
Indonesia is concerned, are interpreted as or the LOS Convention, nor did it seek to rely upon Article 25(3) to
In accordance with [what follows is a de- justify the temporary suspension of passage during the September 1988
scription of the relevant 1960 Acts and
subsequent regulations] .‘, Multilateral weapons exercises. The territorial sea regime is not designed to apply to
Treaties deposited wirh the Secretary- these straits and it has never been accepted by the international
General, United Nations, New York, 1986, community that it would. Indeed, a major advance in the LOS
p 709.
620’Connell, op cif, Ref 19, pp 385-388.
Convention was the recognition of separate regimes controlling passage
63Article 3. by international shipping through straits and archipelagoes, regimes

MARINE POLICY November 1990 499

The Indonesian Straits incident: transit or archipelagic sea lanes passage?
64Bruel, op cif, Ref 19, p 44 considered
Sunda Strait to be such, while Larson, op
tit, Ref 34, p 424 refers to other modern
commentators who considered both Sun-
da and Lombok Straits to be ‘international
straits’.
65Article 37.
66K.L. Koh, Straits in international Naviga-
tion: Contemporary Issues, Oceana Pub-
lications, London, 1982, p 18.
500
which were to apply irrespective of the right of innocent passage
through the territorial sea, because of the need to ensure freedom of
navigation through certain passages of water. It would therefore seem
that though Article 25(3) would in part support the Indonesian action if
the straits were considered territorial waters, neither Indonesia, nor the
international community, has ever considered that this regime was
applicable to Sunda and Lombok Straits.
International straits and transit passage
The regime of transit passage through international straits is one that is
much more likely to apply to these straits. Sunda and Lombok Straits
easily fulfil the functional criterion of being ‘straits used for internation-
al navigation’.h4 Do they meet the geographical criterion? It was noted
previously that in effect ‘transit passage’ applies only to one type of
international strait, in which case both Sunda and Lombok would only
fall into this category if they facilitate ‘international navigation between
one part of the high seas or exclusive economic zone and another part of
the high seas or an exclusive economic zone’.” It is possible to adopt
two views of this geographical requirement depending on how ‘between’
is interpreted. Does it mean ‘immediately’ between, or can it be read in
the wider geographic sense of a voyage through an archipelago from one
high sea to another? Ships approaching from the south proceed through
the high seas or exclusive economic zone of either Australia or
Indonesia prior to entering the straits, but upon leaving the straits
proper these ships enter ‘archipelagic waters’. Therefore, once these
ships exit from passage through the straits they enter the ‘archipelagic
waters’ of the Java and Flores Sea, not high seas or exclusive economic
zone as is required by Article 37 for the ‘transit passage’ regime to
apply. The reverse situation applies to ships approaching from the north
in that immediately prior to entering the straits they are sailing through
‘archipelagic waters’. It would seem on this analysis, applying the
various maritime zones and regimes recognized in the LOS Convention,
that Sunda and Lombok Straits do not meet the geographical criterion
necessary for the ‘transit passage’ regime to apply. If a wider view of
‘between’ is taken, so as to look at the whole voyage through all the
straits of an archipelago, a different result is reached. Koh has argued
that straits within archipelagoes should be seen as part of a network of
geographical straits through which international shipping passes in order
to navigate through the archipelago. Therefore:
. if straits ultimately link part of the high seas or an economic zone, the fact
that the immediate geographical connection consists of two bodies of archipela-
gic waters becomes irrelevant. If this is accepted then some archipelagic sea
lanes could well be classified as straits used for international navigation.”
It follows from this analysis that if ships which enter Sunda and Lombok
Straits do so before or after transitting the other major shipping routes
in the Indonesian archipelago in order to access or exit the South China
Sea or.the Celebes Sea, then Sunda and Lombok Straits do fall into the
category of straits used for international navigation through which the
transit passage regime applies. This would obviously be the case with
ships merely using these Indonesian waters and straits for the purpose of
navigating through the Indonesian archipelago to destinations further
south or north and the passage would in effect be through a series of
straits from one end of the archipelago to the other.
MARINE POLICY November 1990

“‘While Article 50 allows closing lines to be
drawn within archipelagic waters, it is im-
probable that Articles 9 (Mouths of Rivers),
IO (Bays) and 11 (Ports), with which these
lines must be drawn in accordance with,
would allow the waters of these straits to
be so classified.
“*See ‘Discussion: tentative designation of
Indonesia’s sea lanes’, in Van Dyke et al,
op tit, Ref 49, pp 263-264 where it is
suggested that the delay in designating
Indonesian sea lanes was due to differ-
ences between Indonesia and the Interna-
tional Maritime Organization on the loca-
tion of the sealanes.
69Further support for this proposition can
be drawn from Articles 31 and 32 of the
Vienna Convention on the Law of Treaties,,
done at Vienna on 22 May, 1969 and in
force from 27 January 1980, UN DOC A/
CONF. 39127, International Legal Mate-
rials, Vol 8, 1969, p 679, of which Article
31(l) provides: ‘A treaty shall be inter-
preted in good faith in accordance with the
ordinary meaning to be given to the terms
of the treaty in their context and in the light
of its object and purpose’.
MARINE POLICY November 1990
The Indonesian Straits incident: transit or archipelagic sea lanes passage?
Archipelagic waters and sea lanes
Finally, consideration must be given to the archipelagic States regime
recognized by Part IV of the LOS Convention. The action taken by
Indonesia during the 1960s to draw baselines around the outermost
islands of its archipelago has been considered adequate enough to
comply with the requirement in Article 47, thereby ensuring under
Article 49 that the waters within the archipelago are given the status of
‘archipelagic waters’. Apart from those areas delimited as internal
waters - and there is no evidence to suggest that Indonesia has taken
this step with the waters in Sunda and Lombok Strait@’ - passage
through these ‘archipelagic waters’ is guaranteed by the right of
‘innocent passage’ as that term is understood in Part II, Section 3 of the
LOS Convention. Within archipelagic waters there also exist ‘archipela-
gic sea lanes’, which it should be recalled had not been designated by
Indonesia or the International Maritime Organization prior to the straits
closure of September 1988. 68 Yet Article 53(12) provides that the right
of ‘archipelagic sea lanes passage’ can be exercised despite appropriate
sea lanes not yet having been designated, via ‘routes normally used for
international navigation’. On the evidence it would certainly seem that
both Sunda and Lombok Straits are routes normally used for interna-
tional navigation.
While on one interpretation it could be argued that the internal
waters or territorial seas regimes could apply to Sunda and Lombok
Straits, it would seem that the more specialized regimes of international
straits and archipelagic sea lanes recognized by the LOS Convention are
the most applicable. With respect to the right of transit passage through
international straits, difficulty exists in applying it to straits that form
part of an archipelago due to the ambiguity created by the word
‘between’ in Article 37. It can therefore be concluded that the special-
ized archipelagic regime created by Part IV of the 1982 Law of the Sea
Convention is the most applicable to Sunda and Lombok Straits
because:
(1) Part IV of the LOS Convention establishes a unique regime for
archipelagoes, one which Indonesia has been striving to gain
international recognition of for 30 years;
(2) waters within the baselines of an archipelago can only be classified
as internal waters, archipelagic waters or archipelagic sea lanes;
(3) while Indonesia has in the past called these waters ‘internal’, the
Indonesian definition of ‘internal waters’ is contrary to that
accepted in either customary international law or by previous or
present convention law;
(4) Indonesia’s long-standing claim to these waters as part of its
wawasan nusantara concept is similar to the principles embodied in
the rights guaranteed to archipelagic States by Part IV of the LOS
Convention; and
(5) though the nature of an archipelago is such that geographic straits
exist within it, no specific mention of straits or straits used for
international navigation is made in Part IV of the LOS
Convention.69
It would therefore seem that upon an analysis of the LOS Convention,
the provisions of Part IV dealing with the archipelagic regime govern
passage of ships through the waters of the Indonesian archipelago and in
particular Sunda and Lombok Straits.
501
The Indonesian Straits incident: transit or urchipelagic secl lanes pus.sugeY)

Did the straits’ closure breach international law?

If the waters of Sunda and Lombok Straits are considered by the LOS
Convention and apparently by the international community to be
archipelagic waters, was Indonesia justified in temporarily closing the
straits to passage by shipping? Under the LOS Convention, it would
seem that Articles 52, 53 and 54 are central to determining this issue. As
previously noted, these articles create a dual regime under which Sunda
and Lombok Straits can be considered as either ‘archipelagic waters’ or
part of an archipelagic sea lane. Which classification applies?
There can be no doubt that as the waters of the straits are within
Indonesia’s archipelagic baselines then they are for the purposes of
Article 52 ‘archipelagic waters’. It should be recalled that Article 52( 1)
incorporates the right of ‘innocent passage’ as described in Part II,
Section 3 of the LOS Convention into the regime of ‘archipelagic
waters’. Article 52(2) also gives to archipelagic States a right to suspend
passage by foreign ships ‘if such suspension is essential for the protec-
tion of its security’ through archipelagic waters. Yet, unlike the right of
a coastal State to suspend temporarily innocent passage during
‘weapons exercises’,‘” this right is not specifically extended to the
archipelagic State. Therefore, while the ‘innocent passage’ regime
through territorial sea and archipelagic waters gives to the coastal or
archipelagic State a right to suspend passage, the right given by Article
52(2) to archipelagic States is not as wide as that given to coastal States
by Article 25(3).
What then is the effect of Article 52(2) and the ability of the
archipelagic State to suspend innocent passage for security reasons? In
this particular case the issue is whether weapons exercises or tactical
manoeuvres involving naval and air forces are considered to be ‘essen-
tial for the protection’ of the security of the archipelagic State. One view
would be that it is, in that if the military forces of a State are not trained
and readied for action by way of simulated battle manoeuvres then that
State’s security could be at risk due to the inadequate training and state
of preparedness of its military forces. Yet the mere fact that weapons
exercises are referred to in Article 25 and not in Article 52 would seem
to indicate that these manoeuvres may not fall within the more
restricted ambit of Article 52. Suspension of passage due to an essential
need to protect security is more likely in an instance where there was an
internal or external threat to an archipelagic State’s security from a
military force of another State, or from a separatist movement based on
one or many islands and using archipelagic waters as a means of
transport and communication. If this is so, and certainly the difference
in wording between Articles 25 and 52 would suggest this view, then the
military exercises which Indonesia conducted during September 1988
cannot be relied upon to justify the suspension of passage through
Sunda and Lombok Straits.
The other view regarding the application of the archipelagic regime to
70Article 25(3) provides the following: ‘The Sunda and Lombok Straits is that passage through them by foreign ships
coastal State may without discrimination in is guai-anteed by Article 53 and 54 because the straits are archipelagic
form or in fact among foreign ships, sus- sea lanes. This follows from Article 54, which applies Article 44, dealing
pend temporarily in specified areas of its
territorial sea the innocent passage of fore- with the right of ‘transit passage’ through straits used for international
ign ships if such suspension is essential for navigation, mututis mutandis, to archipelagic sea lanes passage. Article
the protection of its security, including 44 prohibits the suspension of ‘transit passage’, which is the modified
weapons exercises. Such suspension
shall take effect only after having been regime which applies in these archipelagic sea lanes. However, in
duly publicised’. September 198X Indonesia had yet to designate appropriate archipelagic

502 MARINE POLICY November 1990

 The Indonesian Straits incident: transit or archipelagic sea lanes passage?

sea lanes, a fact which Mr Alatas claimed was responsible for the
‘misunderstanding’ which occurred between Australia and Indonesia.”
However, this claim does not seem relevant given that Article 53(12)
provides that if no sea lanes are designated then ‘the right of archipela-
gic sea lanes passage may be exercised through the routes normally used
for international navigation’. Given the evidence already presented, it
would seem hardly possible to deny that these two straits are not such
routes. Hence, while the wider regime of ‘archipelagic waters’ applies to
all the waters within the Indonesian archipelago, the more particular
regime of ‘archipelagic sea lanes passage’ applies to designated sea lanes
and shipping routes which are normally used for international naviga-
tion within the archipelago. The right of ‘archipelagic sea lanes passage’
would therefore seem to apply in Sunda and Lombok Straits.

A law of the sea twilight zone?

One of the problems in ascertaining the legal obligations imposed upon
Indonesia regarding passage through Sunda and Lombok Straits is the
uncertain status and future of the LOS Convention, which was con-
cluded in 1982 and has 159 signatories. As of 1 March 1989, 40
instruments of ratification had been deposited with the Secretary-
General of the United Nations.‘* Indonesia ratified the Convention
without any declaration on 3 February 1986. None of the other maritime
powers which are thought to have objected to Indonesia’s closure of the
Sunda and Lombok Straits had ratified the LOS Convention in 1988;
however, Australia, Japan, New Zealand, and the USSR were all
signatories.
With the LOS Convention not yet in effect,73 what status did the Part
IV archipelagic regime have? Antigua and Barbuda, Cape Verde,
Comoros, Fiji, Indonesia, Kiribati, Maldives, Mauritius, the Philip-
“Op tit, Ref 11; see A.M. Muhjiddin, pines, Sao Tome and Principe, the Solomon Islands, Trinidad and
‘Some aspects that should be considered Tobago, Tuvalu and Vanuatu had all implemented an internal
in designating Indonesia’s sea lanes’, in
Van Dyke et al, op cit. Ref 49, pp 214-218 archipelagic regime by 1987.74 Whether these individual archipelagic
for a discussion of the factors considered regimes have gained international recognition is difficult to gauge,
by Indonesia in designating appropriate though statements made at the time of the straits’ closure by Senator
sea lanes.
“Law of the Sea Bulletin, No 13, May Evans did not give any indication that Australia rejected Indonesia’s
1989, pp 1-7; Article 308(l) provides that archipelagic claim. The USA, which has refused to sign the LOS
the LOS Convention shall enter into force Convention, has also expressly recognized Indonesia’s archipelagic
one year afler the receipt of the sixtieth
instrument of ratification. claims.75 At the very least, states which have ratified the LOS Conven-
73At the time of the straits’ closures only 35 tion can be taken as recognizing the concept, while those which have
states had ratified the LOS Convention; on signed the LOS Convention can be seen as giving it tacit approval.
whether the LOS Convention will enter into
force, see D.L. Larson, ‘When will the UN What this shows is that until the LOS Convention comes into force,
Convention on the Law of the Sea come enormous difficulties exist in defining the rights and duties of ratifying
into effect?‘, Ocean Development and In- States, signatory States and non-signatory States. One commentator has
ternational Law, Vol20, 1989, pp 175-202.
74Repori of the Secretary-General, 5 described this interim period prior to the LOS Convention coming into
November 1987, UN Dot A/42/688, p 6. force as a ‘twilight zone’7h and this may go some way to explain the
“See ‘Remarks of the Secretary of State references made by Senator Evans and Mr Alatas to the ‘legal grey area’
(U.S.), George P. Shultz and the Minister
for Foreign Affairs (Indonesia), Ali Alatas, regarding the closure of the straits. Given then that Indonesia is a party
at the signing of Double Taxation Conven- to the LOS Convention, what are its obligations? All State parties are
tion, Foreion Ministry (Jakarta)‘, 11 July required by Article 300 to ‘fulfil in good faith the obligations assumed’
1988, Foreign Mini&r,. Jakarta (provided
by the United States Information Service by the LOS Convention and not act so as to abuse the rights, jurisdiction
and on file with author). and freedoms recognized therein. Yet does this article have any impact
76G. Triaas. ‘The 1982 Convention on the upon States that have ratified the LOS Convention prior to it actually
Law of %e’ Sea: a legal twilight zone?‘,
Maritime Studies, No 39, March/April coming into force? In fact the same question can be asked of all the
1988, p 2. provisions in the LOS Convention; is Indonesia bound to implement

MARINE POLICY November 1990 503

The Indonesian Straits incident: transit or archipelagic sea lanes pas.sagr?

and observe the provisions of the LOS Convention prior to the

necessary 60 ratifications being received‘?

Vienna Convention on the Law of Treaties

While the LOS Convention does not provide any answers to these
questions, Article 18 of the 1969 Vienna Convention on the Law of
Treaties (Vienna Convention)” does provide a clear answer regarding
states that have ratified a treaty. The article provides:

A State is obliged to refrain from acts which would defeat the object and
purpose of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty
subject to ratification, acceptance or approval, until it shall have made its
intention clear not to become a party to the treaty, or
(b) it has expressed its consent to be bound by the treaty, pending the entry into
force of the treaty and provided that such entry into force is not unduly delayed.

Article 18 of the Vienna Convention would therefore seem to restrain

States which have ratified the LOS Convention from acting in a manner
which would defeat its ‘object and purpose’ during this interim period
pending actual entry into force. In applying Article 18 to the Indonesian
closure of Sunda and Lombok Straits it must therefore be asked whether
the act of closure was likely to defeat the ‘object and purpose’ of the
LOS Convention? In a review of Article 18 and like obligations,
Professor M.A. Rogoff concludes that three principles exist with respect
to its application. They are:

(1) the obligation in its present form imposes no affirmative duty upon
a signatory to do certain acts or to carry out specific provisions of
the treaty;
“Op tit, Ref 69; and see I. Sinclair, The (2) a signatory may engage in normal activities incident to its sovereign-
Vienna Convention on the Law of Treaties, ty after signature but prior to entry into force, even though the
2 ed, Manchester University Press, Man- effect of a particular activity may be to reduce the benefit of the
chester, 1984, pp 42-44.
bargain for the other signatory or signatories;
“M.A. Rogoff, ‘The international legal
obligations of signatories to an unratified (3) a signatory state may do those acts whose consequences would not
treaty’, Maine Law Review, Vol32, 1980, p render provisions of the treaty impossible of performance when the
263 at p 297; see M.E. Villiger, Customary
treaty enters into force.7x
lntemational Law and Treaties, Martinus
Nijhoff, Dordrecht, 1985, pp 315323 for
further discussion of Article 18. Using the Rogoff test, Indonesia could claim that it had not breached
‘%ee T. Hassan, ‘Good faith in treaty Article 18 by closing passage through the straits. Rather, in the first
formation’, Virginia Journal of lntemational place, closure of the straits was a normal act of sovereignty under
Law, Vol21,1981, p 443 at pp 452-456 for
reference to standards imposed by an Arti- Indonesian law as it had applied to these straits, and secondly this
cle 18 like obligation in customary interna- particular straits’ closure was such an isolated act that it could not
tional law prior to the Vienna Convention render other provisions of the LOS Convention impossible of perform-
entering into force.
“See J.K. Gamble, Jr and M. Frankowska, ance upon the Convention entering into force.‘” Therefore while
‘The significance of signature to the 1982 permanent closure of the straits may have led to a possible breach of
Montego Bay Convention on the Law of Article 18,‘” it is difficult to argue that the temporary closure of the
the Sea’, Ocean Development and Inter-
national Law, Vol 14, 1984, p 134 where it straits in September 1988, an act which from reports did not in fact
is suggested that only an ‘irreversable’ act affect shipping, could be classified as an act detrimental to the LOS
such as mining of the deep seabed would Convention. Repeated closure of the straits may constitute such an act,
in fact constitute a breach of Article 18 with
respect to the LOS Convention. but September 1988 was the first reported closure since the conclusion
“For further discussion as to what acts of UNCLOS III.8’
would be likely to defeat the object and Indonesia is not a party to the Vienna Convention however, and while
purpose of the LOS Convention, see ibid,
pp 133-l 38. a strong argument does exist that an Article 18 like obligation exists in
82/hid, pp 125-128. customary international law, 82 it would seem difficult to impose a strict

504 MARINE POLICY November 1990


83/hid, p 126 where the issue is raised of
whether the Vienna Convention could in
any case apply to the LOS Convention
because of the involvement of non-parties
to both Conventions.
84For a contrary view of Indonesia’s adher-
ence to the LOS Convention, see T.L.
McDorman, ‘lmpiementatjon of the LOS
Convention: options, impediments, and
ASEAN states’, Ocean Development and
/nfernationa/ Law, Vol 18, 1987, p 291.
85Triggs, op tit, Ref 76, p 8; and see S.
Mahmoudi, ‘Customary international law
and transit passage’, Ocean Development
and International Law, Vol 20, 1989, pp
157-l 74 where it is speculated that ‘transit
passage’ may also have entered into force
as customary international law because of
its inherent link with a 12-mile territorial
sea.
86A~ an example of this see, Law of the
Sea 6~iietin, No 12, December 1988, pp
9-10 where a declaration made by the
Philippines when rati~ing the LOS Con-
vention brought about an objection from
Australia in regard to the ‘understanding’
expressed on the archipelagic regime.
‘See J. Grolin, ‘The future of the law of
the sea: consequences of a non-treaty or
non-universal treaty situation’, Ocean De-
velopment and International Law, Vol 13,
1983, p 23.
“Larson, op dt, Ref 34, at 422.
MARINE POLICY November 1990
The Indonesian Straits incident: transit or archipelagic sea lanes passage?
application of Article 18, or a like obligation, upon Indonesia. This is
due to:
(1) its failure to support Article 18 at the Vienna Conference on the
Law of Treaties;
(2) its non-signature of the Vienna Convention; and
(3) the fact that a single closure of Sunda and Lombok Straits could not
be classified as an attempt to defeat the ‘object and purpose’ of the
LOS Convention.*”
In these circumstances, the minimum that could be expected is that
pending entry into force of the LOS Convention and the application of
Article 300, Indonesia is obliged to observe the spirit of the Convention
during this interim period. The recognition given by Indonesian officials
during debate over the straits’ closures in September and October 1988
to the provisions in the LOS Convention, especially concerning the right
of passage and the need to declare appropriate sea lanes, would seem to
indicate that Indonesia has at the least adhered to this standard.“4
Does the LOS Convention represent customary international
law?
Another complication arises, if, despite the LOS Convention not yet
having entered into force, its provisions are recognized as being
customary international law. Such a claim cannot be made with respect
to all aspects of the Convention, especially Part XI dealing with mining
of the deep seabed. However, despite the perception of many States
that the LOS Convention is a ‘package’ of law of the sea provisions,
some commentators claim that already Part V dealing with the ‘exclu-
sive economic zone’ has entered into force as customary international
law.s5 What then is the position with respect to Part IV of the LOS
Convention and its creation of an archipelagic regime? Some argument
can be made for the archipelagic regime already having entered into
force in international law, especially given the previous State practice of
Indonesia and the Philippines and the official or implied recognition
given to these practices by many States. However, the specific provi-
sions dealing with innocent passage through archipelagic waters and
archipelagic sea lanes passage were all negotiated at UNCLOS III and
have yet to gain the necessary international recognition*6 and consistent
implementation and application that would be necessary for them to
have become part of customary international 1aw.s’ A contrary view is
taken by Larson who argues that during this interim period, the LOS
Convention is ‘an approximate codification of customary international
law as it pertains to transit, innocent, and archipelagic sea lanes
passage’.ss It can therefore be seen that Indonesia’s rights, obligations
and duties prior to the LOS Convention coming into force, by way of
either the Convention or customary international law, certainly invoke
a ‘legal grey area’ which can lead to confusion and misunderstanding.
How far will Indonesia pursue wawasan nusantara?
It was recognized during UNCLOS III that the implementation of a
successful regime for international straits and archipelagoes would have
to involve delicate compromises between different interests. This is
evidenced by the careful wording in Parts III and IV of the Convention
505
 as the respective rights. duties and obligations of both the users and
controllers of these waterways is carefully laid out. But, despite the
careful negotiations and wording in the LOS Convention, Indonesia’s
closure of Sunda and Lombok Straits indicates that there are still some
gaps in the law of the sea. This incident shows that there is no settled
customary or convention-based law dealing with the rights of archipela-
gic States to suspend passage by shipping through their waters due to the
conduct of naval exercises. Australia’s swift reaction to Indonesia’s
closure of Sunda and Lombok Straits is evidence of that, and also of the
very distinct competing interests that archipelagic and maritime States
have when it comes to the matter of passage by international shipping
through archipelagic or straits waters.“” The very diverse nature of these
interests can also be conducive to conflict as was shown in the C’orfU
Channel Case. The Australian reaction to Indonesia’s closure of the
straits shows that maritime States will seek to ensure that rights which
were guaranteed to their commercial and naval shipping by the LOS
Convention are recognized. If the LOS Convention does not eventually
enter into force or lapses due to the lack of support given to it by the
Western maritime powers, Indonesia will therefore need to ensure that
its archipelagic regime is well recognized by the international commun-
ity if it wishes the WUWUSN?Z nmanturu concept to be respected and its
legal manifestation to become part of customary international law. The
support of nearby neighbours such as Australia will in that event be
vital.
However, the history of Indonesia’s pursuit of its goal of a united
nation of islands in which the land and waters are seen as one would
perhaps indicate that it may not be satisfied with the archipelagic regime
recognized in the LOS Convention.“” The action taken in September
1988 is consistent with the approach Indonesia took in the late 1950s and
early 1960s, which was at that time considered to be inconsistent with
existing customary international law and the newly concluded 1958
Geneva Convention. Whether Indonesia is planning to commence
another campaign to gain regional and international recognition of its
particular understanding of the archipelagic concept as applied to
Indonesian waters remains to be seen, but history would indicate that
Indonesia is prepared to break new ground in this area of international
law and patiently work towards its recognition. Part IV of the LOS
Convention is evidence of that and consequently due recognition must
be given to Indonesia’s diplomatic skills and patience in this area and its
“See D.A. Colson, ‘The United States, the
law of the sea, and the Pacific’, in J.M. Van
determination to put in place an Indonesian concept of the archipelago
Dyke, ed, Consensus and Confrontation: which challenges existing international law. The stance taken by In-
The Unired States and the Law of the Sea donesia during the next decade in defending its archipelagic claims,
Convention, Law of the Sea Institute, Hon-
olulu, 1985, p 43.
either within the confines of the LOS Convention regime or outside it,
9oWisnomoerti, op cif, Ref 41, pp 39G397. will be of continuing interest to law of the sea observers.

506 MARINE POLICY November 1990