Journal Pre-proof

FIR AGREEMENT INDONESIA – SINGAPORE: WHAT ARE THE LEGAL

IMPLICATIONS?

Adhy Riadhy Arafah, Aktieva Tri Tjitrawati, Alifia Nuril Bais, Firnida Hanan
Nurkhalisha
PII: S2405-8440(24)05739-6
DOI: https://doi.org/10.1016/j.heliyon.2024.e29708
Reference: HLY 29708

To appear in: HELIYON

Received Date: 5 July 2023

Revised Date: 2 April 2024
Accepted Date: 14 April 2024

Please cite this article as: FIR AGREEMENT INDONESIA – SINGAPORE: WHAT ARE THE LEGAL
IMPLICATIONS?, HELIYON, https://doi.org/10.1016/j.heliyon.2024.e29708.

This is a PDF file of an article that has undergone enhancements after acceptance, such as the addition
of a cover page and metadata, and formatting for readability, but it is not yet the definitive version of
record. This version will undergo additional copyediting, typesetting and review before it is published
in its final form, but we are providing this version to give early visibility of the article. Please note that,
during the production process, errors may be discovered which could affect the content, and all legal
disclaimers that apply to the journal pertain.

© 2024 Published by Elsevier Ltd.

 FIR AGREEMENT INDONESIA – SINGAPORE: WHAT ARE THE LEGAL
IMPLICATIONS?
Adhy Riadhy Arafah,1*, Aktieva Tri Tjitrawati2, Alifia Nuril Bais 3, Firnida Hanan
Nurkhalisha4.
1,2,3,4
Faculty of Law, Universitas Airlangga, Indonesia.
*Corresponding author. Email: adhy@fh.unair.ac.id

ABSTRACT
This paper explores the implications of Indonesia's agreement to delegate the Flight Information
Region (FIR) of air navigation services to Singapore, specifically in the airspace of the Riau and
Natuna islands, as stated in Presidential Regulation Number 109 of 2022. Using the normative
juridical method, this study examines the intricate details of the agreement, with a focus on its

of
potential legal consequences for Indonesia's national and international obligations.

ro
Although Indonesia retains sovereignty over its territory, this analysis scrutinizes the nuanced
provisions of the agreement and their implications, particularly in terms of the technical aspects of

-p
air traffic services provided by the Singapore Air Traffic Services Provider above Indonesia's
territories, which the agreement does not explicitly delineate the responsibilities or shared
re
consequences in law. The purpose of this paper is to elucidate Indonesia's increased responsibility
under the new agreement and emphasize the importance of a careful approach to its
lP

implementation. By exploring the multifaceted dimensions of national and international interests,

this study seeks to highlight the imperative for Indonesia to navigate the agreement prudently.
na

Ultimately, this analysis aims to provide a comprehensive understanding of Indonesia's

obligations, potential challenges, and essential considerations under the renewed agreement of
ur

2022, underscoring the significance of a balanced approach in safeguarding Indonesia's interests

on both national and international fronts.
Jo

Keywords: Air Navigation Services; Delegation; Responsibility.

INTRODUCTION
With a large territory and strategic position in the Southeast Asia region, Indonesia significantly
contributes to aviation safety activities. However, the fulfillment of the safety standards in air
navigation services within its jurisdiction can be challenging. In regard to its air navigation
services, which entail international safety standards and jurisdiction over its own air space,
Indonesia decided for the first time in the International Civil Aviation Organization (ICAO)
meeting to delegate its 'jurisdiction' in air navigation services over the Natuna and Riau islands to
Singapore in 1973. This decision arose from the 1st Regional Air Navigation (RAN) Meeting for
the Asia-Pacific Region in Honolulu (Supriyadi et al. 2020).

Over the course of more than three decades after that delegation, Indonesia has made several
attempts to reclaim it in several RAN Meetings but has been unsuccessful. The recent enactment
of the Indonesian Aviation Act (Act Number 1 of 2009) leaves the government no choice but to
reclaim national control, mandating that the Indonesian National Air Traffic Service Provider
(LPPNPI) assume responsibility for the services delegated to Singapore by 2024 as stated in
Article 458:
“The airspace of Indonesia, where had been delegated to other countries under the
agreement, must be evaluated and served by the National Navigation Service
Provider no later than fifteen years after this Law applies.”

The first delegation in air traffic services above the Natuna and Riau islands was legally formalized
through the 'Agreement Between the Government of the Republic of Singapore on the Realignment
of the Boundary Between the Singapore Flight Information Region and the Jakarta Flight
Information Region' in 1995 and it was successfully ratified into Indonesian national Law in
Indonesian President Decree Number 7 of 1996. This agreement, in adherence to international
requirements as a source of international law, carries a fulfillment according to the Statute of the
International Court of Justice, Article 38 (1), which states:

of
1. International conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;

ro
2. International custom, as evidence of general practice accepted as law;
3. The general principles of law recognized by civilized nations;

-p
4. Subject to the provision of Article 59 of the statute, judicial decisions, and the teachings
of the most highly qualified publicists of the various nations as subsidiary means for
re
the determination of rules of law.”
lP

Furthermore, the most practiced sources of international air law are treaties, conventions, and other
instruments that are binding under international law, multilaterally and bilaterally. Therefore, the
na

parties of the agreements have legally binding obligations in international law to which the treaty
creates the rights and responsibilities of the parties in the agreement (Diederiks-Verschoor et al.
2012:8). In the case of the Überlingen accident, the German government and Swiss air navigation
ur

provider company, Sky-Guide, made a joint decision to manage the airspace above Überlingen.
However, they had not yet signed the Letter of Agreement that typically aligns with the principles
Jo

established by the International Treaties Convention of 1969 (VCLT). Unfortunately, this decision
had legal ramifications when the accident occurred (Simatupang 2016).

Nevertheless, while this historical context and legal framework are established, this study aims to
delve deeper into the implications for Indonesia under international law arising from the ratified
agreement between Indonesia and Singapore in 2022. To bolster the foundation of this inquiry,
this paper will address a complete description of relevant cases, a comprehensive literature review
within the domain, and a focused elucidation of objectives and limitations. It will scrutinize the
legal consequences and obligations concerning the agreement, aiming to offer a meticulous
analysis rooted in both historical context and international legal principles.

METHODOLOGY
This research aims to explore the consequences of the agreement between Indonesia and
Singapore, which was ratified in 2022, in light of the established historical and legal framework
within the context of international law. To deal with this matter in a comprehensive manner, the
study adopts a normative juridical methodological approach.
This study employs a conceptual approach and primarily uses the normative juridical method to
examine the international legal framework established in the Chicago Convention of 1944 on
International Civil Aviation. The analysis also evaluates the implications of the delegation
agreement in navigation services in 2022 between Indonesia and Singapore on the issue of
sovereignty within the airspace of the respective states.
To understand the legal landscape, this conceptual framework relies on a comprehensive review
of primary resources, including international conventions, national laws related to aviation, and
international standards and recommended practices. Furthermore, the foundational understanding
of the legal landscape is complemented by secondary sources, such as scholarly books, peer-
reviewed journals, and credible online news reports.

of
EXPLORING AIR NAVIGATION SERVICES DELEGATION AND STATE
SOVEREIGNTY IN INTERNATIONAL AVIATION LAW

ro
The authority of a state to exert control over its territory (jurisdiction) is closely tied to its

-p
sovereignty, which is the most critical aspect of international law principles. The right,
furthermore, in air law, is recognized in Article 1 of the Chicago Convention 1944 on International
re
Civil Aviation (Chicago Convention 1944). Based on this legal principle, every state in the world
shall respect the sovereign rights of other states (Abdurrasyid 2009).
lP

Within the realm of jurisdiction, a state is granted the power to exert authority over all individuals
na

and entities within its territorial limits, including the provision of air navigation services. As air
space activities transcend borders, it is universally recognized that a state's jurisdiction may extend
to aircraft operating within the territories of other states (Pramono 2016).
ur

However, aviation operations are not limited to a single territory, but are also classified as a
Jo

transnational activity. Therefore, when aircraft flights cross into another territory, they require
guidance from ground officers. The state below the air space is responsible for providing the
service to the aircraft, as mentioned in Article 28 of the Chicago Convention 1944:
“Each contracting State undertakes, so far as it may find practicable, to:
Provide, in its territory, airports, radio services, meteorological services and
other air navigation facilities to facilitate international air navigation, in
accordance with the standards and practices recommended or established from
time to time, pursuant to this Convention;”

ICAO member States are obligated to standardize air navigation services at aerodromes and in air
space, as per Annex 11 of the Chicago Convention 1944. This requirement necessitates the
provision of air navigation services in the specified areas, which should conform to the established
standards (Abeyratne 2012). Article 25 of the Chicago Convention 1944 mandates that the
principle of determination also applies to aircraft in distress. Furthermore, it stipulates that every
member state of the International Civil Aviation Organization (ICAO) must provide any feasible
measures of navigation assistance to distressed aircraft flying within its airspace.
There exist various reasons why numerous nations opt to transfer their responsibilities to other
states or international organizations. These reasons may include geographical positioning,
effectiveness, and capability to offer services. In situations where a state chooses to delegate its
responsibilities of serving and providing air navigation services in the airspace, a cross-border air
navigation services agreement must be established to stipulate the provisions of the delegation
(Antwerpen 2008:95). Thus, agreements between two countries or between countries and
international organizations should consider the interests of transboundary or air traffic services.
This may include the option to transfer authority or legal enforcement competencies, as informed
by other states. The agreements should be formal and fair, accommodating the needs of all parties
involved.

The obligation to make an agreement in the delegation of air traffic services is stated in Standard
2.1 of Annex 11 (Air Traffic Services) of the Chicago Convention 1944:
“Contracting States shall determine … those portions of air space and those

of
aerodromes where air traffic services will be provided. They shall
thereafter arrange for such services to be established and provided …

ro
except that, by mutual agreement, a State may delegate to another State the
responsibility for establishing and providing air traffic services in flight

-p
information regions, control areas or control zones extending over the
territories of the former.”
re
It is essential to emphasize that the phrase "by mutual agreement" implies that both parties, the
lP

delegating state, and the delegated state, must derive mutual benefits from the agreement. This
reciprocal benefit may manifest in various risk forms, such as economic, political, social, or
na

strategic benefits. Moreover, the ‘notes’ of this provision does not regulate the status and condition
of the sovereignty of the delegating state by stating:
“If one state delegates to another state the responsibility for the provision of air
ur

traffic services over its territory, it does not without derogation of its national
sovereignty. Similarly, the providing State’s responsibility is limited to technical
Jo

and operational considerations and does not extend beyond those pertaining to
the safety and expedition of aircraft using the concerned air space."

The explanation provided in the ‘notes’ (Farouq 2019) indicates the potential issues of sovereignty
that might be discussed or asked during negotiation or after the delegation agreement has been
signed. Hence, the parties of the agreement shall consider the national interest of each party in
relation to their international obligation for air safety.

In Europe, for example, there are numerous cross-border agreements in which states take part.
These agreements adhere to a shared principle that stipulates that a specific airspace area can only
be governed by a single air traffic service provider at any given moment. Additionally, the
agreements are negotiated and ratified at a different level of government or sometimes negotiated
between two air traffic service providers without government intervention. In such cases, the
agreement is not qualified as an international public bilateral or multilateral agreement, instead is
qualified as an international private bilateral or multilateral cross-border agreement (Eurocontrol
2019).
The agreements in question were established through practical measures, and their implementation
was effective without requiring the full involvement or formal recognition of governments. These
agreements were primarily related to air traffic services, and the entities involved did not see the
need to regulate them formally as bilateral or multilateral agreements between governments. It was
acknowledged by both parties that these transboundary agreements were only loosely connected
to legal circumstances and were more focused on practical cooperation and mutual benefits
(Schubert 2003). Despite the lack of formal recognition, the agreements were successfully
implemented and played a significant role in facilitating air traffic between the relevant regions.

Though an agreement is necessary for air navigation delegation, there is currently no particular
international agreement model governing the transfer of Air Traffic Services between countries or
international organizations. Typically, existing agreement models follow the principles outlined in
the International Treaties Convention of 1969 (VCLT). As such, signing or ratifying an agreement
in accordance with international law automatically binds the parties to the agreement, as per the

of
principle of pacta sunt servanda (Uçaryılmaz 2019).

ro
THE AGREEMENT ON THE DELEGATION OF INDONESIA AIR NAVIGATION

-p
SERVICES TO SINGAPORE
The agreement between Indonesia and Singapore is a fundamental constitution for delegating air
re
traffic services. In order to extend the services of an Air Traffic Control (ATC) provider to a
neighboring sovereign territory for operational reasons, a bilateral agreement must be established
lP

and approved by both involved parliaments. This is a critical matter as it pertains to the extension
of a nation's sovereign power into foreign territory. Allowing the execution of foreign sovereign
na

power on another state's territory can have significant implications for the fundamental nature of
a nation (Giemulla 2011:55).
ur

The transfer of air traffic services to another country or entity is a widespread practice that aims to
maintain a safety and efficient flow of air traffic across different nations. This is particularly
Jo

important when dealing with high-speed air traffic that travels through the airspace of multiple
countries. The delegation in these operations pertains to the provision of air traffic services in a
particular area of their airspace to other providers of air traffic services. These providers have
received an operating license and are subject to regulatory compliance and level enforcement
capacities (Huang 2009:35–42). Moreover, the delegating state's exercise of authority is limited to
national requirements related to air traffic services.

Under Article 263 of the Indonesian Aviation Act 2009, several reasons which justify the
delegation of national air traffic services to other countries are:
1. Flight route structure;
2. Air traffic flows; and
3. Aircraft movement efficiency

However, the transfer of air traffic services from Indonesia to Singapore above the Riau and
Natuna islands is based on the historical precedent established during the first Asia – Pacific
Regional Air Navigation (RAN) Meeting in 1973 in Honolulu, United State of America (USA).
As per the resolution of the inaugural World Air Navigation Meeting in 1946, the meeting decision
was to convene a pragmatic and consultative forum aimed at charting out a comprehensive
roadmap of the challenges and protocols related to the authorization and technology of air traffic
amenities and services that are essential for global air transport in the designated region (ICAO
1946).

The Regional Air Navigation (RAN) meetings for the Asia-Pacific were held every ten years from
1973 until 1993. In general, the Annual Meeting of Air Navigation is divided into several regional
geographical positions such as African (AFI); Asia-Pacific (ASIA/PAC); Caribbean (CAR);
European (EUR); Middle East (MID); North-American (NAM); North-Atlantic (NAT); and
South-American (SAM) (Pelsser 2023). The meetings serve as a place to discuss the problems and
developments of air safety, standards, and rules, including a forum for its members to delegate or
reclaim their rights in air traffic control to or from another state. Furthermore, regional Air
Navigation Plan (ANP) issues are also discussed or amended during these meetings, which are
partly subject to the ICAO Council's approval. Nevertheless, the ICAO currently acknowledges

of
the updating of an ANP by rotating the draft revision, without necessarily convening a meeting.

ro
Since the second Asia – Pacific RAN Meeting in 1983 (Wahyudin et al. 2022) and the third
meeting in 1993, Indonesia has consistently attempted to regain control of air traffic services states

-p
in every ICAO formal and bilateral meeting. The reasons for this are based on the reality that the
delegating state (Indonesia) has always been the disadvantaged party since the delegation has been
re
working. At the next meeting, Indonesia made an attempt to regain control of air traffic services
during the third RAN meeting in 1993 that held in Singapore. At the meeting, Indonesia claimed
lP

to have fulfilled the minimum requirements for the facilities and human resources required in the
second meeting. However, no decision was made on this issue during the 1993 meeting, which
na

was also the last regional air navigation meeting (Nugraha 2018). The meeting also did not discuss
the legal issues and consequences arising from the delegation of Indonesia’s air space to Singapore
without an international agreement. It was discovered that there was no legal justification for the
ur

transfer of air navigation services from Indonesia as the delegating state to Singapore as the
delegated state until 1995.
Jo

The first delegation of air navigation services above Riau and Natuna islands from Indonesia to
Singapore was formally signed by the “Agreement Between the Government of the Republic of
Singapore on the Realignment of the Boundary Between the Singapore Flight Information Region
and the Jakarta Flight Information Region” happened in 1995. The agreement was successfully
ratified into national law through Indonesian President Decision Number 7/1996. Moreover, the
agreement has been replaced by a new agreement at the beginning of 2022 and ratified by
Indonesia in Presidential Regulation Number 109 of 2022.

According to Article 458 of the Indonesian Aviation Act of 2009, it is required that the FIR above
Riau and Natuna island be taken over prior to 2024. To achieve this, a renewal agreement of the
1995 agreement has been signed by both governments in 2022. Upon reviewing the delegation
agreement provisions of both agreements, it is clear that Indonesia's position remains largely
unchanged. The agreement of 1995 in Article 2 Paragraph 2, governs Indonesia's delegation of air
navigation services from the surface to an unlimited height for Sector B and up to 37,000 feet for
Sector A. In addition, the 2022 agreement in Article 2 Paragraph 1 and 2, indicates that Indonesia
delegated navigation services from the surface to 37,000 feet to Singapore in sectors A and B.
Hence, Singapore still has effective control in giving air navigation services to all aircraft flying
above the Riau and Natuna islands. However, to respond to the new agreement, Indonesia has
claimed the control by not delegating to the unlimited height level for air navigation control at
sectors A and B. Indonesia has successfully ‘regained the control and unified the area control’ at
altitude above 37,000 feet in air navigation services above the Riau and Natuna islands.

The agreement of 2022 has a structure that comprises of two distinct levels of agreements. Upon
the fact, it can be observed that the agreement has been segregated into two parts. The first
agreement, signed by the Ministry of Transportation of Indonesia and the Ministry of
Transportation of Singapore and has been successfully ratified by Indonesia through a Presidential
Regulation that has been published to the public. The primary agreement serves as the overarching
agreement for the other technical agreement. Nonetheless, the second agreement, known as the
Letter of Operational Coordination Agreement (LOCA), has yet to be disclosed to the general
public. While the second agreement emphasizes technical aspects, the primary legal

of
responsibilities of the state can be located in the first agreement.

ro
Furthermore, despite hopes that the new agreement in 2022 would address the issue of
responsibility delegation, it appears that Indonesia will continue to bear the full responsibility for

-p
all navigation services activities within its airspace served by Singapore. The delegation provisions
outlined in Article 2 of the agreement are solely focused on technical delegation from Indonesia
re
to Singapore, similar to the agreement of 1995. However, there is no mention of delegation of
responsibility or any legal consequences that may arise from Singapore providing air navigation
lP

services above Indonesia's territory, such as liability for recovery damages.

na

Therefore, it's worth noting that Singapore is potentially responsible for its services in many
aspects of safety elements required by ICAO. This includes the possibility of obligation for any
recovery damage associated with service failures, as well as the requirement to offer compensation
ur

if necessary. In the absence of specific provisions governing responsibility delegation from

Indonesia to Singapore, Indonesia retains liability for accidents caused by technical faults from the
Jo

Singapore Air Navigation operator.

INDONESIA’S RESPONSIBILITY THROUGH THEIR AIR TRAFFIC CONTROLLERS

State responsibility in providing air traffic services, pursuant to Article 28 of the Chicago
Convention, has been interpreted and divided into two categories by Niels van Antwerpen: The
first category involves the responsibility for providing air navigation services, while the second
category pertains to the responsibility of providing those services in compliance with the ICAO
Standard and Recommended Practices (SARP's) (Antwerpen 2008:113). In the case of a failure
that causes damage by the state’s actions, the state's responsibility is also followed by its liability
for compensation to the victim. It is important to note that the word “liability” has consequences
that are not arising as a breach of international law(Young 2003). Thus, in cases of state liability,
the state is subject to its own domestic laws, whereby a fixed liability system exists and the state
takes direct responsibility for damages caused by the air traffic service entity in charge (Antwerpen
2008:203).

Typically, the state government is responsible for providing and managing air traffic services
within its airspace. As a result, any liability related to these services is linked to the state that
provides them. If an accident results in losses and a claim for compensation is made, the
responsible party for liability would be the state (Vrbaski 2013). Nevertheless, the liability of the
state for loss due to the air traffic controller must be permanent liability under the state, despite the
entities providing services being no longer government institutions but corporatized or privatized
entities (Schubert 1997). This is because, according to Article 28 of the Chicago Convention 1944,
the responsibility in service is provided to the state, not to the private entity.

In addition, the nature of air navigation services is commonly served by entities of the
governmental structure, and the server is civil servants. In cases where government employees are
responsible for providing air traffic services, the state holds accountability for the actions of its
employees and agents while carrying out their official duties (Cheng 1997). As a result, if an air
traffic controller is a government employee, any action or inaction on their part would be
considered a state act.

of
Presently, there is no international or regional convention which regulate the liability provisions
of the ATC. The liability of the ATC is always governed by national laws, which have usually

ro
offered a satisfactory framework (Schubert 2011:51–63). Indonesian air navigation services are
provided by state-owned enterprises, and therefore not administered directly by a state organ, as

-p
per Indonesian Government Regulation Number 77 of 2012.
re
The initiative to introduce uniformity into the liability norms governing air traffic control came in
the 1960s when air traffic controllers were served solely by governmental entities. Upon reviewing
lP

the liability regimes, the legal commission concluded that there exists a notable void in domestic
laws regarding state liability. This spectrum ranges from complete state liability to complete
na

impunity of state government against all claims, including those related to air traffic control
services (Sasseville 1985).
ur

Furthermore, the recent FIR delegation agreement of 2022 outlines specific guidelines for the
placement of Indonesian Air Traffic Controllers at the Singapore Air Traffic Control Centre
Jo

(SATCC), as outlined in Article 3 of this agreement. Therefore, this arrangement has implications
for the broader authority of the state with regards to legal matters. This move indicates the
extension of state jurisdiction beyond national territories, in compliance with international
regulations on navigation services as a general trend (Kopela 2016). Although jurisdiction
agreements are more commonly found in cross-border commercial agreements, they also play a
crucial role in cross-border air navigation services. The jurisdiction agreement specifies the
enforceable rights, and the court retains the discretion to determine court jurisdiction based on
procedural considerations (Ang 2021).

There are concerns regarding the jurisdiction of the Indonesian-Singapore agreement as it lacks
provisions to regulate the placement of the air traffic controller at SATCC. This may lead to
questions regarding the legality of the Indonesian Air Traffic Controller's duty, as it is performed
in Singaporean jurisdiction despite overseeing Indonesian airspace (Arafah et al. 2022:15–18). It
could be argued that this duty falls under Indonesia's obligation to provide services above its
territory as outlined in Article 28 of the Chicago Convention, but is being carried out in
Singaporean territory.
In addition, questions may arise regarding jurisdiction in the event of an accident caused by
technical reasons during the air traffic controller's work. Which law will apply for claiming
compensation - the national law of the air traffic controller's citizenship or the national law of the
location where they were controlling air traffic?

Air Navigation Services refer to the services provided by a state to aircraft passing through its
national airspace. These services are governed by the Law, and the rights and obligations of both
the service provider and users are clearly defined in an agreement. It is important to note that the
provision of air navigation services is subject to international regulations and the state's
jurisdictional practices (Early et al. 1973).

For recovering loss resulting from the negligence of the employees or staff of the providing state,
the state providing the service has an obligation to compensate on behalf of its agents or staff.
Regarding the application of law in a claim against the state providing the service, it is subject to

of
domestic laws and the jurisdiction courts of that state. Furthermore, the delegating state has legal
recourse to seek compensation for expenses incurred due to loss or damage caused by the

ro
negligence of the providing state, its employees, or any other authorized representative. However,
such claims must be pursued in the national courts and adhere to the domestic laws of the providing
country (Eurocontrol 2019).
-p
re
In many state practices, the air traffic controller, in doing its work, has been protected by its
national Law. The protection, known as immunity (Levy 1968), is conferred by applying the air
lP

traffic controller's national law of citizenship rather than the jurisdiction of other states' laws. In
Indonesia, the word “immunity” as a privilege of the Air Traffic Controller is not stated clearly in
na

national regulations. The Indonesian Aviation Act in Article 271 Paragraph 1 solely states that
“The Government shall be responsible for flight navigation service operation for aircraft operated
within the air space being served.”
ur

However, at the legislative level, there is no regulation or any interpretation regarding the
Jo

responsibility of the Indonesian government even in the Article 271, including the provision of
Indonesian Air Traffic Controller protection. Consequently, to protect Indonesian air traffic
controllers, a legislation implementing Indonesia's jurisdiction over its air traffic controllers is
required, in accordance with the duties stated in Article 28 of the Chicago Convention 1944.

The absence of a clause delegating state jurisdiction in the agreement between Indonesia and
Singapore for Indonesian Air Traffic Controllers placed at the Singapore Air Traffic Control
Centre (SATCC) demonstrates that the Indonesian ATC is subject to Singapore's jurisdiction.
Accordingly, the Indonesian government may find it difficult to establish the legal basis to protect
the immunity for Indonesian Air Traffic Controllers.
THE RATIFICATION OF THE DELEGATION AGREEMENT UNDER THE
PRESIDENTIAL AGREEMENT

Indonesian Law on International Agreement of 2000 proposed in Article 10, “regulates any
international agreement that can be ratified by Law in relation to:
a. political issue, peace, defense, and security issues of the country;
 b. changes in the territory or determination of the territorial boundaries of the Republic of
Indonesia;
c. sovereignty or sovereign rights of the state;
d. human rights and the environment;
e. the establishment of new legal rules;
f. foreign loans and/or grants.”
While the first delegation agreement was signed in 1995, Indonesia, as stated earlier, had ratified
the agreement under the Presidential Decree of the 1996. Furthermore, the second agreement of
2022 that replaced the first agreement was also ratified at the same level in the Presidential
Regulation. However, the first agreement was signed and ratified before Indonesia had established
a national Law concerning International Agreements.

The ratification of air traffic services delegation issue through Presidential Decree by the
Indonesian government is a technical matter and not related to national interest or sovereignty

of
(Sunda 2022). Nevertheless, this issue has a direct connection to the territory of the state below,
which is a sovereign state as mentioned in Article 2 of the Chicago Convention:

ro
“For the purposes of this Convention the territory of a State shall be deemed to be
the land areas and territorial waters adjacent thereto under the sovereignty,

-p
suzerainty, protection or mandate of such State.”
re
The recognition of state sovereignty through its air space above the land and water territory is also
stated in Article 2 Paragraphs (1) and (2) of the United Nations Convention of the Law of the Sea
lP

(UNCLOS) 1982:
(1) “The sovereignty of a state extends, beyond its land territory and its internal
waters and, in the case of an archipelagic State, its archipelagic waters, to a
na

belt of sea adjacent to its coast, described as the territorial sea.

(2) This sovereignty extends to the air space over the territorial sea as well as to
ur

its bed and subsoil.”

The fact is that the air space of Indonesia is served for its air navigation by Singapore, which means
Jo

that both countries need to ratify the delegation agreement for these services. Hence, the delegation
agreement will take a position as a recognition of the sovereignty of each party and the sovereign
rights that may be enjoyed by both parties. In addition, Article 10 of the Indonesian Law Number
24 of 2000 on International Agreement states that ratification through Law level is required for
any international agreement related to Indonesia's sovereignty or sovereign rights, as outlined in
point (C), which means that the delegation agreement is not a part of Article 10.

Furthermore, the Indonesian government said that delegation is limited and has been done by
around 55 countries in the world (Directorate General Civil Aviation of Indonesia 2022). Thus,
ratification through a Presidential Regulation is considered sufficient, and it is not necessary for it
to be ratified by Law. Hence, the Indonesian government at the legislative process through the
agreement into national law had never opened to the public until ratification by Presidential
Regulation was released.

The interpretation of Article 10 of Indonesian Law Number 24 Year 2000 was provided by the
Indonesian Constitutional Court decision (Indonesian Constitutional Court 2018). The court stated
that their interpretation stands as follows:
 Article 10 of Law Number 24 Year 2000 (Statute Book of the Republic of Indonesia
Year 2000 Number 185, Supplement to the Statute Book of the Republic of
Indonesia Number 4012) is contrary to the Constitution of the Republic of
Indonesia of 1945 and has no legally binding as long as it is interpreted that only
the types of international agreements as mentioned in letters a to f in Article a quo
require the approval of the House of Representative so that only those types of
agreements whose ratification is carried out by Law.
According to the authors' legal analysis, the Court's ruling necessitates the Law level to ratify all
international agreements, encompassing the delegation of air traffic services agreement, that have
consequences for the public interest, government rulings, and legal outcomes (Huda, Heriyanto,
and Wardhana 2021).

The other reason Indonesia has agreed to Article 6 of the agreement, which allows Singapore to

of
collect navigation services charges on behalf of the Indonesian government. This agreement does
not involve any territorial rights of Indonesia. Instead, the Indonesian government will assume

ro
legal responsibility for any risk related to Singapore's air navigation services above the Riau and
Natuna islands. The reason behind this is that Singapore provides the necessary services in

-p
Indonesia's territory, and Indonesia benefits from the charges collected by Singapore.
re
In addition, the general principle for charging navigation services states that civil aviation
operations should only be charged for services and functions that are provided for, directly related
lP

to, or ultimately beneficial to them. This principle also establishes an effective procedure for users
to collect charges. It is possible to benefit from a territory without providing services, but the
charge for navigation services should be based on the services and functions that are provided for,
na

directly related to, or ultimately beneficial for civil aviation operations. (International Civil
Aviation 2012). This is interpreted by Francois that the charges “should not be asked to meet costs
ur

which are not properly allocable to them” (Huet 2011). In a nutshell, the air navigation charges
shall include the whole cost of services. The ICAO principles for air traffic services charging the
Jo

cost consists of air traffic services, credit control and enforceable recovery procedures, following
transparent allocation, justification, and genuine user dialogue.

It is important for Indonesia to consider the Draft Articles on the Responsibility of States for
Internationally Wrongful Acts. These articles outline the responsibility of a state for any act or
omission that can be attributed to it under international law and that violates the state's international
responsibilities (Christenson 1990). This means that if Indonesia commits an act that is considered
internationally wrongful, it will be held accountable and responsible for it. Therefore, it is crucial
for Indonesia to fully understand and abide by these articles in order to avoid any legal
consequences.

It is possible for nations to manage air navigation services within their airspace by utilizing
government personnel and corporate or private entities. Neglecting this responsibility and
accountability could be interpreted as a breach of the state's international obligations (Antwerpen
2008:116). As a result, the state in whose territory air navigation services are being provided is
responsible for ensuring that the objectives are met in its airspace. This recognition of culpability
highlights the importance of enforcing international responsibility for air navigation services.
This provision extends to situations where a state, under the administration of public law,
authorizes another state to exercise its rights. In the case of the provision of air traffic services
across borders, the authorizing state may choose to delegate the responsibility of air traffic services
within its airspace to the air traffic service authority of another state or an international
organization, thereby relinquishing its domestic jurisdiction over the matter (Koremenos 2008).
Therefore, in the delegation of air navigation services between Indonesia and Singapore, it should
also be followed by a delegation of responsibility and liability.

Although there is no clear indication about who bears the responsibility and liability in this specific
matter, it's worth noting that there is a hint in the explanatory note of Article 2.1.1 Annex 11 of the
Chicago Convention 1944. This note states that if a state assigns its duties for providing air
navigation services within its territory to another state, it does so without derogation its national
sovereignty. However, the next explanatory note utilizes ambiguous language stating that “the
providing state’s responsibility is limited to technical and operational considerations and does not

of
extend beyond those pertaining to the safety and expedition of aircraft using that air space.”

ro
Initially, it may seem that the term implies the automatic transfer of state responsibilities from the
delegating state to the providing state when air traffic services are transferred. However, if a near

-p
miss or mid-air collision occurs due to an error or omission by the air traffic service provider, the
state that offered the service above the airspace of the delegating state has failed to meet the safety
re
objectives for air navigation services in that airspace (Hathaway 2008). Therefore, rearranging
state responsibility among the parties can be formulated by bilateral or multilateral agreements
lP

where the terms of the agreement are based on the consent of the parties.
na

When a state chooses to assign its rights to another state, it is crucial to take into account the
delegation of responsibility and liability in addition to the transfer of rights. Without also
delegating responsibility and liability, the delegation may only extend to technical duties and not
ur

encompass regulatory or supervisory roles. Even if, this could lead to the delegating state retaining
the power to regulate and oversee the assigned entity. However, to guarantee a comprehensive
Jo

delegation of rights, it is imperative to delegate both responsibility and liability along with the
transfer of rights (Erotokritou 2012).

Learning from the Überlingen case, the collision between two aircraft on 1 July 2000, the Court
of German in District of Konstanz stated that German country as the below state was liable for the
accident under decision of German national law, regardless of the fact that the air traffic services
were served by the Swiss air navigation entity, named Sky-Guide, which is located at Switzerland,
a country the neighbour of German was because the delegation agreement had not signed yet by
both parties (Ehlers 2007).

Therefore, it should be mentioned in an Article of the delegation agreement that Singapore, as the
providing service country, will be responsible for any losses that result from its negligence, or the
negligence of its employees or any other person acting on its behalf, with regards to Indonesia's
position. Additionally, in accordance with the provisions of this agreement, the delegating state
has the right to make a claim against the providing state to recover damages for any costs or harm
incurred as a result of loss or damage caused by the negligence of the providing state, its
employees, or any other person acting on its behalf.
Based on the complexity of the consequences of the air navigation delegation agreement between
Indonesia and Singapore, it is determined that Indonesia must place the agreement under
legislation rather than Presidential Regulation. This is in accordance with Indonesian Law and the
decision of the Indonesian Constitutional Court. Ratifying the agreement under Presidential
Regulation without a specific consensus on the responsibility and liability clause would imply that
Indonesia, as the below state, is entirely responsible for any consequences that may arise from
Singapore Air Traffic Control Centre (SATCC)'s provision of air navigation services. Therefore,
the agreement must be ratified by Law with the approval of the House Representative.

CONCLUSION
The agreement between Indonesia and Singapore regarding Air Navigation Services conforms to
the standards set forth in Annex 11 of the Chicago Convention 1944. Nevertheless, the agreement

of
to delegate Flight Information Region (FIR) in 2022 lacks clarity in terms of the specific roles,
responsibilities, and liabilities between Indonesia and Singapore. This has resulted in Indonesia

ro
being held accountable for services provided by Singapore's Air Traffic Control agency, without
a clear understanding of shared responsibilities.

-p
The absence of jurisdictional delegation provision for Indonesian Air Traffic Controllers working
re
at the Singapore Air Traffic Control Centre (SATCC) raises concerns about their protection under
Singaporean jurisdiction. Any technical issues or errors that occur may require investigation under
lP

the lex delicti principle, which could bring Singapore's jurisdiction to apply.
In conclusion, the Indonesian government established the delegation agreement through a
na

Presidential Regulation, which appears to have circumvented the mandates outlined in Article 458
of the Indonesian Aviation Act Number 1 Year 2009, Article 10 of the Indonesian Law on
ur

International Agreement Number 24 Year 2000 juncto Indonesian Constitutional Court Decision
Number: 13/PUU-XVI/2018. Given the hierarchy of laws where Presidential Regulations hold a
Jo

subordinate position to these laws, the agreement ought to be placed on the same level as the Law.

Data availability
No data available in the manuscript. Data included in article and references.

Question Response
Data Availability

Sharing research data helps other

researchers evaluate your findings, build
on your work and to increase trust in your
No
article. We encourage all our authors to
make as much of their data publicly
available as reasonably possible. Please
note that your response to the following
questions regarding the public data
availability and the reasons for potentially
not making data available will be available
alongside your article upon publication.

Has data associated with your study been

deposited into a publicly available
repository?
Please select why. Please note that this
statement will be available alongside your
article upon publication.
as follow-up to "Data Availability

Sharing research data helps other

of
researchers evaluate your findings, build
on your work and to increase trust in your

ro
article. We encourage all our authors to
make as much of their data publicly

-p
available as reasonably possible. Please Data included in article/supp.
note that your response to the following material/referenced in article
re
questions regarding the public data
availability and the reasons for potentially
lP

not making data available will be available

alongside your article upon publication.
na

Has data associated with your study been

deposited into a publicly available
ur

repository?
Jo

"

REFERENCES
1. Abdurrasyid, Priyatna. 2009. “State Sovereignity in Airspace.” Indonesian Journal of
International Law 6(4). doi: 10.17304/ijil.vol6.4.215.
2. Abeyratne, Ruwantissa. “Air Navigation Law.” Air Navigation Law 9783642258350
(March 1, 2012): 1–267. https://doi.org/10.1007/978-3-642-25835-0/COVER.
3. Arafah, Adhy Riadhy, Ardyta Pramudya Wardani, Kharisma Kusuma Wijaya, Alfan
Zakiyanto, and Erlisa Akhlakul Karimah. 2022. Pengantar Hukum Udara:
Perkembangan Dan Isu-Isu Terpilih. Airlangga University Press.
4. Agreement Between Government of the Republic of Singapore on the Realignment of the
Boundary Between the Singapore Flight Information Region and the Jakarta Flight
Information Region. (1995).
5. Agreement Between the Government of the Republic of Indonesia and the Government
of the Republic of Singapore on the Realignment of the Boundary between the Jakarta
 Flight Information Region and the Singapore Flight Information Region (2022).
6. Ang, Lance. 2021. “Party Autonomy, Venue Risk and Jurisdiction Agreements–the
Singapore Position Reappraised.” Journal of Private International Law 17(2):281–307.
doi: 10.1080/17441048.2021.1953256.
7. Antwerpen, Niels Van. 2008. Cross-Border Provision of Air Navigation Services with
Specific Reference to Europe : Safeguarding Transparent Lines of Responsibility and
Liability. Wolters Kluwer Law & Business.
8. Cheng, Bin. Studies in International Space Law. Clarendon Press, 1997.
9. Christenson, Gordon A. 1990. “Attributing Acts of Omission to the State.” Michigan
Journal of International Law 12(2):312–70.
10. Diederiks-Verschoor, I. H. Philepina (Isabella Henrietta Philepina), Pablo Mendes de
Leon, and M. A. (Legal adviser) Butler. 2012. An Introduction to Air Law. Kluwer Law
International.
11. Directorate General Civil Aviation of Indonesia. 2022. “Kesepakatan Penyesuaian FIR

of
Sudah Dipersiapkan Dengan Matang Dan Mendatangkan Manfaat Bagi Indonesia
Kementerian Perhubungan Republik Indonesia.” Retrieved March 24, 2024

ro
(https://dephub.go.id/post/read/kesepakatan-penyesuaian-fir-sudah-dipersiapkan-dengan-
matang-dan-mendatangkan-manfaat-bagi-indonesia).

-p
12. Early, Stephen B., Jr. Garner, William S., Martin C. Ruegsegger, and Steven S. Schiff.
1973. “The Expanding Liability of Air Traffic Controllers.” Journal of Air Law and
re
Commerce 39(4):599–624.
13. Ehlers, P. Nikolai. 2007. “Case Note: Lake Constance Mid-Air Collision: Bashkirian
lP

Airlines v. Federal Republic of Germany.” Air and Space Law 32(1):75–79. doi:
10.54648/aila2007007.
na

14. Erotokritou, Chrystel. 2012. “The Legal Liability of Air Traffic Controllers.” Inquiries
Journal/Student Pulse 4(2):1/4.
15. Eurocontrol. 2019. Common Format Letter of Agreement Between ATS Unit -
ur

EUROCONTROL GUIDELINES.
16. Farouq, Sahar. 2019. “Investigating Discourse Markers in the Annexes of the
Jo

International Civil Aviation Organization.” Southern African Linguistics and Applied

Language Studies 37(1):77–90. doi: 10.2989/16073614.2019.1625275.
17. Giemulla, Elmar M. 2011. “Chicago System: Genesis and Main Characteristics.” P. 786
in International and EU Aviation Law: selected issues. Wolters Kluwer International B
V. The Netherlands.
18. Hathaway, Oona A. 2008. “International Delegation and State Sovereignty.” Law and
Contemporary Problems 71(1):115–49.
19. Huang, Jiefang. 2009. Aviation Safety through the Rule of Law - ICAO’s Mechanisms and
Practices. Kluwer Law International BV.
20. Huet, François. “The Regulation of Air Navigation Charges.” In The Regulation of Air
Navigation Charges, Achieving the Single European Sky: Goal and Challenges, 149–50.
Wolters Kluwer Law & Business, 2011.
21. Huda, Ni’matul, Dodik Setiawan Nur Heriyanto, and Allan Fatchan Gani Wardhana.
2021. “The Urgency of the Constitutional Preview of Law on the Ratification of
International Treaty by the Constitutional Court in Indonesia.” Heliyon 7(9):e07886. doi:
10.1016/j.heliyon.2021.e07886.
22. ICAO. “Provisional International Civil Aviation Organization Interim Council, Fourth
 Session – Minutes of the Second Meeting (Doc. 1524 C/137),” 1946.
23. Indonesian Constitutional Court Decision Number: 13/PUU-XVI/2018 (2018).
24. Indonesian President Decree Number 7 Year 1996 on Ratification of Agreement Between
Government of the Republic of Singapore on the Realignment of the Boundary Between
the Singapore Flight Information Region and the Jakarta Flight Information Region
(1996).
25. “International Civil Aviation Organization Approved by the Council and Published by Its
Decision ICAO’s Policies on Charges for Airports and Air Navigation Services” 9th
Edition (2012).
26. Kopela, Sophia. 2016. “Port-State Jurisdiction, Extraterritoriality, and the Protection of
Global Commons.” Ocean Development and International Law 47(2):89–130. doi:
10.1080/00908320.2016.1159083.
27. Koremenos, Barbara. 2008. “When, What, and Why Do States Choose to Delegate?” Law
and Contemporary Problems 71(1):150–80

of
28. Levy, Stanley J. 1968. “The Expanding Responsibility of the Government Air Traffic
Controller.” Fordham Law Review 36(3):401–24.

ro
29. Nugraha, Ridha Aditya. 2018. “Flight Information Region above Riau and Natuna
Islands: The Indonesian Efforts to Regain Control from Singapore.” Zeitschrift Fur Luft-

-p
Und Weltraumrecht German Journal of Air and Space Law 67(2):236–53.
30. Pelsser, Albert. 2023. “The Postal History of ICAO.” Retrieved February 10, 2023
re
(https://applications.icao.int/postalhistory/the_regional_offices_and_the_regional_organi
zation.htm).
lP

31. Pramono, Agus. 2016. “Air Sovereignty and No-Fly Zones.” Diponegoro Law Review
1(1):99. doi: 10.14710/dilrev.1.1.2016.99-112.
na

32. Sasseville, Helene. 1985. “Air Traffic Control Agencies: Fault Liability vs. Strict
Liability.” Annals of Air & Space Law 10:239–49.
33. Schubert, F. P. 1997. “Warsaw Claims and ATC Liability: Addressing the Global
ur

Dimension of Aviation Liability.” Annals of Air and Space Law 22:237–60.

34. Schubert, F. P. 2011. “The Liability of Air Navigation Services Providers : Some Lessons
Jo

from the Single European Sky.” P. 406 in Achieving the Single European Sky: Goal and
Challenges, edited by P. M. de Leon and D. C. Crespo. Wolters Kluwer Law
International.
35. Schubert, Francis. 2003. “The Financing of Cross Border Air Traffic Services - A Legal
Perspective.” Annals of Air and Space Law 28:121–48.
36. Simatupang, Andika Immanuel. 2016. “State Responsibility Over Safety and Security on
Air Navigation of Civil Aviation in International Law.” Indonesian Journal of
International Law 13(2). doi: 10.17304/ijil.vol13.2.649.
37. Sunda, Ujang. 2022. “Perjanjian FIR Dengan Singapura Tegaskan Kedaulatan
Indonesia.” Retrieved November 22, 2022 (https://rm.id/baca-
berita/internasional/111112/perjanjian-fir-dengan-singapura-tegaskan-kedaulatan-
indonesia).
38. Supriyadi, A. A., RAG. Gultom, MDM. Manessa, and A. Setyanto. 2020. “Strategy for
the Alignment of Singapore Flight Information Region Over Indonesian Airspace.” The
Open Transportation Journal 14(1):204–13. doi: 10.2174/1874447802014010204.
39. Uçaryılmaz, Talya. 2019. “The Principle of Good Faith in Public.” Estudios de Deusto.
Revista de Derecho Público 68(1):43–60. doi: https://doi.org/10.18543/ed-68(1)-
 2020pp43-59.
40. Vrbaski, Lazar. 2013. “Liability of Air Navigation Service Providers: Towards an
International Solution.” Air and Space Law 38(Issue 1):33–46. doi:
10.54648/aila2013003.
41. Wahyudin, Dudi, Arry Bainus, R. Widya Setiabudi Sumadinata, and Arfin Sudirman.
2022. “Indonesian Diplomacy Against Singapore in Acquisition of Flight Information
Region ( FIR ).” Journal of Legal, Ethical and Regulatory Issues I 25(2):1–10.
42. Young, Barbara E. 2003. “Responsibility and Liability for Unlawful Interference in
International Civil Aviation.” Air and Space Law 28(1):1–81. doi:
10.54648/AILA2003009.

of
ro
-p
re
lP
na
ur
Jo
 Adhy Riadhy Arafah
Faculty of Law, Universitas Airlangga
Jalan Dharmawangsa Dalam Selatan, Surabaya

April 02, 2024

To Whom It May Concern,

of
We wish to submit an original research article entitled “FIR Agreement Indonesia – Singapore:

ro
What are the Legal Implications?” for consideration by the Journal of Heliyon. We confirm that
this work is original and has not been published elsewhere, nor is it currently under

-p
consideration for publication elsewhere. re
In this paper, we analyze the FIR agreement between Indonesia and Singapore in 2022 on Air
Navigation delegation that has significantly affected the responsibility of Indonesia as the below
lP

State and Singapore as the controller State. This paper also discusses the protection rights of air
traffic controllers of Indonesia under Singapore's jurisdiction. We believed that this research
provide novelty within its analysis. We believe that this manuscript is appropriate for
na

publication by Journal of Heliyon it scope is relevant to the journal and it possessed a novelty.
ur
Jo

We have no conflicts of interest to disclose.

Please address all correspondence concerning this manuscript to me at adhy@fh.unair.ac.id

Thank you for your consideration of this manuscript.

Sincerely,

Adhy Riadhy Arafah